ZURICH MONEY FUNDS
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
WHEREAS, Article IX, Section 4 of the Agreement and Declaration of Trust of
Zurich Money Funds dated August 9, 1985, as amended, provides that the Agreement
and Declaration of Trust may be amended at any time by an instrument in writing
signed by a majority of the then Trustees when authorized so to do by vote of
Shareholders holding a majority of the Shares entitled to vote; and
WHEREAS, the holders of a majority of the Shares entitled to vote have
authorized this Amendment and Restatement of said Agreement and Declaration of
Trust;
NOW, THEREFORE, said Agreement and Declaration of Trust is amended and
restated to read in its entirety as follows:
WITNESSETH
WHEREAS, the Trustees hereunder are desirous of forming a trust for the
purposes of carrying on the business of a management investment company; and
WHEREAS, in furtherance of such purposes, the Trustees are acquiring and
may hereafter acquire assets and properties, to hold and manage 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 and properties 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
Name and Registered Agent
Section 1. This Trust shall be known as Zurich Money Funds 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. The registered agent for the Trust in
Massachusetts shall be CT Corporation System whose address is 0 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx or such other person as the Trustees may from time to time
designate.
Definitions
Section 2. Whenever used herein, unless otherwise required by the context
or specifically provided:
a) The "Trust" refers to the Massachusetts voluntary association
established by this Agreement and Declaration of Trust, as amended from time to
time, pursuant to Massachusetts General Laws, Chapter 182;
(b) "Trustees" refers to the Trustees of the Trust named herein or elected
in accordance with Article IV and then in office;
(c) "Shares" mean 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 under or
pursuant to Article III, the equal proportionate transferable units of interest
into which each such series or class 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 any
successor statute) 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 "vote of a majority of the outstanding
voting securities" shall have the meanings given them in the 1940 Act;
(g) "Declaration of Trust" shall mean this Agreement and Declaration of
Trust as amended or restated from time to time;
(h) "By-Laws" shall mean the By-Laws of the Trust as amended from time to
time;
(i) "Net asset value" shall have the meaning set forth in Section 6 of
Article VI hereof;
(j) The terms "series" or "series of Shares" refers to the one or more
separate investment portfolios of the Trust authorized under or pursuant to
Article III into which the assets and liabilities of the Trust may be divided
and the Shares of the Trust representing the beneficial interest of Shareholders
in such respective portfolios; and
(k) The terms "class" or "class of Shares" refers to the division of Shares
representing any series into two or more classes authorized under or pursuant to
Article III.
ARTICLE II
Nature and Purpose
The Trust is a voluntary association (commonly known as a business trust)
of the type referred to in Chapter 182 of the General Laws of the Commonwealth
of Massachusetts. The Trust is not intended to be, shall not be deemed to be,
and shall not be treated as, a general or a
2
limited partnership, joint venture, corporation or joint stock company, nor
shall the Trustees or Shareholders or any of them for any purpose be deemed to
be, or be treated in any way whatsoever as though they were, liable or
responsible hereunder as partners or joint venturers. The purpose of the Trust
is to engage in, operate and carry on the business of an open-end management
investment company and to do any and all acts or things as are necessary,
convenient, appropriate, incidental or customary in connection therewith.
ARTICLE III
Shares
Division of Beneficial Interest
Section 1. The Shares of the Trust shall be issued in one or more series as
the Trustees may, without Shareholder approval, authorize from time to time.
Each series shall be preferred over all other series in respect of the assets
allocated to that series as hereinafter provided. The beneficial interest in
each series shall at all times be divided into Shares (without par value) of
such series, each of which shall, except as provided in the following sentence,
represent an equal proportionate interest in such series with each other Share
of the same series, none having priority or preference over another Share of the
same series. The Trustees may, without Shareholder approval, divide the Shares
of any series into two or more classes, Shares of each such class having such
preferences and special or relative rights or privileges (including conversion
rights, if any) as the Trustees may determine. The number of Shares authorized
shall be unlimited, and the Shares so authorized may be represented in part by
fractional Shares. The Trustees may from time to time divide or combine the
shares of any series or class into a greater or lesser number without thereby
changing the proportionate beneficial interests in the series or class. Without
limiting the authority of the Trustees set forth in this Section 1 to establish
and designate any further series or class, the Trustees hereby establish and
designate three series of Shares to be known as the "Zurich Money Market Fund,"
"Zurich Government Money Fund" and "Zurich Tax-Free Money Fund." The
establishment and designation of any series or class of Shares in addition to
the foregoing shall be effective upon the execution by a majority of the then
Trustees of an instrument setting forth such establishment and designation and
the relative rights and preferences of such series or class. As provided in
Article IX, Section 1 hereof, any series or class of Shares (whether or not
there shall then be Shares outstanding of said series or class) may be
terminated by the Trustees by written notice to the Shareholders of such series
or class or by the vote of the Shareholders of such series or class entitled to
vote more than fifty percent (50%) of the votes entitled to be cast on the
matter. In the event of any such termination, a majority of the then Trustees
shall execute an instrument setting forth the termination of such series or
class.
Ownership of Shares
Section 2. The ownership and transfer of Shares shall be recorded on the
books of the Trust or its 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 of the Trust, as the case may be, shall be conclusive
as to who are the Shareholders
3
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.
Investment in the Trust; Assets of a Series
Section 3. The Trustees may issue Shares of the Trust to such persons and
on such terms and, subject to any requirements of law, for such consideration,
which may consist of cash or tangible or intangible property or a combination
thereof, as they may from time to time authorize.
All consideration received by the Trust for the issue or sale of Shares of
a particular series, together with all income, earnings, profits, and proceeds
thereof, including any proceeds 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 such
series of Shares 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. Any allocation of the assets of a series
among any classes of Shares of such series shall be made in a manner consistent
with the preferences and special or relative rights or privileges of such
classes.
Right to Refuse Orders
Section 4. The Trust by action of its Trustees shall have the right to
refuse to accept any subscription for its Shares at any time without any cause
or reason therefore whatsoever. Without limiting the foregoing, the Trust shall
have the right not to accept subscriptions under circumstances or in amounts as
the Trustees in their sole discretion consider to be disadvantageous to existing
Shareholders and the Trust may from time to time set minimum and/or maximum
amounts which may be invested in Shares by a subscriber.
Order in Proper Form
Section 5. The criteria for determining what constitutes an order in proper
form and the time of receipt of such an order by the Trust shall be prescribed
by resolution of the Trustees.
When Shares Become Outstanding
Section 6. Shares subscribed for and for which an order in proper form has
been received shall be deemed to be outstanding as of the time of acceptance of
the order therefor and the determination of the net price thereof, which price
shall be then deemed to be an asset of the Trust.
Merger or Consolidation
Section 7. In connection with the acquisition of all or substantially all
the assets or stock of another investment company, investment trust, or of a
company classified as a personal holding company under Federal Income Tax laws,
the Trustees may issue or cause to be issued Shares of a series or class and
accept in payment therefor, in lieu of cash, such assets at their
4
market value, or such stock at the market value of the assets held by such
investment company or investment trust, either with or without adjustment for
contingent costs or liabilities.
No Preemptive Rights, Etc.
Section 8. Shareholders shall have no preemptive or other right to receive,
purchase or subscribe for any additional Shares or other securities issued by
the Trust. The Shareholders shall have no appraisal rights with respect to their
Shares and, except as otherwise determined by the Trustees in their sole
discretion, shall have no exchange or conversion rights with respect to their
Shares.
Status of Shares and Limitation of Personal Liability
Section 9. 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
of the Declaration of Trust and to have become a party thereto. 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.
Shareholder Inspection Rights
Section 10. Any Shareholder or his agent may inspect and copy during normal
business hours any of the following documents of the Trust: By-Laws, minutes of
the proceedings of the Shareholders and annual financial statements of the
Trust, including a balance sheet and financial statements of operations. The
foregoing rights of inspection of Shareholders of the Trust are the exclusive
and sole rights of the Shareholders with respect thereto and no Shareholder of
the Trust shall have, as a Shareholder, the right to inspect or copy any of the
books, records or other documents of the Trust except as specifically provided
in this Section 10 of this Article III or except as otherwise determined by the
Trustees.
ARTICLE IV
The Trustees
Number, Designation, Election, Term, Etc.
Section 1.
(a) Initial Trustee. Xxxxxxx X. Xxxxxxxx, the initial Trustee, appointed
other Trustees pursuant to subsection (c) of this Section 1 and then resigned.
5
(b) Number. The Trustees serving as such, whether named above or hereafter
becoming Trustees, may increase or decrease the number of Trustees to a number
other than the number theretofore determined which number shall not be less than
three nor more than fifteen except during the period prior to any sale of Shares
pursuant to any public offering. No decrease in the number of Trustees shall
have the effect of removing any Trustee from office prior to the expiration of
his term, but the number of Trustees may be decreased in conjunction with the
removal of a Trustee pursuant to subsection (e) of this Section 1.
(c) Term and Election. Each Trustee, whether named above or hereafter
becoming a Trustee, shall serve as a Trustee until the next meeting of
Shareholders, if any, called for the purpose of considering the election or
re-election of such Trustee or of a successor to such Trustee, and until the
election and qualification of his successor, if any, elected at such meeting, or
until such Trustee sooner dies, resigns, retires or is removed. Upon the
election and qualification of a new Trustee, the Trust estate shall vest in the
new Trustee (together with the continuing or other new Trustees) without any
further act or conveyance. Prior to any sale of Shares pursuant to any public
offering, the initial Trustee named above (and any individual appointed by such
initial Trustee to act as sole Trustee) shall have the right to appoint other
persons as Trustees each to serve as Trustees as aforesaid until the first
meeting of Shareholders called for the purpose of the election or re-election of
such Trustee or of a successor to such Trustee.
(d) Resignation and Retirement. Any Trustee may resign his trust or retire
as a Trustee, by written instrument signed by him and delivered to the other
Trustees or to the Chairman of the Board, if any, the President or the Secretary
of the Trust, and such resignation or retirement shall take effect upon such
delivery or upon such later date as is specified in such instrument.
(e) Removal. Any Trustee may be removed for cause at any time by written
instrument, signed by at least a majority of the number of Trustees prior to
such removal, specifying the date upon which such removal shall become
effective. Any Trustee may be removed with or without cause (i) by the vote of
the Shareholders entitled to vote more than fifty percent (50%) of the votes
entitled to be cast on the matter voting together without regard to series or
class at any meeting called for such purpose, or (ii) by a written consent filed
with the custodian of the Trust's portfolio securities and executed by the
Shareholders entitled to vote more than fifty percent (50%) of the votes
entitled to be cast on the matter voting together without regard to series or
class.
Whenever ten or more Shareholders of record who have been such for at least
six months preceding the date of application, and who hold in the aggregate
Shares constituting at least one percent of the outstanding Shares of the Trust,
shall apply to the Trustees in writing, stating that they wish to communicate
with other Shareholders with a view to obtaining signatures to a request for a
meeting to consider removal of a Trustee and accompanied by a form of
communication and request that they wish to transmit, the Trustees shall within
five business days after receipt of such application inform such applicants as
to the approximate cost of mailing to the Shareholders of record the proposed
communication and form of request. Upon the written request of such applicants,
accompanied by a tender of the material to be mailed and of the reasonable
expenses of mailing, the Trustees shall, within reasonable promptness, mail such
6
material to all Shareholders of record at their addresses as recorded on the
books of the Trust. Notwithstanding the foregoing, the Trustees may refuse to
mail such material on the basis and in accordance with the procedures set forth
in the last two paragraphs of Section 16(c) of the 1940 Act.
(f) Vacancies. Any vacancy or anticipated vacancy resulting from any
reason, including without limitation the death, resignation, retirement, removal
or incapacity of any of the Trustees, or resulting from an increase in the
number of Trustees by the other Trustees may (but so long as there are at least
three remaining Trustees at all times subsequent to any sale of Shares pursuant
to any public offering, need not unless required by the 0000 Xxx) be filled
either by a majority of the remaining Trustees, even if less than a quorum,
through the appointment in writing of such other person as such remaining
Trustees in their discretion shall determine or, whenever deemed appropriate by
the remaining Trustees, by the election by the Shareholders, at a meeting called
for such purpose, of a person to fill such vacancy. Upon the appointment or
election and qualification of a new Trustee as aforesaid, the Trust estate shall
vest in the new Trustee, together with the continuing Trustees, without any
further act or conveyance, except that any such appointment or election in
anticipation of a vacancy to occur by reason of retirement, resignation, or
increase in number of Trustees to be effective at a later date shall become
effective only at or after the effective date of said retirement, resignation,
or increase in number of Trustees.
(g) Mandatory Election by Shareholders. Notwithstanding the foregoing
provisions of this Section 1, the Trustees shall call a meeting of the
Shareholders for the election of one or more Trustees at such time or times as
may be required in order that the provisions of the 1940 Act may be complied
with, and the authority hereinabove provided for the Trustees to appoint any
successor Trustee or Trustees shall be restricted if such appointment would
result in failure of the Trust to comply with any provision of the 1940 Act.
(h) Effect of Death, Resignation, Etc. The death, resignation, retirement,
removal or incapacity of the Trustees, or any one of them, shall not operate to
annul or terminate the Trust or to revoke or terminate any existing agency or
contract created or entered into pursuant to the terms of this Declaration of
Trust.
(i) No Accounting. Except under circumstances which would justify his
removal for cause, no person ceasing to be a Trustee as a result of his death,
resignation, retirement, removal or incapacity (nor the estate of any such
person) shall be required to make an accounting to the Shareholders or remaining
Trustees upon such cessation.
Powers
Section 2. The Trustees, subject only to the specific limitations contained
in this Declaration of Trust or otherwise imposed by the 1940 Act or other
applicable law, shall have, without further or other authorization and free from
any power or control of the Shareholders, full, absolute and exclusive power,
control and authority over the Trust assets and the business and affairs of the
Trust to the same extent as if the Trustees were the sole and absolute owners
thereof in their own right and to do all such acts and things as in their sole
judgment and discretion are necessary and incidental to, or desirable for the
carrying out of any of the purposes of the Trust or conducting the business of
the Trust. Any determination made in good faith by the Trustees of the purposes
of the Trust or the existence of any power or authority hereunder shall
7
be conclusive. In construing the provisions of this Declaration of Trust, there
shall be a presumption in favor of the grant of power and authority to the
Trustees. Without limiting the foregoing, the Trustees may adopt By-Laws not
inconsistent with this Declaration of Trust containing provisions relating to
the business of the Trust, the conduct of its affairs, its rights or powers and
the rights or powers of its Shareholders, Trustees, officers, employees and
other agents and may amend and repeal them to the extent that such By-Laws do
not reserve that right to the Shareholders; fill vacancies in their number,
including vacancies resulting from increases in their number, unless a vote of
the Trust's Shareholders is required to fill such vacancies pursuant to the 1940
Act; elect and remove such officers and appoint and terminate such agents as
they consider appropriate; 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 powers and authority of the Trustees as the Trustees may determine;
appoint an advisory board, the members of which shall not be Trustees and need
not be Shareholders; employ one or more investment advisers or managers as
provided in Section 6 of this Article IV; employ one or more custodians of the
assets of the Trust and 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 services 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.
In furtherance of and not in limitation of the foregoing, the Trustees
shall have power and authority:
(a) To invest and reinvest in, to buy or otherwise acquire, to hold, for
investment or otherwise, to sell or otherwise dispose of, to lend or to pledge,
to trade in or deal in securities or interests of all kinds, however evidenced,
or obligations of all kinds, however evidenced, or rights, warrants, or
contracts to acquire such securities, interests, or obligations, of any private
or public company, corporation, association, general or limited partnership,
trust or other enterprise or organization, foreign or domestic, or issued or
guaranteed by any national or state government, foreign or domestic, or their
agencies, instrumentalities or subdivisions (including but not limited to,
bonds, debentures, bills, time notes and all other evidences of indebtedness);
negotiable or non-negotiable instruments; any and all futures contracts;
government securities and money market instruments (including but not limited
to, bank certificates of deposit, finance paper, commercial paper, bankers
acceptances, and all kinds of repurchase agreements);
(b) To invest and reinvest in, to buy or otherwise acquire, to hold, for
investment or otherwise, to sell or otherwise dispose of foreign currencies, and
funds and exchanges, and make deposits in banks, savings banks, trust companies,
and savings and loan associations, foreign or domestic;
(c) To acquire (by purchase, lease or otherwise) and to hold, use,
maintain, develop, and dispose of (by sale or otherwise) any property, real or
personal, and any interest therein;
(d) To sell, exchange, lend, pledge, mortgage, hypothecate, write options
on and lease any or all of the assets of the Trust;
8
(e) 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;
(f) To exercise powers and rights of subscription or otherwise which in any
manner arise out of ownership of securities;
(g) 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
depositary or a nominee or nominees or otherwise;
(h) Subject to the provisions of Article III, to allocate assets,
liabilities, income and expenses of the Trust to a particular series of Shares
or to apportion the same among two or more series, provided that any liabilities
or expenses incurred by a particular series shall be payable solely out of the
assets of that series; and to the extent necessary or appropriate to give effect
to the preferences and special or relative rights or privileges of any classes
of Shares, to allocate assets, liabilities, income and expenses of a series to a
particular class of Shares of that series or to apportion the same among two or
more classes of Shares of that series;
(i) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer, any security or property
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;
(j) 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;
(k) 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;
(l) To enter into joint ventures, general or limited partnerships and any
other combinations or associations;
(m) To borrow funds;
(n) 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;
(o) 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,
9
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 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; and
(p) 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.
The Trustees shall not in any way be bound or limited by any present or
future law or custom in regard to investments by trustees of common law trusts.
Except as otherwise provided herein or from time to time in the By-Laws, any
action to be taken by the Trustees may be taken by a majority of the Trustees
present at a meeting of Trustees (if a quorum by 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 communicate with each other simultaneously 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.
Payment of Expenses, Allocation of Liabilities
Section 3. 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, or in connection with the
management thereof, including, but not limited to, the Trustees' compensation
and such expenses and charges for the services of the Trust's officers,
employees, investment adviser or manager, 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.
The assets of a particular series of Shares shall be charged with the
liabilities (including, in the discretion of the Trustees or their delegate,
accrued expenses and reserves) incurred in respect of such series (but not with
liabilities incurred in respect of any other series) and such series shall also
be charged with its share of any other liabilities. Any allocation of the
liabilities of a series among classes of Shares of that series shall be done in
a manner consistent with the preferences and special or relative rights or
privileges of such classes. The determination of the Trustees shall be final and
conclusive as to the amount of liabilities to be charged to one or more
particular series or class. The Trustees may delegate from time to time the
power to make such allocation to one or more Trustees or to an agent of the
Trust appointed for such purpose. The liabilities with which a series is so
charged are herein referred to as the "liabilities of" such series.
10
Section 4. The Trustees shall have the power, as frequently as they may
determine, to cause each Shareholder to pay directly, in advance or arrears, for
charges for the Trust's custodian or transfer or shareholder service or similar
agent, an amount fixed from time to time by the Trustees, by setting off such
charges due from such Shareholder from declared but unpaid dividends owed such
Shareholder and/or by reducing the number of Shares in the account of such
Shareholder by that number of full and/or fractional Shares which represents the
outstanding amount of such charges due from such Shareholder.
Ownership of Assets of the Trust
Section 5. Title to all of the assets of each series of the Trust and of
the Trust shall at all times be considered as vested in the Trustees.
Advisory, Management and Distribution
Section 6. Subject to a favorable vote of a majority of the outstanding
voting securities of a series of the Trust, the Trustees may on behalf of such
series, at any time and from time to time, contract for exclusive or
nonexclusive advisory and/or management services for such series with a
corporation, trust, association or other organization, every such contract to
comply with such requirements and restrictions as may be set forth in the
By-Laws; and any such contract 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 such series shall be held uninvested and to make changes
in such series' investments. The Trustees may also, at any time and from time to
time, contract with a 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 By-Laws; 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:
(a) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager, advisor,
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 or principal underwriter's or
distributor's contract, or transfer, shareholder services 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
(b) any corporation, trust, association or other organization with which an
advisory or management or principal underwriter's or distributor's contract, or
transfer, shareholder services or other agency contract may have been or may
hereafter be made also has an advisory or management contract, or principal
underwriter's or distributor's contract, or transfer, shareholder services or
other agency contract with one or more other corporations, trusts, associations,
or other organizations, or has other businesses or interests shall not affect
the validity of any such
11
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 or its Shareholders.
ARTICLE V
Shareholders, Voting Powers and Meetings
Voting Powers
Section 1. Subject to the voting provisions of one or more classes of
Shares, the Shareholders shall have power to vote only: (a) for the election or
removal of Trustees as provided in Article IV, Section 1; (b) with respect to
any investment adviser or manager as provided in Article IV, Section 6; (c) with
respect to any termination or reorganization of the Trust or any series or class
thereof to the extent and as provided in Article IX, Section 1; (d) with respect
to any amendment of this Declaration of Trust to the extent and as provided in
Article IX, Section 4; and (e) with respect to such additional matters relating
to the Trust as may be required by law, the 1940 Act, this Declaration of Trust,
the By-Laws or any registration of the Trust with the Securities and Exchange
Commission (or any successor agency) or any state, or as the Trustees may
consider necessary or desirable.
Each whole Share shall be entitled to one vote as to any matter on which it
is entitled to vote and each fractional Share shall be entitled to a
proportionate fractional vote. Notwithstanding any other provision of the
Declaration of Trust, on any matter submitted to a vote of Shareholders all
Shares of the Trust then entitled to vote shall, except to the extent otherwise
required or permitted by the preferences and special or relative rights or
privileges of any classes of Shares, be voted by individual series and not in
the aggregate or by class, except (a) when required by the 1940 Act, Shares
shall be voted in the aggregate and not by individual series; and (b) when the
Trustees have determined that the matter affects only the interests of one or
more series or classes, then only Shareholders of such series or class shall be
entitled to vote thereon. There shall be no cumulative voting in the election of
Trustees. Shares may be voted in person or by proxy.
A proxy with respect to Shares held in the name of two or more persons
shall be valid if executed by any one of them unless at or prior to the exercise
of the proxy the Trust receives a specific written notice to the contrary from
any one of them. A proxy purporting to be executed by or on behalf of a
Shareholder shall be deemed valid unless challenged at or prior to its exercise
and the burden of proving invalidity shall rest on the challenger.
Until Shares of any series or class are issued, the Trustees may exercise
all rights of Shareholders and may take any action required by law, this
Declaration of Trust or the By-Laws to be taken by Shareholders of such series
or class.
Shareholder Meetings
Section 2. Meetings of Shareholders (including meetings involving only one
or more but less than all series or classes) may be called and held from time to
time for the purpose of taking action upon any matter requiring the vote or
authority of the Shareholders as herein provided or upon any other matter deemed
by the Trustees to be necessary or desirable. Such
12
meetings shall be held at the principal office of the Trust as set forth in the
By-Laws of the Trust or at any such other place within the United States as may
be designated in the call thereof, which call shall be made by the Trustees or
the President of the Trust. Meetings of Shareholders may be called by the
Trustees or such other person or persons as may be specified in the By-Laws upon
written application by Shareholders holding at least twenty-five percent (25%)
(or ten percent (10%) if the purpose of the meeting is to determine if a Trustee
is to be removed from office) of the Shares then outstanding of all series and
classes entitled to vote at such meeting requesting a meeting be called for a
purpose requiring action by the Shareholders as provided herein or in the
By-Laws which purpose shall be specified in any such written application.
Shareholders shall be entitled to at least seven days' written notice of
any meeting of the Shareholders.
Quorum and Required Vote
Section 3. The presence at a meeting of Shareholders in person or by proxy
of Shareholders entitled to vote at least thirty percent (30%) of all votes
entitled to be cast at the meeting of each series or class entitled to vote as a
series or class shall be a quorum for the transaction of business at a
Shareholders' meeting, except that where any provision of law or of this
Declaration of Trust permits or requires that the holders of Shares shall vote
in the aggregate and not as a series or class, then the presence in person or by
proxy of Shareholders entitled to vote at least thirty percent (30%) of all
votes entitled to be cast at the meeting (without regard to series or class)
shall constitute a quorum. Any lesser number, however, shall be sufficient for
adjournments. Any adjourned session or sessions may be held within a reasonable
time after the date set for the original meeting without the necessity of
further notice.
Except when a larger vote is required by any provisions of the 1940 Act,
this Declaration of Trust or the By-Laws, a majority of the Shares of each
series or class voted on the matter shall decide that matter insofar as that
series or class is concerned, provided that where any provision of law, this
Declaration of Trust or the By-Laws permits or requires that the holders of
Shares vote in the aggregate and not as a series or class, then a majority of
the Shares voted on any matter (without regard to series or class) shall decide
such matter and a plurality shall elect a Trustee.
Action by Written Consent
Section 4. Any action taken by Shareholders may be taken without a meeting
if Shareholders entitled to vote more than fifty percent (50%) of the votes
entitled to be cast on the matter of each series or class or, where any
provision of law, this Declaration of Trust or the By-Laws permits or requires
that the holders of Shares vote in the aggregate and not as a series or class,
if Shareholders entitled to vote more than fifty percent (50%) of the votes
entitled to be cast thereon (without regard to series or class) (or in either
case such larger vote as shall be required by any provision of this Declaration
of Trust or the By-Laws) consent to the action in writing and such written
consents are filed with the records of the meetings of Shareholders. Such
consent shall be treated for all purposes as a vote taken at a meeting of
Shareholders.
13
Additional Provisions
Section 5. The By-Laws may include further provisions for Shareholders'
votes and meetings and related matters not inconsistent with the provisions
hereof.
ARTICLE VI
Distributions, Redemptions and Repurchases,
and Determination of Net Asset Value
Distributions
Section 1. The Trustees may in their sole discretion from time to time
distribute to the Shareholders of any series such income and gains, accrued or
realized, as the Trustees may determine, after providing for actual and accrued
expenses and liabilities of such series (including such reserves as the Trustees
may establish) determined in accordance with this Declaration of Trust and 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 to any
series, if any be made, shall be in Shares of such series, in cash or otherwise
and on a date or dates determined by the Trustees. At any time and from time to
time in their discretion, the Trustees may distribute to the Shareholders of any
series as of a record date or dates determined by the Trustees, in Shares of
such series, in cash or otherwise, all or part of any gains realized on the sale
or disposition of property of the series or otherwise, or all or part of any
other principal of the Trust attributable to the series. Except to the extent
otherwise required or permitted by the preferences and special or relative
rights or privileges of any classes of Shares of that series, each distribution
pursuant to this Section 1 shall be made ratably according to the number of
Shares of the series held by the several Shareholders on the applicable record
date thereof, provided that distributions from assets of a series may only be
made to the holders of the Shares of such series and provided that no
distributions need be made on Shares purchased pursuant to orders received, or
for which payment is made, after such time or times as the Trustees may
determine. Any distribution to the Shareholders of a particular class of Shares
shall be made to such Shareholders pro rata in proportion to the number of
Shares of such class held by each of them. Any distribution paid in Shares will
be paid at the net asset value thereof as determined in accordance with this
Declaration of Trust. The Trustees have the power, in their discretion, to
distribute for any year amounts sufficient to enable the Trust to qualify as a
"regulated investment company" under the Internal Revenue Code as amended (or
any successor thereto) to avoid any liability for federal income tax in respect
of that year.
Redemptions and Repurchases
Section 2. Any holder of Shares of the Trust may, by presentation of a
request in proper form, together with his certificates, if any, for such Shares,
in proper form for transfer to the Trust or duly authorized agent of the Trust,
request redemption of his shares for the net asset value thereof determined and
computed in accordance with the provisions of this Section 2 and the provisions
of Section 6 of this Article VI.
Upon receipt by the Trust or its duly authorized agent, as the case may be,
of such a request for redemption of Shares in proper form, such Shares shall be
redeemed at the net asset
14
value per share of the particular series or class next determined after such
request is received or determined as of such other time fixed by the Trustees as
may be permitted or required by the 0000 Xxx. The criteria for determining what
constitutes a request for redemption in proper form and the time of receipt of
such request shall be fixed by the Trustees.
The obligation of the Trust to redeem its Shares as set forth above in this
Section 2 shall be subject to the condition that such obligation may be
suspended by the Trust by or under authority of the Trustees during any period
or periods when and to the extent permissible under the 1940 Act. If there is
such a suspension, any Shareholder may withdraw any request for redemption which
has been received by the Trust during any such period and the applicable net
asset value with respect to which would but for such suspension be calculated as
of a time during such period. Upon such withdrawal, the Trust shall return to
the Shareholder the certificates therefor, if any.
The Trust may also purchase, repurchase or redeem Shares in accordance with
such other methods, upon such other terms and subject to such other conditions
as the Trustee may from time to time authorize 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. Shares redeemed or repurchased by
the Trust hereunder shall be canceled upon such redemption or repurchase without
further action by the Trust or the Trustees and the number of issued and
outstanding Shares of the relevant series and class shall thereupon be reduced
by such amount.
Payment for Shares Redeemed
Section 3. Payment of the redemption price for Shares redeemed pursuant to
this Article VI shall be made by the Trust or its duly authorized agent after
receipt by the Trust or its duly authorized agent of a request for redemption in
proper form (together with any certificates for such Shares as provided in
Section 2 above) in accordance with procedures and subject to conditions
prescribed by the Trustees; provided, however, that payment may be postponed
during the period in which the redemption of Shares is suspended under Section 2
above. Subject to any generally applicable limitation imposed by the Trustees,
any payment on redemption, purchase or repurchase by the Trust of Shares may, if
authorized by the Trustees, be made wholly or partly in kind, instead of in
cash. Such payment in kind shall be made by distributing securities or other
property, constituting, in the opinion of the Trustees, a fair representation of
the various types of securities and other property then held by the series of
Shares being redeemed, purchased or repurchased (but not necessarily involving a
portion of each of the series' holdings) and taken at their value used in
determining the net asset value of the Shares in respect of which payment is
made.
Redemptions at the Option of the Trust
Section 4. The Trust shall have the right at its option and at any time and
from time to time to redeem Shares of any Shareholder at the net asset value
thereof as determined in accordance with Section 6 of this Article VI, if at
such time such Shareholder owns fewer shares of a series or class than, or
Shares of a series or class having an aggregate net asset value of less than, an
amount determined from time to time by the Trustees. Any such redemption at the
option of the Trust shall be made in accordance with such other criteria and
procedures for determining
15
the Shares to be redeemed, the redemption date and the means of effecting such
redemption as the Trustees may from time to time authorize.
Additional Provisions Relating to Dividends, Redemptions and Repurchases
Section 5. The completion of redemption, purchase or repurchase of Shares
shall constitute a full discharge of the Trust and the Trustees with respect to
such Shares. No dividend or distribution (including, without limitation, any
distribution paid upon termination of the Trust or of any series or class) with
respect to, nor any redemption or repurchase of, the Shares of any series or
class shall be effected by the Trust other than from the assets of such series.
Determination of Net Asset Value
Section 6. The term "net asset value" of each Share of a series or class as
of any particular time shall be the quotient obtained by dividing the value, as
at such time, of the net assets of such series or class (i.e., the value of the
assets of such series or class less the liabilities of such series or class,
exclusive of liabilities represented by the Shares of such series or class) by
the total number of Shares of such series or class outstanding at such time, all
determined and computed in accordance with the Trust's current prospectus.
The Trustees, or any officer, or officers or agent of the Trust designated
for the purpose by the Trustees shall determine the net asset value of the
Shares of each series or class, and the Trustees shall fix the time or times as
of which the net asset value of the Shares of each series or class shall be
determined and shall fix the periods during which any such net asset value shall
be effective as to sales, redemptions and repurchases of, and other transactions
in, the Shares of such series or class, except as such times and periods for any
such transaction may be fixed by other provisions of this Declaration of Trust
or by the By-Laws.
Determinations in accordance with this Section 6 made in good faith shall
be binding on all parties concerned.
How Long Shares are Outstanding
Section 7. Shares of the Trust surrendered to the Trust for redemption by
it pursuant to the provisions of Section 2 of this Article VI shall be deemed to
be outstanding until the redemption price thereof is determined pursuant to this
Article VI and, thereupon and until paid, the redemption price thereof shall be
deemed to be a liability of the Trust. Shares of the Trust purchased by the
Trust in the open market shall be deemed to be outstanding until confirmation of
purchase thereof by the Trust and, thereupon and until paid, the purchase price
thereof shall be deemed to be a liability of the Trust. Shares of the Trust
redeemed by the Trust pursuant to Section 4 of this Article VI shall be deemed
to be outstanding until said Shares are deemed to be redeemed in accordance with
procedures adopted by the Trustees pursuant to said Section 4.
16
ARTICLE VII
Compensation and Limitation of Liability
of Trustees and Shareholders
Section 1. The Trustees as such shall be entitled to reasonable
compensation from the Trust if the rate thereof is prescribed by such Trustees.
Nothing herein shall in any way prevent the employment of any Trustee for
advisory, management, legal, accounting, investment banking or other services
and payment for the same by the Trust, it being recognized that such employment
may result in such Trustee being considered an Affiliated Person or an
Interested Person.
Limitation of Liability
Section 2. The Trustees shall not be responsible or liable in any event for
any neglect or wrongdoing of any officer, agent, employee, investment adviser or
manager, principal underwriter or custodian, nor shall any Trustee be
responsible for the act or omission of any other Trustee. Nothing in this
Declaration of Trust shall protect any Trustee against any liability to which
such Trustee would otherwise be subject by reason of willful 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, 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 capacity as Trustees or Trustee and neither such Trustees or
Trustee nor the Shareholders shall be personally liable thereon.
Every note, bond, contract, instrument, certificate or undertaking made or
issued by the Trustees or by any officers or officer shall give notice that this
Declaration of Trust is on file with the Secretary of State of The Commonwealth
of Massachusetts and shall recite that the same was executed or made by or on
behalf of the Trust by them as Trustees or Trustee 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 or a particular series of Shares, and may
contain such further recital as he or they may deem appropriate, but the
omission thereof shall not operate to bind any Trustees or Trustee or officers
or officer or Shareholders or Shareholder individually.
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, as the case may
be, 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.
Trustees' Good Faith Action, Expert Advice, No Bond or Surety
Section 3. The exercise by the Trustees of their powers and discretions
hereunder shall be binding upon everyone interested. A Trustee shall be liable
only for his own willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct
17
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 their duties as Trustees hereunder, and shall be under
no liability for any act or omission in accordance with such advice or for
failing to follow such advice. In discharging their duties, the Trustees, when
acting in good faith, shall be entitled to rely upon the books of account of the
Trust and upon written reports made to the Trustees by any officer appointed by
them, any independent public accountant and (with respect to the subject matter
of the contract involved) any officer, partner or responsible employee of any
other party to any contract entered into pursuant to Section 2 of Article IV.
The Trustees shall not be required to give any bond as such, nor any surety if a
bond is required.
Liability of Third Persons Dealing with Trustees
Section 4. 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.
ARTICLE VIII
Indemnification
Subject to the exceptions and limitations contained in this Article, every
person who is, or has been, a Trustee or officer of the Trust (including persons
who serve at the request of the Trust as directors, officers or trustees of
another organization in which the Trust has an interest as a shareholder,
creditor or otherwise) hereinafter referred to as a "Covered Person", shall be
indemnified by the Trust to the fullest extent permitted by law against
liability and against all expenses reasonably incurred or paid by him in
connection with any claim, action, suit or proceeding in which he becomes
involved as a party or otherwise by virtue of his being or having been such a
Trustee, director or officer and against amounts paid or incurred by him in
settlement thereof.
No indemnification shall be provided hereunder to a Covered Person:
(a) against any liability to the Trust or its Shareholders by reason of a
final adjudication by the court or other body before which the proceeding was
brought that he engaged in willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his office;
(b) with respect to any matter as to which he shall have been finally
adjudicated not to have acted in good faith in the reasonable belief that his
action was in the best interest of the Trust; or
(c) in the event of a settlement or other disposition not involving a final
adjudication (as provided in paragraph (a) or (b)) and resulting in a payment by
a Covered Person, unless there has been either a determination that such Covered
Person did not engage in willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his office by the
court or other body approving the settlement or other disposition or a
reasonable
18
determination, based on a review of readily available facts (as opposed to a
full trial-type inquiry) that he did not engage in such conduct:
(1) by a vote of 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
(ii) by written opinion of independent legal counsel.
The rights of indemnification herein provided may be insured against by
policies maintained by the Trust, shall be severable, shall not affect any other
rights to which any Covered Person may now or hereafter be entitled, shall
continue as to a person who has ceased to be such a Covered Person and shall
inure to the benefit of the heirs, executors and administrators of such a
person. Nothing contained herein shall affect any rights to indemnification to
which Trust personnel other than Covered Persons may be entitled by contract or
otherwise under law.
Expenses of preparation and presentation of a defense to any claim, action,
suit or proceeding subject to a claim for indemnification under this Article
shall be advanced by the Trust prior to final disposition thereof upon receipt
of an undertaking by or on behalf of the recipient to repay such amount if it is
ultimately determined that he is not entitled to indemnification under this
Article provided that either:
(a) such undertaking is secured by a surety bond or some other appropriate
security or the Trust shall be insured against losses arising out of any such
advances; or
(b) 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 determine, based upon a
review of the readily available facts (as opposed to a full trial-type inquiry),
that there is reason to believe that the recipient ultimately will be found
entitled to indemnification.
As used in this Article, a "Disinterested Trustee" is one (a) who is not an
"interested person" of the Trust, as defined in the 1940 Act (including anyone
who has been exempted from being an "interested person" by any rule, regulation
or order of the Commission), and (b) 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.
As used in this Article, the words "claim", "action", "suit" or
"proceeding" shall apply to all claims, actions, suits or proceedings (civil,
criminal or other, including appeals), actual or threatened; and the words
"liability" and "expenses" shall include without limitation, attorneys' fees,
cost, judgments, amounts paid in settlement, fines, penalties and other
liabilities.
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; provided, however, there
19
shall be no liability or obligation of the Trust arising hereunder to reimburse
any Shareholder for taxes paid by reason of such Shareholder's ownership of
Shares or for losses suffered by reason of any changes in value of any Trust
assets.
ARTICLE IX
Miscellaneous
Duration, Termination and Reorganization of Trust
Section 1. Unless terminated as provided herein, the Trust shall continue
without limitation of time. The Trust may be terminated at any time by the
Trustees by written notice to the Shareholders without a vote of the
Shareholders of the Trust or by the vote of the Shareholders entitled to vote
more than fifty percent (50%) of the votes of each series or class entitled to
be cast on the matter. Any series or class of Shares may be terminated at any
time by the Trustees by written notice to the Shareholders of such series or
class without a vote of the Shareholders of such series or class or by the vote
of the Shareholders of such series or class entitled to vote more than fifty
percent (50%) of the votes entitled to be cast on the matter.
Upon termination of the Trust or of any one or more series or classes of
Shares, after paying or otherwise providing for all charges, taxes, expenses and
liabilities, whether due or accrued or anticipated, of the particular series or
class as may be determined by the Trustees, the Trust shall in accordance with
such procedures as the Trustees consider appropriate reduce to the extent
necessary the remaining assets of the particular series to distributable form in
cash or other securities, or any combination thereof, and distribute the
proceeds to the Shareholders of the series or class involved, ratably according
to the number of Shares of such series or class held by the several Shareholders
of such series or class on the date of termination. Any such distributions with
respect to any series which has one or more classes of Shares outstanding shall
be made ratably to such classes in the same proportion as the number of Shares
of each class bears to the total number of Shares of the series, except to the
extent otherwise required or permitted by the preferences and special or
relative rights or privileges of any classes of Shares of any such series.
At any time by the affirmative vote of the Shareholders of the affected
series entitled to vote more than fifty percent (50%) of the votes entitled to
be cast on the matter, the Trustees may sell, convey and transfer the assets of
the Trust, or the assets belonging to any one or more series, to another trust,
partnership, association or corporation organized under the laws of any state of
the United States, or to the Trust to be held as assets belonging to another
series of the Trust, in exchange for cash, shares or other securities
(including, in the case of a transfer to another series of the Trust, Shares of
such other series) with such transfer being made subject to or with the
assumption by the transferee of, the liabilities belonging to each series the
assets of which are so distributed. Following such transfer, the Trustees shall
distribute such cash, shares or other securities (giving due effect to the
assets and liabilities belonging to and any other differences among the various
series the assets belonging to which have so been transferred) among the
Shareholders of the series the assets belonging to which have been so
transferred; and if all the assets of the Trust have been so distributed, the
Trust shall be terminated.
20
Filing of Copies, References, Headings
Section 2. 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 State 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 any 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 from time to time. 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.
Applicable Law
Section 3. This Declaration of Trust is made in The Commonwealth of
Massachusetts, and it is 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.
Amendments
Section 4. 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
so to do by vote of Shareholders holding more than fifty percent (50%) of the
Shares of each series entitled to vote, except that an amendment which in the
determination of the Trustees shall affect the holders of one or more series or
classes of Shares but not the holders of all outstanding series and classes
shall be authorized by vote of the Shareholders holding more than fifty percent
(50%) of the Shares entitled to vote of each series or class affected and no
vote of Shareholders of a series or class not affected shall be required.
Amendments having the purpose of changing the name of the Trust or of supplying
any omission, curing any ambiguity or curing, correcting or supplementing any
provision which is defective or inconsistent with the 1940 Act or with the
requirements of the Internal Revenue Code and the regulations thereunder for the
Trust's obtaining the most favorable treatment thereunder available to regulated
investment companies shall not require authorization by Shareholder vote.
21
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals
for themselves and their assigns, as of this 20th day of January, 1998.
/s/Xxxxxx Xxxxxx
----------------------
Xxxxxx Xxxxxx, Trustee
000 Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxxxxxxxxxx, 00000
The address of the Trust is:
c/o Xxxxxxx Xxxxxx Investments, Inc.
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
(SIGNATURES FOLLOW)
22
/s/Xxxxx X. Xxxxx, Trustee
--------------------------
Xxxxx X. Xxxxx
0000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
/s/Xxxxx X. Xxxxxxx
--------------------------
Xxxxx X. Xxxxxxx
164 00 Xxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
/s/Xxxxxx Xxxxxxx
--------------------------
Xxxxxx Xxxxxxx
000X Xxxxx Xxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
/s/Xxxxxx X. Xxxxxxx
--------------------------
Xxxxxx X. Xxxxxxx
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
/s/Xxxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxx
000 Xxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
/s/Xxxxxxx X. Xxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
/s/Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
23
County of Xxxx )
) ss
State of Illinois )
Then personally appeared the afore-named Xxxxx X. Xxxxx, Xxxxx X. Xxxxxxx,
Xxxxxx Xxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxxxx
X. Xxxxxxx and Xxxxxx Xxxxxx who acknowledged the foregoing instrument to be
their free act and deed, before me this 20th day of January, 1998.
/s/Xxxxx X. Xxxxxxx
-------------------
Notary Public
My Commission Expires: 3-14-01
24
