THE XXXXXX RIVER TRUST
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AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
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AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
made in this ____ day of January, 1997 (as so amended and restated, the
"Declaration of Trust"), by the Trustees hereunder, and by the holders of
shares of beneficial interest to be issued hereunder as hereinafter provided.
WHEREAS, pursuant to Section 10.3 of Article X of the Declaration of
Trust the Trustees of the Trust have determined that the Declaration of Trust
should be amended and restated; and
WHEREAS, the shareholders have duly approved this Declaration of
Trust;
NOW, THEREFORE, the Trustees of this Trust direct that this
Declaration of Trust be filed with the Secretary of State of The Commonwealth
of Massachusetts and that this Declaration of Trust shall take effect as of
the date of filing.
WITNESSETH that
WHEREAS, this Trust was established on July 10, 1987 by an Agreement
and Declaration and Trust of the same date executed and delivered in Boston,
Massachusetts; and
WHEREAS, this Trust was formed to establish a trust fund for the
purpose of investing and reinvesting the assets of insurance company separate
accounts and such other assets as may be held by it; and
WHEREAS, the Trustees have agreed to manage all property coming into
their hands as trustees of a Massachusetts voluntary association with
transferable shares in accordance with the provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold all
cash, securities and other assets, which they may from time to time acquire in
any manner as Trustees hereunder IN TRUST to manage and dispose of the same
upon the following terms and conditions for the pro rata benefit of the
holders from time to time of Shares in this Trust as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
1.1 Name. This Trust shall be known as "The Xxxxxx River Trust,"
and the Trustees shall conduct the business of the Trust under that name or any
other name as they may from time to time determine.
1.2 Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) The "Trust" refers to the Massachusetts business trust
established by Agreement and Declaration of Trust dated July 10, 1987, as
amended from time to time, and as amended and restated herein;
(b) "Trustees" refers to the Trustees of the Trust named herein
or elected in accordance with Article IV;
(c) "Shares" means the equal proportionate transferable units of
interest into which the beneficial interest in the Trust shall be divided from
time to time or, if more than one series or class of Shares is authorized by
the Trustees, the equal proportionate transferable units into which each
series or class of Shares shall be divided from time to time;
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company Act of 1940
and the Rules and Regulations thereunder, all as amended from time to time;
(f) The terms "Affiliated Person", "Assignment", "Commission",
"Interested Person", "Principal Underwriter" and "Majority Shareholder Vote"
(the 67% or 50% requirement of the third sentence of Section 2(a)(42) of the
1940 Act, whichever may be applicable) shall have the meanings given them in
the 1940 Act;
(g) "Declaration of Trust" shall mean this Amended and
Restated Agreement and Declaration of Trust as amended or restated from time
to time; and
(h) "Bylaws" shall mean the Bylaws of the Trust as amended from
time to time.
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ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to provide investors a managed investment
primarily in securities, commodities and other investment media and to carry
on such other business as the Trustees may from time to time determine
pursuant to their authority under this Declaration of Trust.
ARTICLE III
SHARES
3.1 Division of Beneficial Interest. The Shares of the Trust
shall be issued with or without par value and shall be issued in one or
more series as the Trustees may, without shareholder approval, authorize. Each
series shall be preferred over all other series in respect of the assets
allocated to that series. The Shares of any series may be issued in two or
more classes, as the Trustees may, without Shareholder approval, authorize.
Unless the Trustees have authorized the issuance of Shares of a series in two
or more classes, each Share of a series shall represent an equal proportionate
interest in the assets and liabilities of the series with each other Share of
the same series, none having priority or preference over another. If the
Trustees have authorized the issuance of Shares of a series in two or more
classes, then the classes may have such variations as to dividend, redemption,
and voting rights, net asset values, expenses borne by the classes, and other
matters as the Trustees have authorized. The number of Shares authorized shall
be unlimited. The Trustees may from time to time divide or combine the Shares
of any series or of any class of a series into a greater or lesser number
without thereby changing the proportionate beneficial interests in the series
or class.
3.2 Ownership of Shares. The ownership of Shares shall be
recorded on the books of the Trust or a transfer or similar agent. No
certificates certifying the ownership of Shares shall be issued except as the
Trustees may otherwise determine from time to time. The Trustees may make such
rules as they consider appropriate for the issuance of Share certificates, the
transfer of Shares and similar matters. The record books of the Trust as kept
by the Trust or any transfer or similar agent, as the case may be, shall be
conclusive as to who are the Shareholders of each series or class and as to
the number of Shares of each series or class held from time to time by each
Shareholder.
3.3 Investment in the Trust. The Trustees shall accept
investments in the Trust from such persons and on such terms and for such
consideration, which may consist of cash or tangible or intangible property or
a combination thereof, as they from time to time authorize.
All consideration received by the Trust for the issue or sale of
Shares of each series, together with all income, earnings, profits, and
proceeds thereof, including any proceeds
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derived from the sale, exchange or liquidation thereof, and any funds or
payments derived from any reinvestment of such proceeds in whatever form the
same may be shall irrevocably belong to the series of Shares with respect to
which the same were received by the Trust for all purposes, subject only to
the rights of creditors, and shall be so handled upon the books of account of
the Trust and are herein referred to as "assets of" such series.
3.4 No Preemptive Rights. Shareholders shall have no preemptive
or other right to subscribe to any additional Shares or other securities
issued by the Trust.
3.5 Status of Shares and Limitation of Personal Liability. Shares
shall be deemed to be personal property giving only the rights provided in
this instrument. Every shareholder by virtue of having become a Shareholder
shall be held to have expressly assented and agreed to the terms hereof and to
have become a party hereto. The death of a Shareholder during the continuance
of the Trust shall not operate to terminate the same nor entitle the
representative of any deceased Shareholder to an accounting or to take any
action in court or elsewhere against the Trust or the Trustees, but only to
the rights of said decedent under this Trust. Ownership of Shares shall not
entitle the Shareholder to any title in or to the whole or any part of the
Trust property or right to call for a partition or division of the same or for
an accounting, nor shall the ownership of Shares constitute the Shareholders
partners. Neither the Trust nor the Trustees, nor any officer, employee or
agent of the Trust shall have any power to bind personally any Shareholder,
nor except as specifically provided herein to call upon any Shareholder for
the payment of any sum of money or assessment whatsoever other than such as
the Shareholder may at any time personally agree to pay.
ARTICLE IV
THE TRUSTEES
4.1 Election. The number of Trustees shall be as provided in the
Bylaws or as fixed from time to time by the Trustees. The Shareholders may
elect Trustees at any meeting of Shareholders called by the Trustees for that
purpose. Each Trustee shall serve during the continued lifetime of the Trust
until he dies, resigns or is removed, or, if sooner, until the next meeting of
Shareholders called for the purpose of electing Trustees and the election and
qualification of his successor. Any Trustee may resign at any time by written
instrument signed by him and delivered to any officer of the Trust, to each
other Trustee or to a meeting of the Trustees. Such resignation shall be
effective upon receipt unless specified to be effective at some other time.
Except to the extent expressly provided in a written agreement with the Trust,
no Trustee resigning and no Trustee removed shall have any right to any
compensation for any period following his resignation or removal, or any right
to damages on account of such removal.
4.2 Effect of Death, Resignation, etc. of a Trustee. The death,
declination, resignation, retirement, removal or incapacity of the Trustees,
or any one of them, shall not
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operate to annul the Trust or to revoke any existing agency created pursuant
to the terms of this Declaration of Trust.
4.3 Powers. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Trustees, and
they shall have all powers necessary or convenient to carry out that
responsibility. Without limiting the foregoing, the Trustees may adopt Bylaws
not inconsistent with this Declaration of Trust providing for the conduct of
the business of the Trust and may amend and repeal them to the extent that
such Bylaws do not reserve that right to the Shareholders; they may enlarge or
reduce their number, may fill vacancies in their number, including vacancies
caused by enlargement of their number, and may remove Trustees with or without
cause; they may elect and remove, with or without cause, such officers and
appoint and terminate such agents as they consider appropriate; they may
appoint from their own number, and terminate, any one or more committees,
consisting of two or more Trustees, including an executive committee which
may, when the Trustees are not in session, exercise some or all of the power
and authority of the Trustees as the Trustees may determine; they may employ
one or more custodians of the assets of the Trust and may authorize such
custodians to employ subcustodians and to deposit all or any part of such
assets in a system or systems for the central handling of securities, retain a
transfer agent or a Shareholder servicing agent, or both, provide for the
distribution of Shares by the Trust, through one or more principal
underwriters or otherwise, set record dates for the determination of
Shareholders with respect to various matters, and in general delegate such
authority as they consider desirable to any officer of the Trust, to any
committee of the Trustees and to any agent or employee of the Trust or to any
such custodian or underwriter.
Without limiting the foregoing, the Trustees shall have power and authority:
(a) To invest and reinvest cash, and to hold cash uninvested;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate,
write options on and lease any or all of the assets of the Trust;
(c) To act as a distributor of shares and as underwriter of, or
broker or dealer in, securities or other property;
(d) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property; and to execute and
deliver proxies or powers of attorney to such person or persons as the
Trustees shall deem proper, granting to such person or persons such power and
discretion with relation to securities or property as the Trustees shall deem
proper;
(e) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities;
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(f) To hold any security or property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form, or in the
name of the Trustees or of the Trust or in the name of a custodian,
subcustodian or other depository or a nominee or nominees or otherwise;
(g) To allocate assets, liabilities and expenses of the Trust to
a particular series or class of Shares or to apportion the same among two
or more series of classes of Shares, provided that any liabilities or expenses
incurred by a particular series or class of Shares shall be payable solely out
of the assets of that series or class;
(h) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer, any
security of which is or was held in the Trust; to consent to any contract,
lease, mortgage, purchase or sale of property by such corporation or issuer;
and to pay calls or subscriptions with respect to any security held in the
Trust;
(i) To join with other security holders in acting through a
committee depositary, voting trustee or otherwise, and in that connection
to deposit any security with, or transfer any security to, any such committee,
depositary or trustee, and to delegate to them such power and authority with
relation to any security (whether or not so deposited or transferred) as the
Trustees shall deem proper, and to agree to pay, and to pay, such portion of
the expenses and compensation of such committee, depositary or trustee as the
Trustees shall deem proper;
(j) To compromise, arbitrate or otherwise adjust claims in
favor of or against the Trust or any matter in controversy, including but
not limited to claims for taxes;
(k) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(l) To borrow funds;
(m) To endorse or guarantee the payment of any notes or other
obligations of any person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof; and to mortgage and pledge the
Trust property or any part thereof to secure any of or all such obligations;
(n) To purchase and pay for entirely out of Trust property such
insurance as they may deem necessary or appropriate for the conduct of the
business, including without limitation, insurance policies insuring the assets
of the Trust and payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, investment advisers or managers, principal
underwriters, or independent contractors of the Trust individually against all
claims and liabilities of every nature arising by reason of holding, being or
having held any such office or position, or by reason of any action alleged to
have been taken or omitted by any such person
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as Shareholder, Trustee, officer, employee, agent, investment adviser or
manager, principal underwriter, or independent contractor, including any
action taken or omitted that may be determined to constitute negligence,
whether or not the Trust would have the power to indemnify such person against
such liability;
(o) To pay pensions for faithful service, as deemed appropriate
by the Trustees, and to adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement, incentive
and benefit plans, trusts and provisions, including the purchasing of life
insurance and annuity contracts as a means of providing such retirement and
other benefits, for any or all of the Trustees, officers, employees and agents
of the Trust; and
(p) To engage in any other lawful act or activity in which
corporations organized under the Massachusetts Business Corporation Law may
engage.
The Trustees shall not in any way be bound or limited by present or
future law or custom in regard to investments by trustees. Except as otherwise
provided herein or from time to time in the Bylaws, any action to be taken by
the Trustees may be taken by a majority of the Trustees present at a meeting
of Trustees (a quorum being present), within or without Massachusetts,
including any meeting held by means of a conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time and participation by such means
shall constitute presence in person at a meeting, or by written consents of a
majority of the Trustees then in office.
4.4 Payment of Expenses by Trust. The Trustees are authorized to
pay or to cause to be paid out of the principal or income of the Trust,
or partly out of principal and partly out of income, as they deem fair, all
expenses, fees, charges, taxes and liabilities incurred or arising in
connection with the Trust, in connection with the management thereof, or in
connection with the financing of the sale of Shares, including, but not
limited to, the Trustees' compensation and such expenses and charges for the
services of the Trust's officers, employees, any investment adviser, manager,
or sub-adviser, principal underwriter, auditor, counsel, custodian, transfer
agent, shareholder servicing agent, and such other agents or independent
contractors and such other expenses and charges as the Trustees may deem
necessary or proper to incur; provided, however, that all expenses, fees,
charges, taxes and liabilities incurred or arising in connection with a
particular series or class of Shares as determined by the Trustees, shall be
payable solely out of the assets of that series or class.
4.5 Ownership of Assets of the Trust. Title to all of the assets
of each series of Shares and of the Trust shall at all times be considered as
vested in the Trustees.
4.6 Advisory, Management and Distribution. The Trustees may, at
any time and from time to time, contract for exclusive or nonexclusive
advisory and/or management services with any corporation, trust, association
or other organization (the "Manager"), including, without limitation, Alliance
Capital Management, L.P., every such contract to comply with such
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requirements and restrictions as may be set forth in the Bylaws; and any such
contract may provide for one or more Sub-advisers who shall perform all or
part of the obligations of the Manager under such contract and may contain
such other terms interpretive of or in addition to said requirements and
restrictions as the Trustees may determine, including, without limitation,
authority to determine from time to time what investments shall be purchased,
held, sold or exchanged and what portion, if any, of the assets of the Trust
shall be held uninvested and to make changes in the Trust's investments. The
Trustees may also, at any time and from time to time, contract with the
Manager or any other corporation, trust, association or other organization,
appointing it exclusive or nonexclusive distributor or principal underwriter
for the Shares, every such contract to comply with such requirements and
restrictions as may be set forth in the Bylaws; and any such contract may
contain such other terms interpretive of or in addition to said requirements
and restrictions as the Trustees may determine.
The fact that:
(i) any of the Shareholders, Trustees or officers of the
Trust is a shareholder, director, officer, partner, trustee, employee,
manager, adviser, principal underwriter or distributor or agent of or for any
corporation, trust, association, or other organization, or of or for any
parent or affiliate of any organization, with which an advisory or management
contract, or principal underwriter's or distributor's contract, or transfer,
shareholder servicing or other agency contract may have been or may hereafter
be made, or that any such organization, or any parent or affiliate thereof, is
a Shareholder or has an interest in the Trust, or that
(ii) any corporation, trust, association or other
organization with which an advisory or management contract or principal
underwriter's or distributor's contract, or transfer, shareholder servicing or
other agency contract may have been or may hereafter be made also has an
advisory or management contract, or principal underwriter's or distributors
contract, or transfer, Shareholder servicing or other agency contract with one
or more other corporations, trusts, associations, or other organizations, or
has other business or interests shall not affect the validity of any such
contract or disqualify any Shareholder, Trustee or officer of the Trust from
voting upon or executing the same or create any liability or accountability to
the Trust on its Shareholders.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Shareholders shall have such power to vote as is provided for in, and
may hold meetings and take actions pursuant to, the provisions of the Bylaws.
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ARTICLE VI
DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES
6.1 Distributions. The Trustees may each year, or more frequently
if they so determine, distribute to the Shareholders of each series or
class of Shares such income and capital gains, accrued or realized, as the
Trustees may determine, after providing for actual and accrued expenses and
liabilities (including such reserves as the Trustees may establish) determined
in accordance with good accounting practices. The Trustees shall have full
discretion to determine which items shall be treated as income and which items
as capital and their determination shall be binding upon the Shareholders.
Distributions of each year's income of each series or class of Shares shall be
distributed pro rata to Shareholders in proportion to the number of Shares of
each series or class held by each of them. Such distributions shall be made in
cash or Shares or a combination thereof as determined by the Trustees. Any
such distribution paid in Shares will be paid at the net asset value thereof
as determined in accordance with the Bylaws.
6.2 Redemptions and Repurchases. The Trust shall purchase such
Shares as are offered by any Shareholder for redemption, upon the
presentation of any certificate for the Shares to be purchased, a proper
instrument of transfer and a request directed to the Trust or a person
designated by the Trust that the Trust purchase such Shares, or in accordance
with such other procedures for redemption as the Trustees may from time to
time authorize, and the Trust will pay therefor the net asset value thereof,
as next determined in accordance with the Bylaws, less such redemption charge
or fee as the Trustees may determine from time to time. Except as otherwise
determined by the Trustees, payment for said Shares shall be made by the Trust
to the Shareholder within seven days after the date on which the request is
made. The obligation set forth in this Section 2 is subject to the provision
that in the event that any time the New York Stock Exchange is closed for
other than customary weekends or holidays, or, if permitted by rules of the
Commission. During periods when trading on the Exchange is restricted or
during any emergency which makes it impractical for the Trust to dispose of
its investments or to determine fairly the value of its net assets, or during
any other period permitted by order of the Commission for the protection of
investors, such obligation may be suspended or postponed by the Trustees. The
Trust may also purchase or repurchase Shares at a price not exceeding the net
asset value of such Shares in effect when the purchase or repurchase or any
contract to purchase or repurchase is made.
6.3 Redemptions at the Option of the Trust. The Trust shall
have the right at its option and at any time to redeem Shares of any
Shareholder at the net asset value thereof as determined in accordance with
the Bylaws: (i) if at such time such Shareholder owns fewer Shares than, or
Shares having an aggregate net asset value of less than, an amount determined
from time to time by the Trustees; or (ii) to the extent that such Shareholder
owns Shares of a particular series or class of Shares equal to or in excess of
a percentage of the outstanding Shares of that series or class determined from
time to time by the Trustees; or (iii) to the
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extent that such Shareholder owns Shares of the Trust representing a
percentage equal to or in excess of such percentage of the aggregate number of
outstanding Shares of the Trust or the aggregate net asset value of the Trust
determined from time to time by the Trustees.
6.4 Dividends, Distributions, Redemptions and Repurchases. No
dividend or distribution (including, without limitation, any distribution paid
upon termination of the Trust or of any series) with respect to, nor any
redemption or repurchase of, the Shares of any series shall be effected by the
Trust other than from the assets of such series.
ARTICLE VII
COMPENSATION AND LIMITATION OF LIABILITY OF TRUSTEES
7.1 Compensation. The Trustees as such shall be entitled to
reasonable compensation from the Trust; they may fix the amount of their
compensation. Nothing herein shall in any way prevent the employment of any
Trustee for advisory, management, legal, accounting, investment banking,
underwriting, brokerage, or investment dealer or other services and payment
for the same by the Trust.
7.2 Limitation of Liability. The Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing of any
officer, agent, employee, manager or principal underwriter of the Trust, nor
shall any Trustee be responsible for the act or omission of any other Trustee,
but nothing herein contained shall protect any Trustees against any liability
to which he or she would otherwise be subject by reason of wilful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in
the conduct of his or her office.
Every note, bond, contract, instrument, certificate, Share or
undertaking and every other act or thing whatsoever executed or done by or on
behalf of the Trust or the Trustees or any of them in connection with the
Trust shall be conclusively deemed to have been executed or done only in or
with respect to their or his or her capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
ARTICLE VIII
INDEMNIFICATION
8.1 Trustees, Officers, etc. The Trust shall indemnify each of
its Trustees and officers (including persons who serve at the Trust's
request as directors, officers or trustees of another organization in which
the Trust has any interest as a shareholder, creditor or otherwise)
(hereinafter referred to as a "Covered Person") against all liabilities and
expenses, including but not limited to amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and counsel fees
reasonably incurred by any Covered Person in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or
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criminal, before any court or administrative or legislative body, in which
such Covered Person may be or may have been involved as a party or otherwise
or with which such Covered Person may be or may have been threatened, while in
office or thereafter, by reason of being or having been such a Covered Person
except with respect to any matter as to which such Covered Person shall have
been finally adjudicated in any such action, suit or other proceeding (a) not
to have acted in good faith in the reasonable belief that such Covered
Person's action was in or not opposed to the best interests of the Trust or
(b) to be liable to the Trust or its Shareholders by reason of wilful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of such Covered Person's office. Expenses, including
counsel fees so incurred by any such Covered Person (but excluding amounts
paid in satisfaction of judgments, in compromise or as fines or penalties),
shall be paid from time to time by the Trust in advance of the final
disposition of any such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Covered Person to repay amounts so paid to
the Trust if it is ultimately determined that indemnification of such expenses
is not authorized under this Article; provided, however, that either (a) such
Covered Person shall have provided appropriate security for such undertaking,
(b) the Trust shall be insured against losses arising from any such advance
payments or (c) either a majority of the disinterested Trustees acting on the
matter (provided that a majority of the disinterested Trustees then in office
act on the matter), or independent legal counsel in a written opinion, shall
have determined, based upon a review of readily available facts (as opposed to
a full trial type inquiry) that there is reason to believe that such Covered
Person will be found entitled to indemnification under this Article.
8.2 Compromise Payment. As to any matter disposed of (whether
by a compromise payment, pursuant to a consent decree or otherwise)
without an adjudication in a decision on the merits by a court, or by any
other body before which the proceeding was brought, that such Covered Person
either (a) did not act in good faith in the reasonable belief that his action
was in or not opposed to the best interests of the Trust or (b) is liable to
the Trust or its Shareholders by reason of wilful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct
of his or her office, indemnification shall be provided if (a) approved as in
the best interests of the Trust, after notice that it involves such
indemnification, by at least a majority of the disinterested Trustees acting
on the matter (provided that a majority of the disinterested Trustees then in
office act on the matter) upon a determination, based upon a review of readily
available facts (as opposed to a full trial type inquiry) that such Covered
Person acted in good faith in the reasonable belief that his action was in or
not opposed to the best interests of the Trust and is not liable to the Trust
or its Shareholders by reasons of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his
or her office, or (b) there has been obtained an opinion in writing of
independent legal counsel, based upon a review of readily available facts (as
opposed to a full trial type inquiry) to the effect that such Covered Person
appears to have acted in good faith in the reasonable belief that his action
was in or not opposed to the best interests of the Trust and that such
indemnification would not protect such Person against any liability to the
Trust to which he would otherwise be subject by reason of
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wilful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office. Any approval pursuant to this
Section shall not prevent the recovery from any Covered Person of any amount
paid to such Covered Person in accordance with this Section as indemnification
if such Covered Person is subsequently adjudicated by a court of competent
jurisdiction not to have acted in good faith in the reasonable belief that
such Covered Person's action was in or not opposed to the best interests of
the Trust or to have been liable to the Trust or its Shareholders by reason of
wilful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of such Covered Person's office.
8.3 Indemnification Not Exclusive. The right of indemnification
hereby provided shall not be exclusive of or affect any other rights to which
such Covered Person may be entitled. As used in this Article VIII, the term
"Covered Person" shall include such person's heirs, executors and
administrators and a "disinterested Trustee" is a Trustee who is not an
"interested person" of the Trust as defined in Section 2(a)(19) of the
Investment Company Act of 1940, as amended, (or who has been exempted from
being an "interested person" by any rule, regulation or order of the
Commission) and against whom none of such actions, suits or other proceedings
or another action, suit or other proceeding on the same or similar grounds is
then or has been pending. Nothing contained in this Article shall affect any
rights to indemnification to which personnel of the Trust, other than Trustees
or officers, and other persons may be entitled by contract or otherwise under
law, nor the power of the Trust to purchase and maintain liability insurance
on behalf of any such person.
8.4 Shareholders. In case any Shareholder or former Shareholder
shall be held to be personally liable solely by reason of his or her being or
having been a Shareholder and not because of his or her acts or omissions
or for some other reason, the Shareholder or former Shareholder (or his or her
heirs, executors, administrators or other legal representatives or in the case
of a corporation or other entity, its corporate or other general successor)
shall be entitled to be held harmless from and indemnified against all loss
and expense arising from such liability, but only out of the assets of the
particular series of Shares of which he or she is or was a Shareholder.
ARTICLE IX
MISCELLANEOUS
9.1 Trustees, Shareholders, etc. Not Personally Liable, Notice.
All persons extending credit to, contracting with or having any claim
against the Trust or a particular series of Shares shall look only to the
assets of the Trust or the assets of that particular series of Shares for
payment under such credit, contract or claim; and neither the Shareholders nor
the Trustees, nor any of the Trust's officers, employees or agents, whether
past, present or future, shall be personally liable therefor. Nothing in this
Declaration of Trust shall protect any Trustee against any liability to which
such Trustees would otherwise be subject by reason of
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wilful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the office of Trustee.
Every note, bond, contract, instrument, certificate or undertaking
made or issued by the Trustees or by any officer or officers shall give notice
that this Declaration of Trust is on file with the Secretary of The
Commonwealth of Massachusetts and shall recite that the same was executed or
made by or on behalf of the Trust or by them as Trustee or Trustees or as
officers or officer and not individually and that the obligations of such
instrument are not binding upon any of them or the Shareholders individually
but are binding only upon the assets and property of the Trust, and may
contain such further recitals as he or she or they may deem appropriate, but
the omission thereof shall not operate to bind any Trustee or Trustees or
officer of officers or Shareholder or Shareholders individually.
9.2 Trustee's Good Faith Action, Expert Advice, No Bond or
Surety. The exercise by the Trustees of their powers and discretion
hereunder shall be binding upon everyone interested. A Trustee shall be liable
for his or her own wilful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of Trustee, and
for nothing else, and shall not be liable for errors of judgment or mistakes
of fact or law. The Trustees may take advice of counsel or other experts with
respect to the meaning and operation of this Declaration of Trust, and shall
be under no liability for any act or omission in accordance with such advice
or for failing to follow such advice. The Trustees shall not be required to
give any bond as such, nor any surety if a bond is required.
9.3 Liability of Third Persons Dealing with Trustees. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to
the application of any payments made or property transferred to the Trust or
upon its order.
9.4 Duration and Termination of Trust. Unless terminated as
provided herein, the Trust shall continue without limitation of time. The
Trust may be terminated at any time by the vote of Shareholders holding at
least a majority of the Shares of each series entitled to vote or by the
Trustees by written notice to the Shareholders. Any series of Shares may be
terminated at any time by vote of Shareholders holding at least a majority of
the Shares of such series entitled to vote or by the Trustees by written
notice to the Shareholders of such series.
Upon termination of the Trust or of any one or more series of Shares,
after paying or otherwise providing for all charges, taxes, expenses and
liabilities, whether due or accrued or anticipated, of the Trust or of the
particular series as may be determined by the Trustees, the Trust shall, in
accordance with such procedures as the Trustees consider appropriate, reduce
the remaining assets to distributable form in cash or shares or other
securities, or any combination thereof, and distribute the proceeds to the
Shareholders of the series involved, ratably according to the aggregate net
asset value of Shares of such series or class of Shares held by the several
Shareholders of such series or class of Shares on the date of termination.
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9.5 Filing of Copies, References, Headings. The original or a
copy of this instrument and of each amendment hereto shall be kept at the
office of the Trust where it may be inspected by any Shareholder. A copy of
this instrument and of each amendment hereto shall be filed by the Trust with
the Secretary of The Commonwealth of Massachusetts and with the Boston City
Clerk, as well as any other governmental office where such filing may from
time to time be required. Anyone dealing with the Trust may rely on a
certificate by an officer of the Trust as to whether or not any such
amendments have been made and as to any matters in connection with the Trust
hereunder, and, with the same effect as if it were the original, may rely on a
copy certified by an officer of the Trust to be a copy of this instrument or
of any such amendments. In this instrument and in any such amendment,
references to this instrument, and all expressions like "herein", "hereof" and
"hereunder" shall be deemed to refer to this instrument as amended or affected
by any such amendments. Headings are placed herein for convenience of
reference only and shall not be taken as a part hereof or control or affect
the meaning, construction or effect of this instrument. This instrument may be
executed in any number of counterparts each of which shall be deemed an
original.
9.6 Applicable Law. The original Declaration of Trust was
executed and delivered in The Commonwealth of Massachusetts, and the Trust was
created under and is to be governed by and construed and administered
according to the laws of said Commonwealth. The Trust shall be of the type
commonly called a Massachusetts business trust, and without limiting the
provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a trust.
9.7 Amendments. This Declaration of Trust may be amended at any
time by an instrument in writing signed by a majority of the then Trustees
when authorized to do so by vote of Shareholders holding a majority of the
Shares of each series entitled to vote, except that an amendment which shall
affect the holders of one or more series of Shares but not the holders of
all outstanding series shall be authorized by vote of the Shareholders holding
a majority of the Shares entitled to vote of each series affected and no vote
of Shareholders of a series not affected shall be required. Any amendment
which shall affect the holders of Shares of one or more classes of a series
but not the holders of all Shares of a series shall be authorized by vote of
the Shareholders holding a majority of the Shares of such classes affected by
the amendment voting together as a single class, and no vote of Shareholders
of the classes not affected shall be required. Amendments having the purpose
of changing the name of the Trust, of establishing, changing, or eliminating
the par value of the shares or of supplying any omission, curing any ambiguity
or curing, correcting or supplementing any defective or inconsistent provision
contained herein shall not require authorization by Shareholder vote. In
addition to the foregoing, the provisions of this Declaration of Trust may be
amended for any other reason at any time without the vote or consent of
Shareholders, so long as such amendment does not materially adversely affect
the rights of any Shareholder with respect to which such amendment is or
purports to be applicable and so long as such amendment is not in
contravention of applicable law, including the 1940 Act, by an instrument
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signed in writing by a majority of the Trustees (or by an officer of the Trust
pursuant to a vote of a majority of Trustees).
IN WITNESS WHEREOF, the undersigned have executed this Amended and
Restated Declaration of Trust this ____ day of January, 1997.
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