AGREEMENT AND DECLARATION OF TRUST
OF
ALLIANCE INTERNATIONAL FUND
This AGREEMENT AND DECLARATION OF TRUST, made at Boston,
Massachusetts this 2nd day of October, 1985, by and between the
Settlor and the Trustee whose signature is set forth below (the
"Initial Trustee"),
W I T N E S S E T H T H A T:
WHEREAS, Xxxxx X. Xxxxx, an individual residing in
Brookline, Massachusetts (the "Settlor"), proposes to deliver to
the Initial Trustee the sum of one hundred dollars ($100.00)
lawful money of the United States of America in trust hereunder
and to authorize the Initial Trustee and all other Persons acting
as Trustees hereunder to employ such funds, and any other funds
coming into their hands or the hands of their successor or
successors as such Trustees, to carry on the business of an
investment company, and as such of buying, selling, investing in
or otherwise dealing in and with stocks, bonds, debentures,
warrants, options, future contracts and other securities and
interests therein, or calls or puts with respect to any of the
same, or such other and further investment media and other
property as the Trustees may deem advisable, which are not
prohibited by law or the terms of this Declaration; and
WHEREAS, the Initial Trustee is willing to accept such
sum, together with any and all additions thereto and the income
or increments thereof, upon the terms, conditions and trusts
hereinafter set forth; and
WHEREAS, it is proposed that the assets held by the
Trustees be divided into separate funds, each with its own
separate investment portfolio, investment objectives, policies
and purposes, and that the beneficial interest in each such fund
shall be divided into transferable Shares of Beneficial Interest,
a separate Series of Shares for each fund, all in accordance with
the provisions hereinafter set forth; and
WHEREAS, it is desired that the trust established hereby
(the "Trust") be managed and operated as a trust with
transferable shares under the laws of Massachusetts, of the type
commonly known as and referred to as a Massachusetts business
trust, in accordance with the provisions hereinafter set forth,
NOW, THEREFORE, the Initial Trustee, for himself and his
successors as Trustees, hereby declares, and agrees with the
Settlor, for himself and for all Persons who shall hereafter
become holders of Shares of Beneficial Interest of the Trust, of
any Series, that the Trustees will hold the sum delivered to them
upon the execution hereof, and all other and further cash,
securities and other property of every type and description which
they may in any way acquire in their capacity as such Trustees,
together with the income therefrom and the proceeds thereof, IN
TRUST NEVERTHELESS, to manage and dispose of the same for the
benefit of the holders from time to time of the Shares of
Beneficial Interest of the several Series being issued and to be
issued hereunder and in the manner and subject to the provisions
hereof, to wit:
ARTICLE I
THE TRUST
SECTION 1.1. Name. The name of the Trust shall be
"ALLIANCE INTERNATIONAL FUND",
and so far as may be practicable the Trustees shall conduct the
Trusts activities, execute all documents and xxx or be sued under
that name, which name (and the word "Trust" wherever used in this
Agreement and Declaration of Trust, except where the context
otherwise requires) shall refer to the Trustees in their capacity
as Trustees, and not individually or personally, and shall not
refer to the officers, agents or employees of the Trust or of
such Trustees, or to the holders of the Shares of Beneficial
Interest of the Trust, of any Series. If the Trustees determine
that the use of such name is not practicable, legal or convenient
at any time or in any jurisdiction, or if the Trust is required
to discontinue the use of such name pursuant to Section 10.5
hereof, then subject to that Section, the Trustees may use such
other designation, or they may adopt such other name for the
Trust as they deem proper, and the Trust may hold property and
conduct its activities under such designation or name.
SECTION 1.2. Location. The Trust shall have an office
in Boston, Massachusetts, unless changed by the Trustees to
another location in Massachusetts or elsewhere, but such office
need not be the sole or principal office of the Trust. The Trust
may have such other offices or places of business as the Trustees
may from time to time determine to be necessary or expedient.
SECTION 1.3. Nature of Trust. The Trust shall be a
trust with transferable shares under the laws of The Commonwealth
of Massachusetts, of the type referred to in Section 1 of Chapter
182 of the Massachusetts General Laws and commonly termed a
Massachusetts business trust. The Trust is not intended to be,
shall not be deemed to be, and shall not be treated as, a general
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partnership, limited partnership, joint venture, corporation or
joint stock company. The Shareholders shall be beneficiaries and
their relationship to the Trustees shall be solely in that
capacity in accordance with the rights conferred upon them
hereunder.
SECTION 1.4. Definitions. As used in this Agreement
and Declaration of Trust, the following terms shall have the
meanings set forth below unless the context thereof otherwise
requires:
"Accounting Agent" shall have the meaning designated in
Section 5.2(g) hereof.
"Administrator" shall have the meaning designated in
Section 5.2(b) hereof.
"Affiliated Person" shall have the meaning assigned to
it in the 1940 Act.
"By-Laws" shall mean the By-Laws of the Trust, as
amended from time to time.
"Certificate of Designation" shall have the meaning
designated in Section 6.1 hereof.
"Certificate of Termination" shall have the meaning
designated in Section 6.1 hereof.
"Commission" shall have the same meaning as in the 1940
Act.
"Contracting Part" shall have the meaning designated in
the preamble to Section 5.2 hereof.
"Covered Person" shall have the meaning designated in
Section 8.4 hereof.
"Custodian" shall have the meaning designated in Section
5.2(d) hereof.
"Declaration" and "Declaration of Trust" shall mean this
Agreement and Declaration of Trust and all amendments or
modifications thereof as from time to time in effect. References
in this Agreement and Declaration of Trust to "hereof", "herein"
and "hereunder" shall be deemed to refer to the Declaration of
Trust generally, and shall not be limited to the particular text,
Article or Section in which such words appear.
"Disabling Conduct" shall have the meaning designated in
Section 8.4 hereof.
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"Distributor" shall have the meaning designated in
Section 5.2(c) hereof.
"Dividend Disbursing Agent" shall have the meaning
designated in Section 5.2(e) hereof.
"General Items" shall have the meaning defined in
Section 6.2(a) hereof.
"Initial Trustee" shall have the meaning defined in the
preamble hereto.
"Investment Advisor" shall have the meaning stated in
Section 5.2(a) hereof.
"Majority of the Trustees" shall mean a majority of the
Trustees in office at the time in question. At any time at which
there shall be only one (1) Trustee in office, such term shall
mean such Trustee.
"Majority Shareholder Vote," as used with respect to the
election of any Trustee at a meeting of Shareholders, shall mean
the vote for the election of such Trustee of a plurality of all
outstanding Shares of the Trust, without regard to Series,
represented in person or by proxy and entitled to vote thereon,
provided that a quorum (as determined in accordance with the
By-Laws) is present, and as used with respect to any other action
required or permitted to be taken by Shareholders, shall mean the
vote for such action of the holders of that majority of all
outstanding Shares (or, where a separate vote of Shares of any
particular Series is to be taken, the affirmative vote of that
majority of the outstanding Shares of that Series) of the Trust
which consists of: (i) a majority of all Shares (or of Shares of
the particular Series) represented in person or by proxy and
entitled to vote on such action at the meeting of Shareholders at
which such action is to be taken, provided that a quorum (as
determined in accordance with the By-Laws) is present; or (ii) if
such action is to be taken by written consent of Shareholders, a
majority of all Shares (or of Shares of the particular Series)
issued and outstanding and entitled to vote on such action;
provided, that (iii) as used with respect to any action requiring
the affirmative vote of "a majority of the outstanding voting
securities", as the quoted phrase is defined in the 1940 Act, of
the Trust or of any Portfolio, "Majority Shareholder Vote" means
the vote for such action at a meeting of Shareholders of the
smallest majority of all outstanding Shares of the Trust (or of
Shares of the particular Portfolio) entitled to vote on such
action which satisfies such 1940 Act voting requirement.
"1940 Act" shall mean the provisions of the Investment
Company Act of 1940 and the rules and regulations thereunder,
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both as amended from time to time, and any order or orders
thereunder which may from time to time be applicable to the
Trust.
"Person" shall mean and include individuals, as well as
corporations, limited partnerships, general partnerships, joint
stock companies, joint ventures, associations, banks, trust
companies, land trusts, business trusts or other organizations
established under the laws of any jurisdiction, whether or not
considered to be legal entities, and governments and agencies and
political subdivisions thereof.
"Portfolio" or "Portfolios" shall mean one or more of
the separate components of the assets of the Trust which are now
or hereafter established and designated under or in accordance
with the provisions of Article VI hereof.
"Portfolio Assets" shall have the meaning defined in
Section 6.2(a) hereof.
"Principal Underwriter" shall have the meaning
designated in Section 5.2(c) hereof.
"Prospectus," as used with respect to any Portfolio or
Series of Shares, shall mean the prospectus relating to such
Portfolio or Series which constitutes part of the currently
effective Registration Statement of the Trust under the
Securities Act of 1933, as such prospectus may be amended or
supplemented from time to time.
"Securities" shall mean any and all bills, notes, bonds,
debentures or other obligations or evidences of indebtedness,
certificates of deposit, bankers acceptances, commercial paper,
repurchase agreements or other money market instruments; stocks,
shares or other equity ownership interests; and warrants, options
or other instruments representing rights to subscribe for,
purchase, receive or otherwise acquire or to sell, transfer,
assign or otherwise dispose of, and scrip, certificates, receipts
or other instruments evidencing any ownership rights or interests
in, any of the foregoing and "when issued" and "delayed delivery"
contracts for securities, issued, guaranteed or sponsored by any
governments, political subdivisions or governmental authorities,
agencies or instrumentalities, by any individuals, firms,
companies, corporations, syndicates, associations or trusts, or
by any other organizations or entities whatsoever, irrespective
of their forms or the names by which they may be described,
whether or not they be organized and operated for profit, and
whether they be domestic or foreign with respect to The
Commonwealth of Massachusetts or the United States of America.
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"Securities of the Trust" shall mean any Securities
issued by the Trust.
"Series" shall mean one or more of the series of Shares
authorized by the Trustees to represent the beneficial interest
in one or more of the Portfolios.
"Settlor" shall have the meaning stated in the first
"Whereas" clause set forth above.
"Shareholder" shall mean as of any particular time any
Person shown of record at such time on the books of the Trust as
a holder of outstanding Shares of any Series, and shall include a
pledgee into whose name any such Shares are transferred in
pledge.
"Shareholder Servicing Agent" shall have the meaning
designated in Section 5.2(f) hereof.
"Shares" shall mean the transferable units into which
the beneficial interest in the Trust and each Portfolio of the
Trust (as the context may require) shall be divided from time to
time, and includes fractions of Shares as well as whole Shares.
All references herein to "Shares" which are not accompanied by a
reference to any particular Series or Portfolio shall be deemed
to apply to outstanding Shares without regard to Series.
"Single Class Voting" as used with respect to any matter
to be acted upon at a meeting or by written consent of
Shareholders, shall mean a style of voting, in which each holder
of one or more Shares shall be entitled to one vote on the matter
in question for each Share standing in his name on the records of
the Trust, irrespective of Series, and all outstanding Shares of
all Series vote as a single class.
"Statement of Additional Information," as used with
respect to any Portfolio or Series of Shares, shall mean the
statement of additional information relating to such Portfolio or
Series, which constitutes part of the currently effective
Registration Statement of the Trust under the Securities Act of
1933, as such statement of additional information may be amended
or supplemented from time to time.
"Transfer Agent" shall have the meaning defined in
Section 5.2(e) hereof.
"Trust" shall have the meaning stated in the fourth
"Whereas" clause set forth above.
"Trust Property" shall mean, as of any particular time,
any and all property which shall have been transferred, conveyed
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or paid to the Trust or the Trustees, and all interest,
dividends, income, earnings, profits and gains therefrom, 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, and which at such time is owned or held by, or
for the account of, the Trust or the Trustees, without regard to
the Portfolio to which such property is allocated.
"Trustees" shall mean, collectively, the Initial
Trustee, so long as he shall continue in office, and all other
individuals who at the time in question have been duly elected or
appointed as Trustees of the Trust in accordance with the
provisions hereof and who have qualified and are then in office.
At any time at which there shall be only one (1) Trustee in
office, such term shall mean such single Trustee.
SECTION 1.5. Real Property to be Converted into
Personal Property. Notwithstanding any other provision hereof,
any real property at any time forming part of the Trust Property
shall be held in trust for sale and conversion into personal
property at such time or times and in such manner and upon such
terms as the Trustees shall approve, but the Trustees shall have
power until the termination of this Trust to postpone such
conversion as long as they in their uncontrolled discretion shall
think fit, and for the purpose of determining the nature of the
interest of the Shareholders therein, all such real property
shall at all times be considered as personal property.
ARTICLE II
PURPOSE OF THE TRUST
The purpose of the Trust shall be to engage in the
business of being an investment company, and as such of
subscribing for, purchasing or otherwise acquiring, holding for
investment or trading in, borrowing, lending and selling short,
selling, assigning, negotiating or exchanging and otherwise
disposing of, and turning to account, realizing upon and
generally dealing in and with, in any manner, (a) Securities of
all kinds, (b) precious metals and other minerals, contracts to
purchase and sell, and other interests of every nature and kind
in, such metals or minerals, and (c) rare coins and other
numismatic items, and all as the Trustees in their discretion
shall determine to be necessary, desirable or appropriate, and to
exercise and perform any and every act, thing or power necessary,
suitable or desirable for the accomplishment of such purpose, the
attainment of any of the objects or the furtherance of any of the
powers given hereby which are lawful purposes, objects or powers
of a trust with transferable shares of the type commonly termed a
Massachusetts business trust; and to do every other act or acts
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or thing or things incidental or appurtenant to or growing out of
or in connection with the aforesaid objects, purposes or powers,
or any of them, which a trust of the type commonly termed a
Massachusetts business trust is not now or hereafter prohibited
from doing, exercising or performing.
ARTICLE III
POWERS OF THE TRUSTEES
SECTION 3.1. Powers in General. The Trustees shall
have, without other or further authorization, full, entire,
exclusive and absolute power, control and authority over, and
management of, the business of the Trust and over the Trust
Property, to the same extent as if the Trustees were the sole
owners of the business and property of the Trust in their own
right, and with such powers of delegation as may be permitted by
this Declaration, subject only to such limitations as may be
expressly imposed by this Declaration of Trust or by applicable
law. The enumeration of any specific power or authority herein
shall not be construed as limiting the aforesaid power or
authority or any specific power or authority. Without limiting
the foregoing, the Trustees may adopt By-Laws not inconsistent
with this Declaration of Trust providing for the conduct of the
business and affairs of the Trust and may amend and repeal them
to the extent that such By-Laws do not reserve that right to the
Shareholders; they may select, and from time to time change, the
fiscal year of the Trust; they may adopt and use a seal for the
Trust, provided, that unless otherwise required by the Trustees,
it shall not be necessary to place the seal upon, and its absence
shall not impair the validity of, any document, instrument or
other paper executed and delivered by or on behalf of the Trust;
they may from time to time in accordance with the provisions of
Section 6.1 hereof establish one or more Portfolios to which they
may allocate such of the Trust Property, subject to such
liabilities, as they shall deem appropriate, each such Portfolio
to be operated by the Trustees as a separate and distinct
investment medium and with separately defined investment
objectives and policies and distinct investment purposes, all as
established by the Trustees, or from time to time changed by
them; they may as they consider appropriate elect and remove
officers and appoint and terminate agents and consultants and
hire and terminate employees, any one or more of the foregoing of
whom may be a Trustee; they may appoint from their own number,
and terminate, any one or more committees consisting of one or
more Trustees, including without implied limitation an Executive
Committee, which may, when the Trustees are not in session and
subject to the 1940 Act, exercise some or all of the power and
authority of the Trustees as the Trustees may determine; in
accordance with Section 5.2 they may employ one or more
Investment Advisors, Administrators and Custodians and may
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authorize any Custodian to employ subcustodians or agents and to
deposit all or any part of such assets in a system or systems for
the central handling of Securities, retain Transfer, Dividend
Disbursing, Accounting, or Shareholder Servicing Agents or any of
the foregoing, provide for the distribution of Shares by the
Trust through one or more Distributors, Principal Underwriters or
otherwise, set record dates or times for the determination of
Shareholders entitled to participate in, benefit from or act with
respect to various matters; and in general they may delegate to
any officer of the Trust, to any Committee of the Trustees and to
any employee, Investment Advisor, Administrator, Distributor,
Custodian, Transfer Agent, Dividend Disbursing Agent, or any
other agent or consultant of the Trust, such authority, powers,
functions and duties as they consider desirable or appropriate
for the conduct of the business and affairs of the Trust,
including without implied limitation the power and authority to
act in the name of the Trust and of the Trustees, to sign
documents and to act as attorney-in-fact for the Trustees.
Without limiting the foregoing and to the extent not inconsistent
with the 1940 Act or other applicable law, the Trustees shall
have power and authority:
(a) Investments. To invest and reinvest cash
and other property; to buy, for cash or on margin,
and otherwise acquire and hold, Securities created
or issued by any Persons, including Securities
maturing after the possible termination of the
Trust; to make payment therefor in any lawful
manner in exchange for any of the Trust Property;
and to hold cash or other property uninvested
without in any event being bound or limited by any
present or future law or custom in regard to
investments by trustees;
(b) Disposition of Assets. Upon such terms
and conditions as they deem best, to lend, sell,
exchange, mortgage, pledge, hypothecate, grant
security interests in, encumber, negotiate, convey,
transfer or otherwise dispose of, and to trade in,
any and all of the Trust Property, free and clear
of all trusts, for cash or on terms, with or
without advertisement, and on such terms as to
payment, security or otherwise, all as they shall
deem necessary or expedient;
(c) Ownership Powers. To vote or give
assent, or exercise any and all other rights,
powers and privileges of ownership with respect to,
and to perform any and all duties and obligations
as owners of, any Securities or other property
forming part of the Trust Property, the same as any
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individual might do; to exercise powers and rights
of subscription or otherwise which in any manner
arise out of ownership of Securities, and to
receive powers of attorney from, and to execute and
deliver proxies or powers of attorney to, such
Person or Persons as the Trustees shall deem
proper, receiving from or granting to such Person
or Persons such power and discretion with relation
to Securities or other property of the Trust, all
as the Trustees shall deem proper;
(d) Form of Holding. To hold any Security or
other 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 of the Portfolio to which such Securities
or property belong, or in the name of a Custodian,
subcustodian or other nominee or nominees, or
otherwise, upon such terms, in such manner or with
such powers, as the Trustees may determine, and
with or without indicating any trust or the
interest of the Trustees therein;
(e) Reorganization, etc. 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 or any Portfolio; 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 forming
part of the Trust Property;
(f) Voting Trusts, etc. To join with other
holders of any Securities in acting through a
committee, depository, voting trustee or otherwise,
and in that connection to deposit any Security
with, or transfer any Security to, any such
committee, depository 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,
depository or trustee as the Trustees shall deem
proper;
(g) Contracts, etc. To enter into, make and
perform all such obligations, contracts, agreements
and undertakings of every kind and description,
with any Person or Persons, as the Trustees shall
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in their discretion deem expedient in the conduct
of the business of the Trust, for such terms as
they shall see fit, whether or not extending beyond
the term of office of the Trustees, or beyond the
possible expiration of the Trust; to amend, extend,
release or cancel any such obligations, contracts,
agreements or understandings; and to execute,
acknowledge, deliver and record all written
instruments which they may deem necessary or
expedient in the exercise of their powers;
(h) Guarantees, etc. 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;
(i) Partnerships, etc. To enter into joint
ventures, general or limited partnerships and any
other combinations or associations;
(j) Insurance. 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, consultants,
Investment Advisors, managers, Administrators,
Distributors, Principal Underwriters, or other
independent contractors, or any thereof (or any
Person connected therewith), 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 in any such capacity,
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;
(k) Pensions, etc. 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,
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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;
(l) Power of Collection and Litigation. To
collect, xxx for and receive all sums of money
coming due to the Trust, to employ counsel, and to
commence, engage in, prosecute, intervene in, join,
defend, compound, compromise, adjust or abandon, in
the name of the Trust, any and all actions, suits,
proceedings, disputes, claims, controversies,
demands or other litigation or legal proceedings
relating to the Trust, the business of the Trust,
the Trust Property, or the Trustees, officers,
employees, agents and other independent contractors
of the Trust, in their capacity as such, at law or
in equity, or before any other bodies or tribunals,
and to compromise, arbitrate or otherwise adjust
any dispute to which the Trust may be a party,
whether or not any suit is commenced or any claim
shall have been made or asserted;
(m) Issuance and Repurchase of Shares. To
issue, sell, repurchase, redeem, retire, cancel,
acquire, hold, resell, reissue, dispose of,
transfer, and otherwise deal in Shares of any
Series, and, subject to Article VI hereof, to apply
to any such repurchase, redemption, retirement,
cancellation or acquisition of Shares of any
Series, any of the Portfolio Assets belonging to
the Portfolio to which such Series relates, whether
constituting capital or surplus or otherwise, to
the full extent now or hereafter permitted by
applicable law; provided, that any Shares belonging
to the Trust shall not be voted, directly or
indirectly;
(n) Offices. To have one or more offices,
and to carry on all or any of the operations and
business of the Trust, in any of the States,
Districts or Territories of the United States, and
in any and all foreign countries, subject to the
laws of such State, District, Territory or country;
(o) Expenses. To incur and pay any and all
such expenses and charges as they may deem
advisable (including without limitation appropriate
fees to themselves as Trustees), and to pay all
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such sums of money for which they may be held
liable by way of damages, penalty, fine or
otherwise;
(p) Agents, etc. To retain and employ any
and all such servants, agents, employees,
attorneys, brokers, investment advisers,
accountants, architects, engineers, builders,
escrow agents, depositories, consultants, ancillary
trustees, custodians, agents for collection,
insurers, banks and officers, as they think best
for the business of the Trust or any Portfolio, to
supervise and direct the acts of any of the same,
and to fix and pay their compensation and define
their duties;
(q) Accounts. To determine, and from time to
time change, the method or form in which the
accounts of the Trust shall be kept;
(r) Valuation. Subject to the requirements
of the 1940 Act, to determine from time to time the
value of all or any part of the Trust Property and
of any services, Securities, property or other
consideration to be furnished to or acquired by the
Trust, and from time to time to revalue all or any
part of the Trust Property in accordance with such
appraisals or other information as is, in the
Trustees sole judgment, necessary and satisfactory;
(s) Indemnification. In addition to the
mandatory indemnification provided for in Article
VIII hereof and to the extent permitted by law, to
indemnify or enter into agreements with respect to
indemnification with any Person with whom this
Trust has dealings, including, without limitation,
any independent contractor, to such extent as the
Trustees shall determine; and
(t) General. To do all such other acts and
things and to conduct, operate, carry on and engage
in such other lawful businesses or business
activities as they shall in their sole and absolute
discretion consider to be incidental to the
business of the Trust or any Portfolio as an
investment company, and to exercise all powers
which they shall in their discretion consider
necessary, useful or appropriate to carry on the
business of the Trust or any Portfolio, to promote
any of the purposes for which the Trust is formed,
whether or not such things are specifically
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mentioned herein, in order to protect or promote
the interests of the Trust or any Portfolio, or
otherwise to carry out the provisions of this
Declaration.
SECTION 3.2. Borrowings; Financings; Issuance of
Securities. The Trustees have power to borrow or in any other
manner raise such sum or sums of money, and to incur such other
indebtedness for goods or services, or for or in connection with
the purchase or other acquisition of property, as they shall deem
advisable for the purposes of the Trust, in any manner and on any
terms, and to evidence the same by negotiable or non-negotiable
Securities which may mature at any time or times, even beyond the
possible date of termination of the Trust; to issue Securities of
any type for such cash, property, services or other
considerations, and at such time or times and upon such terms, as
they may deem advisable; and to reacquire any such Securities.
Any such Securities of the Trust may, at the discretion of the
Trustees, be made convertible into Shares of any Series, or may
evidence the right to purchase, subscribe for or otherwise
acquire Shares of any Series, at such times and on such terms as
the Trustees may prescribe.
SECTION 3.3. Deposits. Subject to the requirements of
the 1940 Act, the Trustees shall have power to deposit any moneys
or Securities included in the Trust Property with any one or more
banks, trust companies or other banking institutions, whether or
not such deposits will draw interest. Such deposits are to be
subject to withdrawal in such manner as the Trustees may
determine, and the Trustees shall have no responsibility for any
loss which may occur by reason of the failure of the bank, trust
company or other banking institution with which any such moneys
or Securities have been deposited, other than liability based on
their gross negligence or willful fault.
SECTION 3.4. Allocations. The Trustees shall have
power to determine whether moneys or other assets received by the
Trust shall be charged or credited to income or capital, or
allocated between income and capital, including the power to
amortize or fail to amortize any part or all of any premium or
discount, to treat any part or all of the profit resulting from
the maturity or sale of any asset, whether purchased at a premium
or at a discount, as income or capital, or to apportion the same
between income and capital, to apportion the sale price of any
asset between income and capital, and to determine in what manner
any expenses or disbursements are to be borne as between income
and capital, whether or not in the absence of the power and
authority conferred by this Section 3.4 such assets would be
regarded as income or as capital or such expense or disbursement
would be charged to income or to capital; to treat any dividend
or other distribution on any investment as income or capital, or
14
to apportion the same between income and capital; to provide or
fail to provide reserves, including reserves for depreciation,
amortization or obsolescence in respect of any Trust Property in
such amounts and by such methods as they shall determine; to
allocate less than all of the consideration paid for Shares of
any Series to the shares of beneficial interest account of the
Portfolio to which such Shares relate and to allocate the balance
thereof to paid-in capital of that Portfolio, and to reallocate
such amounts from time to time; all as the Trustees may
reasonably deem proper.
SECTION 3.5. Further Powers; Limitations. The Trustees
shall have power to do all such other matters and things, and to
execute all such instruments, as they deem necessary, proper or
desirable in order to carry out, promote or advance the interests
of the Trust, although such matters or things are not herein
specifically mentioned. Any determination as to what is in the
interests of the Trust made by the Trustees in good faith shall
be conclusive. In construing the provisions of this Declaration
of Trust, the presumption shall be in favor of a grant of power
to the Trustees. The Trustees shall not be required to obtain
any court order to deal with the Trust Property. The Trustees
may limit their right to exercise any of their powers through
express restrictive provisions in the instruments evidencing or
providing the terms for any Securities of the Trust or in other
contractual instruments adopted on behalf of the Trust.
ARTICLE IV
TRUSTEES AND OFFICERS
SECTION 4.1. Number, Designation, Election, Term, etc.
(a) Initial Trustee. Upon his execution of
this Declaration of Trust or a counterpart hereof
or some other writing in which he accepts such
Trusteeship and agrees to the provisions hereof,
the individual whose signature is affixed hereto as
Initial Trustee shall become the Initial Trustee
hereof.
(b) Number. The Trustees serving as such,
whether named above or hereafter becoming Trustees,
may increase (to not more than twenty (20)) or
decrease the number of Trustees to a number other
than the number theretofore determined by a written
instrument signed by a Majority of the Trustees (or
by an officer of the Trust pursuant to the vote of
a Majority of the Trustees). No decrease in the
number of Trustees shall have the effect of
removing any Trustee from office prior to the
15
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 4.1.
(c) Election and Term. The Trustees shall be
elected by the Shareholders of the Trust at the
first meeting of Shareholders immediately prior to
the initial public offering of Shares of the Trust,
and the term of office of any Trustees in office
before such election shall terminate at the time of
such election. Subject to Section 16(a) of the
1940 Act and to the preceding sentence of this
subsection (c), the Trustees shall have the power
to set and alter the terms of office of the
Trustees, and at any time to lengthen or shorten
their own terms or make their terms of unlimited
duration, to elect their own successors and,
pursuant to subsection (f) of this Section 4.1, to
appoint Trustees to fill vacancies; provided, that
Trustees shall be elected by a Majority Shareholder
Vote at any such time or times as the Trustees
shall determine that such action is required under
Section 16(a) of the 1940 Act or, if not so
required, that such action is advisable; and
further provided, that, after the initial election
of Trustees by the Shareholders, the term of office
of any incumbent Trustee shall continue until the
termination of this Trust or his earlier death,
resignation, retirement, bankruptcy, adjudicated
incompetency or other incapacity or removal, or if
not so terminated, until the election of such
Trustees successor in office has become effective
in accordance with this subsection (c).
(d) Resignation and Retirement. Any Trustee
may resign his trust or retire as a Trustee, by a
written instrument signed by him and delivered to
the other Trustees or to any officer 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 with
or without cause at any time: (i) by written
instrument, signed by at least two-thirds (2/3) of
the number of Trustees prior to such removal,
specifying the date upon which such removal shall
become effective; or (ii) by vote of Shareholders
holding not less than two-thirds (2/3) of the
Shares of each Series then outstanding, cast in
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person or by proxy at any meeting called for the
purpose; or (iii) by a written declaration signed
by Shareholders holding not less than two-thirds
(2/3) of the Shares of each Series then outstanding
and filed with the Trusts Custodian.
(f) Vacancies. Any vacancy or anticipated
vacancy resulting from any reason, including an
increase in the number of Trustees, may (but need
not unless required by the 0000 Xxx) be filled by a
Majority of the Trustees, subject to the provisions
of Section 16(a) of the 1940 Act, through the
appointment in writing of such other individual as
such remaining Trustees in their discretion shall
determine; provided, that if there shall be no
Trustees in office, such vacancy or vacancies shall
be filled by vote of the Shareholders. Any such
appointment or election shall be effective upon
such individuals written acceptance of his
appointment as a Trustee and his agreement to be
bound by the provisions of this Declaration of
Trust, except that any such appointment in
anticipation of a vacancy to occur by reason of
retirement, resignation or increase in the 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
the number of Trustees.
(g) Acceptance of Trusts. Any individual
appointed as a Trustee under subsection (f), and
any individual elected as a Trustee under
subsection (c), of this Section 4.1 who was not,
immediately prior to such election, acting as a
Trustee, shall accept such appointment or election
in writing and agree in such writing to be bound by
the provisions hereof, and whenever such individual
shall have executed such writing and any conditions
to such appointment or election shall have been
satisfied, such individual shall become a Trustee
and the Trust Property shall vest in the new
Trustee, together with the continuing Trustees,
without any further act or conveyance.
(h) Effect of Death, Resignation, etc. No
vacancy, whether resulting from the death,
resignation, retirement, removal or incapacity of
any Trustee, an increase in the number of Trustees
or otherwise, shall operate to annul or terminate
the Trust hereunder or to revoke or terminate any
existing agency or contract created or entered into
17
pursuant to the terms of this Declaration of Trust.
Until such vacancy is filled as provided in this
Section 4.1, the Trustees in office (if any),
regardless of their number, shall have all the
powers granted to the Trustees and shall discharge
all the duties imposed upon the Trustees by this
Declaration. A written instrument certifying the
existence of such vacancy signed by a Majority of
the Trustees shall be conclusive evidence of the
existence of such vacancy.
(i) Conveyance. In the event of the
resignation or removal of a Trustee or his
otherwise ceasing to be a Trustee, such former
Trustee or his legal representative shall, upon
request of the continuing Trustees, execute and
deliver such documents as may be required for the
purpose of consummating or evidencing the
conveyance to the Trust or the remaining Trustees
of any Trust Property held in such former Trustees
name, but the execution and delivery of such
documents shall not be requisite to the vesting of
title to the Trust Property in the remaining
Trustees, as provided in subsection (g) of this
Section 4.1 and in Section 4.13 hereof.
(j) No Accounting. Except to the extent
required by the 1940 Act or under circumstances
which would justify his removal for cause, no
Person ceasing to be a Trustee (nor the estate of
any such Person) stall be required to make an
accounting to the Shareholders or remaining
Trustees upon such cessation.
(k) Filings. Whenever there shall be a
change in the composition of the Trustees, the
Trust shall cause to be filed in the office of the
Secretary of The Commonwealth of Massachusetts and
in each other place where the Trust is required to
file amendments to this Declaration a copy of
(i) the instrument by which (in the case of the
appointment of a new Trustee, or the election of an
individual who was not theretofore a Trustee) the
new Trustee accepted his appointment or election
and agreed to be bound by the terms of this
Declaration, or (in the case of a resignation) by
which the former Trustee resigned as such, together
in either case with a certificate of one of the
other Trustees as to the circumstances of such
election, appointment or resignation, or (ii) in
the case of the removal or death of a Trustee, a
18
certificate of one of the Trustees as to the
circumstances of such removal or resignation.
SECTION 4.2. Trustees' Meetings; Participation by
Telephone, etc. An annual meeting of Trustees shall be held not
later than the last day of the fourth month after the end of each
fiscal year of the Trust and special meetings may be held from
time to time in each case, upon the call of such officers as may
be thereunto authorized by the By-Laws or vote of the Trustees,
or by any two (2) Trustees, or pursuant to a vote of the Trustees
adopted at a duly constituted meeting of the Trustees, and upon
such notice as shall be provided in the By-Laws. The Trustees
may act with or without a meeting, and a written consent to any
matter, signed by a Majority of the Trustees, shall be equivalent
to action duly taken at a meeting of the Trustees, duly called
and held. Except as otherwise provided by the 1940 Act or other
applicable law, or by this Declaration of Trust or 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 (a quorum,
consisting of at least a Majority of the Trustees, being
present), within or without Massachusetts. If authorized by the
By-Laws, all or any one or more Trustees may participate in a
meeting of the Trustees or any Committee thereof by means of
conference telephone or similar means of communication by means
of which all Persons participating in the meeting can hear each
other, and participation in a meeting pursuant to such means of
communication shall constitute presence in person at such
meeting. The minutes of any meeting thus held shall be prepared
in the same manner as a meeting at which all participants were
present in person.
SECTION 4.3. Committees; Delegation. The Trustees
shall have power, consistent with their ultimate responsibility
to supervise the affairs of the Trust, to delegate from time to
time to an Executive Committee, and to one or more other
Committees, or to any single Trustee, the doing of such things
and the execution of such deeds or other instruments, either in
the name of the Trust or the names of the Trustees or as their
attorney or attorneys in fact, or otherwise as the Trustees may
from time to time deem expedient, and any agreement, deed,
mortgage, lease or other instrument or writing executed by the
Trustee or Trustees or other Person to whom such delegation was
made shall be valid and binding upon the Trustees and upon the
Trust.
SECTION 4.4. Officers. The Trustees shall annually
elect such officers or agents, who shall have such powers, duties
and responsibilities as the Trustees may deem to be advisable,
and as they shall specify by resolution or in the By-Laws.
Except as may be provided in the By-Laws, any officer elected by
19
the Trustees may be removed at any time with or without cause.
Any two (2) or more offices may be held by the same individual.
SECTION 4.5. Compensation of Trustees and Officers.
The Trustees shall fix the compensation of all officers and
Trustees. Without limiting the generality of any of the
provisions hereof, the Trustees shall be entitled to receive
reasonable compensation for their general services as such, and
to fix the amount of such compensation, and to pay themselves or
any one or more of themselves such compensation for special
services, including legal, accounting, or other professional
services, as they in good faith may deem reasonable. No Trustee
or officer resigning and (except where a right to receive
compensation for a definite future period shall be expressly
provided in a written agreement with the Trust, duly approved by
the Trustees) no Trustee or officer removed shall have any right
to any compensation as such Trustee or officer for any period
following his resignation or removal, or any right to damages on
account of his removal, whether his compensation be by the month,
by the year or otherwise.
SECTION 4.6. Ownership of Shares and Securities of the
Trust. Any Trustee, and any officer, employee or agent of the
Trust, and any organization in which any such Person is
interested, may acquire, own, hold and dispose of Shares of any
Series and other Securities of the Trust for his or its
individual account, and may exercise all rights of a holder of
such Shares or Securities to the same extent and in the same
manner as if such Person were not such a Trustee, officer,
employee or agent of the Trust; subject, in the case of Trustees
and officers, to the same limitations as directors or officers
(as the case may be) of a Massachusetts business corporation; and
the Trust may issue and sell or cause to be issued and sold and
may purchase any such Shares or other Securities from any such
Person or any such organization, subject only to the general
limitations, restrictions or other provisions applicable to the
sale or purchase of Shares of such Series or other Securities of
the Trust generally.
SECTION 4.7. Right of Trustees and Officers to Own
Property or to Engage in Business; Authority of Trustees to
Permit Others to Do Likewise. The Trustees, in their capacity as
Trustees, and (unless otherwise specifically directed by vote of
the Trustees) the officers of the Trust in their capacity as
such, shall not be required to devote their entire time to the
business and affairs of the Trust. Except as otherwise
specifically provided by vote of the Trustees, or by agreement in
any particular case, any Trustee or officer of the Trust may
acquire, own, hold and dispose of, for his own individual
account, any property, and acquire, own, hold, carry on and
dispose of, for his own individual account, any business entity
20
or business activity, whether similar or dissimilar to any
property or business entity or business activity invested in or
carried on by the Trust, and without first offering the same as
an investment opportunity to the Trust, and may exercise all
rights in respect thereof as if he were not a Trustee or officer
of the Trust. The Trustees shall also have power, generally or
in specific cases, to permit employees or agents of the Trust to
have the same rights (or lesser rights) to acquire, hold, own and
dispose of property and businesses, to carry on businesses, and
to accept investment opportunities without offering them to the
Trust, as the Trustees have by virtue of this Section 4.7.
SECTION 4.8. Reliance on Experts. The Trustees and
officers may consult with counsel, engineers, brokers,
appraisers, auctioneers, accountants, investment bankers,
securities analysts or other Persons (any of which may be a firm
in which one or more of the Trustees or officers is or are
members or otherwise interested) whose profession gives authority
to a statement made by them on the subject in question, and who
are reasonably deemed by the Trustees or officers in question to
be competent, and the advice or opinion of such Persons shall be
full and complete personal protection to all of the Trustees and
officers in respect of any action taken or suffered by them in
good faith and in reliance on or in accordance with such advice
or opinion. In discharging their duties, Trustees and officers,
when acting in good faith, may rely upon financial statements of
the Trust represented to them to be correct by any officer of the
Trust having charge of its books of account, or stated in a
written report by an independent certified public accountant
fairly to present the financial position of the Trust. The
Trustees and officers may rely, and shall be personally protected
in acting, upon any instrument or other document believed by them
to be genuine.
SECTION 4.9. Surety Bonds. No Trustee, officer,
employee or agent of the Trust shall, as such, be obligated to
give any bond or surety or other security for the performance of
any of his duties, unless required by applicable law or
regulation, or unless the Trustees shall otherwise determine in
any particular case.
SECTION 4.10. Apparent Authority of Trustees and
Officers. No purchaser, lender, transfer agent or other Person
dealing with the Trustees or any officer of the Trust shall be
bound to make any inquiry concerning the validity of any
transaction purporting to be made by the Trustees or by such
officer, or to make inquiry concerning or be liable for the
application of money or property paid, loaned or delivered to or
on the order of the Trustees or of such officer.
21
SECTION 4.11. Other Relationships Not Prohibited. 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 Contracting Party (as defined
in Section 5.2 hereof), or of or for any parent or
affiliate of any Contracting Party, or that the
Contracting Party or any parent or affiliate
thereof is a Shareholder or has an interest in the
Trust or any Portfolio, or that
(ii) any Contracting Party may have a
contract providing for the rendering of any similar
services to one or more other corporations, trusts,
associations, partnerships, limited partnerships or
other organizations, or have other business or
interests, shall not affect the validity of any
contract for the performance and assumption of
services, duties and responsibilities to, for or of
the Trust and/or the Trustees or disqualify any
Shareholder, Trustee or officer of the Trust from
voting a upon or executing the same or create any
liability or accountability to the Trust or to the
holders of Shares of any Series; provided, that, in
the case of any relationship or interest referred
to in the preceding clause (i) on the part of any
Trustee or officer of the Trust, either (x) the
material facts as to such relationship or interest
have been disclosed to or are known by the Trustees
not having any such relationship or interest and
the contract involved is approved in good faith by
a majority of such Trustees not having any such
relationship or interest (even though such
unrelated or disinterested Trustees are less than a
quorum of all of the Trustees), (y) the material
facts as to such relationship or interest and as to
the contract have been disclosed to or are known by
the Shareholders entitled to vote thereon and the
contract involved is specifically approved in good
faith by vote of the Shareholders, or (z) the
specific contract involved is fair to the Trust as
of the time it is authorized, approved or ratified
by the Trustees or by the Shareholders.
SECTION 4.12. Payment of Trust Expenses. 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, and according to any allocation to particular
Portfolios made by them pursuant to Section 6.2(b) hereof, all
22
expenses, fees, charges, taxes and liabilities incurred or
arising in connection with the business and affairs of 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 Trusts officers, employees,
Investment Advisor, Administrator, Distributor, Principal
Underwriter, auditor, counsel, Custodian, Transfer Agent,
Dividend Disbursing Agent, Accounting Agent, Shareholder
Servicing Agent, and such other agents, consultants, and
independent contractors and such other expenses and charges as
the Trustees may deem necessary or proper to incur.
SECTION 4.13. Ownership of the Trust Property. Legal
title to all the Trust Property shall be vested in the Trustees
as joint tenants, except that the Trustees shall have power to
cause legal title to any Trust Property to be held by or in the
name of one or more of the Trustees, or in the name of the Trust,
or of any particular Portfolio, or in the name of any other
Person as nominee, on such terms as the Trustees may determine;
provided, that the interest of the Trust and of the respective
Portfolio therein is appropriately protected. The right, title
and interest of the Trustees in the Trust Property shall vest
automatically in each Person who may hereafter become a Trustee.
Upon the termination of the term of office of a Trustee as
provided in Section 4.1(c), (d) or (e) hereof, such Trustee shall
automatically cease to have any right, title or interest in any
of the Trust Property, and the right, title and interest of such
Trustee in the Trust Property shall vest automatically in the
remaining Trustees. Such vesting and cessation of title shall be
effective whether or not conveyancing documents have been
executed and delivered pursuant to Section 4.1(i) hereof.
ARTICLE V
DELEGATION OF MANAGERIAL RESPONSIBILITIES
SECTION 5.1. Appointment; Action by Less than All
Trustees. The Trustees shall be responsible for the general
operating policy of the Trust and for the general supervision of
the business of the Trust conducted by officers, agents,
employees or advisers of the Trust or by independent contractors,
but the Trustees shall not be required personally to conduct all
the business of the Trust and, consistent with their ultimate
responsibility as stated herein, the Trustees may appoint, employ
or contract with one or more officers, employees and agents to
conduct, manage and/or supervise the operations of the Trust, and
may grant or delegate such authority to such officers, employees
and/or agents as the Trustees may, in their sole discretion, deem
to be necessary or desirable, without regard to whether such
authority is normally granted or delegated by trustees. With
respect to those matters of the operation and business of the
23
Trust which they shall elect to conduct themselves, except as
otherwise provided by this Declaration or the By-Laws, if any,
the Trustees may authorize any single Trustee or defined group of
Trustees, or any committee consisting of a number of Trustees
less than the whole number of Trustees then in office without
specification of the particular Trustees required to be included
therein, to act for and to bind the Trust, to the same extent as
the whole number of Trustees could do, either with respect to one
or more particular matters or classes of matters, or generally.
SECTION 5.2. Certain Contracts. Subject to compliance
with the provisions of the 1940 Act, but notwithstanding any
limitations of present and future law or custom in regard to
delegation of powers by trustees generally, the Trustees may, at
any time and from time to time in their discretion and without
limiting the generality of their powers and authority otherwise
set forth herein, enter into one or more contracts with any one
or more corporations, trusts, associations, partnerships, limited
partnerships or other types of organizations, or individuals
("Contracting Party"), to provide for the performance and
assumption of some or all of the following services, duties and
responsibilities to, for or on behalf of the Trust and/or any
Portfolio, and/or the Trustees, and to provide for the
performance and assumption of such other services, duties and
responsibilities in addition to those set forth below, as the
Trustees may deem appropriate:
(a) Advisory. An investment advisory or
management agreement whereby the Investment Advisor
shall undertake to furnish the Trust such
management, investment advisory or supervisory,
administrative, accounting, legal, statistical and
research facilities and services, and such other
facilities and services, if any, as the Trustees
shall from time to time consider desirable, all
upon such terms and conditions as the Trustees may
in their discretion determine to be not
inconsistent with this Declaration, the applicable
provisions of the 1940 Act or any applicable
provisions of the By-Laws. Any such advisory or
management agreement and any amendment thereto
shall be subject to approval by a Majority
Shareholder Vote at a meeting of the Shareholders
of the Trust. Notwithstanding any provisions of
this Declaration, the Trustees may authorize the
Investment Advisor (subject to such general or
specific instructions as the Trustees may from time
to time adopt) to effect purchases, sales, loans or
exchanges of portfolio securities of the Trust on
behalf of the Trustees or may authorize any officer
or employee of the Trust or any Trustee to effect
24
such purchases, sales, loans or exchanges pursuant
to recommendations of the Investment Advisor (and
all without further action by the Trustees). Any
such purchases, sales, loans and exchanges shall be
deemed to have been authorized by all of the
Trustees. The Trustees may, in their sole
discretion, call a meeting of Shareholders in order
to submit to a vote of Shareholders at such meeting
the approval of continuance of any such investment
advisory or management agreement. If the
Shareholders of any Portfolio should fail to
approve any such investment advisory or management
agreement, the Investment Advisor may nonetheless
serve as Investment Advisor with respect to any
other Portfolio whose Shareholders shall have
approved such contract.
(b) Administration. An agreement whereby the
agent, subject to the general supervision of the
Trustees and in conformity with any policies of the
Trustees with respect to the operations of the
Trust and each Portfolio, will supervise all or any
part of the operations of the Trust and each
Portfolio, and will provide all or any part of the
administrative and clerical personnel, office space
and office equipment and services appropriate for
the efficient administration and operations of the
Trust and each Portfolio (any such agent being
herein referred to as an "Administrator").
(c) Distribution. An agreement providing for
the sale of Shares of any one or more Series to net
the Trust not less than the net asset value per
Share (as described in Section 6.2(h) hereof) and
pursuant to which the Trust may appoint the other
party to such agreement as its principal
underwriter or sales agent for the distribution of
such Shares. The agreement shall contain such
terms and conditions as the Trustees may in their
discretion determine to be not inconsistent with
this Declaration, the applicable provisions of the
1940 Act and any applicable provisions of the
By-Laws (any such agent being herein referred to as
a "Distributor" or a "Principal Underwriter", as
the case may be).
(d) Custodian. The appointment of a bank or
trust company having an aggregate capital, surplus
and undivided profits (as shown in its last
published report) of at least two million dollars
($2,000,000) as custodian of the Securities and
25
cash of the Trust and of each Portfolio and of the
accounting records in connection therewith (any
such agent being herein referred to as a
"Custodian").
(e) Transfer and Dividend Disbursing Agency.
An agreement with an agent to maintain records of
the ownership of outstanding Shares, the issuance
and redemption and the transfer thereof (any such
agent being herein referred to as a "Transfer
Agent"), and to disburse any dividends declared by
the Trustees and in accordance with the policies of
the Trustees and/or the instructions of any
particular Shareholder to reinvest any such
dividends (any such agent being herein referred to
as a "Dividend Disbursing Agent").
(f) Shareholder Servicing. An agreement with
an agent to provide service with respect to the
relationship of the Trust and its Shareholders,
records with respect to Shareholders and their
Shares, and similar matters (any such agent being
herein referred to as a "Shareholder Servicing
Agent").
(g) Accounting. An agreement with an agent
to handle all or any part of the accounting
responsibilities, whether with respect to the
Trusts properties, Shareholders or otherwise (any
such agent being herein referred to as an
"Accounting Agent").
The same Person may be the Contracting Party for some or all of
the services, duties and responsibilities to, for and of the
Trust and/or the Trustees, and the contracts with respect thereto
may contain such terms interpretive of or in addition to the
delineation of the services, duties and responsibilities provided
for, including provisions that are not inconsistent with the 1940
Act relating to the standard of duty of and the rights to
indemnification of the Contracting Party and others, as the
Trustees may determine. Nothing herein shall preclude, prevent
or limit the Trust or a Contracting Party from entering into
sub-contractual arrangements relative to any of the matters
referred to in subsections (a) through (g) of this Section 5.2.
26
ARTICLE VI
PORTFOLIOS AND SHARES
SECTION 6.1. Description of Portfolios and Shares.
(a) Shares; Portfolios; Series of Shares.
The beneficial interest in the Trust shall be
divided into Shares having a nominal or par value
of one cent ($.01) per Share, and all of one class,
of which an unlimited number may be issued. The
Trustees shall have the authority from time to time
to establish and designate one or more separate,
distinct and independent Portfolios into which the
assets of the Trust shall be divided, and to
authorize a separate Series of Shares for each such
Portfolio (each of which Series, including without
limitation each Series authorized in Section 6.2
hereof, shall represent interests only in the
Portfolio with respect to which such Series was
authorized), as they deem necessary or desirable.
Except as otherwise provided as to a particular
Portfolio herein, or in the Certificate of
Designation therefor, the Trustees shall have all
the rights and powers, and be subject to all the
duties and obligations, with respect to each such
Portfolio and the assets and affairs thereof as
they have under this Declaration with respect to
the Trust and the Trust Property in general.
(b) Establishment, etc. of Portfolios;
Authorization of Shares. The establishment and
designation of any Portfolio in addition to the
Portfolios established and designated in Section
6.2 hereof and the authorization of the Shares
thereof shall be effective upon the execution by a
Majority of the Trustees (or by an officer of the
Trust pursuant to the vote of a Majority of the
Trustees) of an instrument setting forth such
establishment and designation and the relative
rights and preferences of the Shares of such
Portfolio and the manner in which the same may be
amended (a "Certificate of Designation"), and may
provide that the number of Shares of such Series
which may be issued is unlimited, or may limit the
number issuable. At any time that there are no
Shares outstanding of any particular Portfolio
previously established and designated, including
any Portfolio established and designated in Section
6.2 hereof, the Trustees may by an instrument
executed by a Majority of the Trustees (or by an
27
officer of the Trust pursuant to the vote of a
Majority of the Trustees) terminate such Portfolio
and the establishment and designation thereof and
the authorization of its Shares (a "Certificate of
Termination"). Each Certificate of Designation,
Certificate of Termination and any instrument
amending a Certificate of Designation shall have
the status of an amendment to this Declaration of
Trust, and shall be filed and become effective as
provided in Section 9.4 hereof.
(c) Character of Separate Portfolios and
Shares Thereof. Each Portfolio established
hereunder shall be a separate component of the
assets of the Trust, and the holders of Shares of
the Series representing the beneficial interest in
the assets of that Portfolio shall be considered
Shareholders of such Portfolio, but such
Shareholders shall also be considered Shareholders
of the Trust for purposes of receiving reports and
notices and, except as otherwise provided herein or
in the Certificate of Designation of a particular
Portfolio as to such Portfolio, or as required by
the 1940 Act or other applicable law, the right to
vote, all without distinction by Series. The
Trustees shall have exclusive power without the
requirement of Shareholder approval to establish
and designate such separate and distinct
Portfolios, and to fix and determine the relative
rights and preferences as between the shares of the
respective Portfolios as to rights of redemption
and the price, terms and manner of redemption,
special and relative rights as to dividends and
other distributions and on liquidation, sinking or
purchase fund provisions, conversion rights, and
conditions under which the Shareholders of the
several Portfolios shall have separate voting
rights or no voting rights.
(d) Consideration for Shares. The Trustees
may issue Shares of any Series for such
consideration (which may include property subject
to, or acquired in connection with the assumption
of, liabilities) and on such terms as they may
determine (or for no consideration if pursuant to a
Share dividend or split-up), all without action or
approval of the Shareholders. All Shares when so
issued on the terms determined by the Trustees
shall be fully paid and non-assessable (but may be
subject to mandatory contribution back to the Trust
as provided in Section 6.2(h) hereof). The
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Trustees may classify or reclassify any unissued
Shares, or any Shares of any Series previously
issued and reacquired by the Trust, into Shares of
one or more other Portfolios that may be
established and designated from time to time.
SECTION 6.2. Establishment and Designation of the
International Portfolio; General Provisions for All Portfolios.
Without limiting the authority of the Trustees set forth in
Section 6.1(a) hereof to establish and designate further
Portfolios, there is hereby established and designated the
International Portfolio. The Shares of such Portfolio, and the
Shares of any further Portfolios that may from time to time be
established and designated by the Trustees shall (unless the
Trustees otherwise determine with respect to some further
Portfolio at the time of establishing and designating the same)
have the following relative rights and preferences:
(a) Assets Belonging to Portfolios. Any
portion of the Trust Property allocated to a
particular Portfolio, and all consideration
received by the Trust for the issue or sale of
Shares of such Portfolio, together with all assets
in which such consideration is invested or
reinvested, all interest, dividends, income,
earnings, profits and gains therefrom, and proceeds
thereof, including any proceeds derived from the
sale, exchange or liquidation of such assets, and
any funds or payments derived from any reinvestment
of such proceeds in whatever form the same may be,
shall be held by the Trustees in trust for the
benefit of the holders of Shares of that Portfolio
and shall irrevocably belong to that Portfolio for
all purposes, and shall be so recorded upon the
books of account of the Trust, and the Shareholders
of such Portfolio shall not have, and shall be
conclusively deemed to have waived, any claims to
the assets of any Portfolio of which they are not
Shareholders. Such consideration, assets,
interest, dividends, income, earnings, profits,
gains and proceeds, together with any General Items
allocated to that Portfolio as provided in the
following sentence, are herein referred to
collectively as "Portfolio Assets" of such
Portfolio, and as assets "belonging to" that
Portfolio. In the event that there are any assets,
income, earnings, profits, and proceeds thereof,
funds, or payments which are not readily
identifiable as belonging to any particular
Portfolio (collectively "General Items"), the
Trustees shall allocate such General Items to and
29
among any one or more of the Portfolios established
and designated from time to time in such manner and
on such basis as they, in their sole discretion,
deem fair and equitable; and any General Items so
allocated to a particular Portfolio shall belong to
and be part of the Portfolio Assets of that
Portfolio. Each such allocation by the Trustees
shall be conclusive and binding upon the
Shareholders of all Portfolios for all purposes.
(b) Liabilities of Portfolios. The assets
belonging to each particular Portfolio shall be
charged with the liabilities in respect of that
Portfolio and all expenses, costs, charges and
reserves attributable to that Portfolio, and any
general liabilities, expenses, costs, charges or
reserves of the Trust which are not readily
identifiable as pertaining to any particular
Portfolio shall be allocated and charged by the
Trustees to and among any one or more of the
Portfolios established and designated from time to
time in such manner and on such basis as the
Trustees in their sole discretion deem fair and
equitable. The indebtedness, expenses, costs,
charges and reserves allocated and so charged to a
particular Portfolio are herein referred to as
"liabilities of" that Portfolio. Each allocation
of liabilities, expenses, costs, charges and
reserves by the Trustees shall be conclusive and
binding upon the Shareholders of all Portfolios for
all purposes. Any creditor of any Portfolio may
look only to the assets of that Portfolio to
satisfy such creditors debt.
(c) Dividends. Dividends and distributions
on Shares of a particular Portfolio may be paid
with such frequency as the Trustees may determine,
which may be daily or otherwise pursuant to a
standing resolution or resolutions adopted only
once or with such frequency as the Trustees may
determine, to the Shareholders of that Portfolio,
from such of the income, accrued or realized, and
capital gains, realized or unrealized, and out of
the assets belonging to that Portfolio, as the
Trustees may determine, after providing for actual
and accrued liabilities of that Portfolio. All
dividends and distributions on Shares of a
particular Portfolio shall be distributed pro rata
to the Shareholders of that Portfolio in proportion
to the number of such Shares held by such holders
at the date and time of record established for the
30
payment of such dividends or distributions, except
that in connection with any dividend or
distribution program or procedure the Trustees may
determine that no dividend or distribution shall be
payable on Shares as to which the Shareholders
purchase order and/or payment have not been
received by the time or times established by the
Trustees under such program or procedure, or that
dividends or distributions shall be payable on
Shares which have been tendered by the holder
thereof for redemption or repurchase, but the
redemption or repurchase proceeds of which have not
yet been paid to such Shareholder. Such dividends
and distributions may be made in cash or Shares of
that Portfolio or a combination thereof as
determined by the Trustees, or pursuant to any
program that the Trustees may have in effect at the
time for the election by each Shareholder of the
mode of the making of such dividend or distribution
to that Shareholder. Any such dividend or
distribution paid in Shares will be paid at the net
asset value thereof as determined in accordance
with subsection (h) of this Section 6.2.
(d) Liquidation. In the event of the
liquidation or dissolution of the Trust, the
Shareholders of each Portfolio of which Shares are
outstanding shall be entitled to receive, when and
as declared by the Trustees, the excess of the
Portfolio Assets over the liabilities of such
Portfolio. The assets so distributable to the
Shareholders of any particular Portfolio shall be
distributed among such Shareholders in proportion
to the number of Shares of that Portfolio held by
them and recorded on the books of the Trust. The
liquidation of any particular Portfolio may be
authorized by vote of a Majority of the Trustees,
subject to the affirmative vote of "a majority of
the outstanding voting securities" of that
Portfolio, as the quoted phrase is defined in the
1940 Act, determined in accordance with clause
(iii) of the definition of "Majority Shareholder
Vote" in Section 1.4 hereof.
(e) Voting. The Shareholders shall have the
voting rights set forth in or determined under
Article VII hereof.
(f) Redemption by Shareholder. Each holder
of Shares of a particular Portfolio shall have the
right at such times as may be permitted by the
31
Trust, but no less frequently than once each week,
to require the Trust to redeem all or any part of
his Shares of that Portfolio at a redemption price
equal to the net asset value per Share of that
Portfolio next determined in accordance with
subsection (h) of this Section 6.2 after the Shares
are properly tendered for redemption; provided,
that the Trustees may from time to time, in their
discretion, determine and impose a fee for such
redemption. Payment of the redemption price shall
be in cash; provided, however, that if the Trustees
determine, which determination shall be conclusive,
that conditions exist which make payment wholly in
cash unwise or undesirable, the Trust may make
payment wholly or partly in Securities or other
assets belonging to such Portfolio at the value of
such Securities or assets used in such
determination of net asset value. Notwithstanding
the foregoing, the Trust may postpone payment of
the redemption price and may suspend the right of
the holders of Shares of any Portfolio to require
the Trust to redeem Shares of that Portfolio during
any period or at any time when and to the extent
permissible under the 0000 Xxx.
(g) Redemption at the Option of the Trust.
Each Share of any Portfolio shall be subject to
redemption at the option of the Trust at the
redemption price which would be applicable if such
Share were then being redeemed by the Shareholder
pursuant to subsection (f) of this Section 6.2:
(i) at any time, if the Trustees determine in their
sole discretion that failure to so redeem may have
materially adverse consequences to the holders of
the Shares of the Trust or of any Portfolio, or
(ii) upon such other conditions with respect to
maintenance of Shareholder accounts of a minimum
amount as may from time to time be determined by
the Trustees and set forth in the then current
Prospectus of such Portfolio. Upon such redemption
the holders of the Shares so redeemed shall have no
further right with respect thereto other than to
receive payment of such redemption price.
(h) Net Asset Value. The net asset value per
Share of any Portfolio at any time shall be the
quotient obtained by dividing the value of the net
assets of such Portfolio at such time (being the
current value of the assets belonging to such
Portfolio, less its then existing liabilities) by
the total number of Shares of that Portfolio then
32
outstanding, all determined in accordance with the
methods and procedures, including without
limitation those with respect to rounding,
established by the Trustees from time to time. The
Trustees may determine to maintain the net asset
value per Share of any Portfolio at a designated
constant dollar amount and in connection therewith
may adopt procedures not inconsistent with the 1940
Act for the continuing declaration of income
attributable to that Portfolio as dividends payable
in additional Shares of that Portfolio at the
designated constant dollar amount and for the
handling of any losses attributable to that
Portfolio. Such procedures may provide that in the
event of any loss each Shareholder shall be deemed
to have contributed to the shares of beneficial
interest account of that Portfolio his pro rata
portion of the total number of Shares required to
be cancelled in order to permit the net asset value
per Share of that Portfolio to be maintained, after
reflecting such loss, at the designated constant
dollar amount. Each Shareholder of the Trust shall
be deemed to have expressly agreed, by his
investment in any Portfolio with respect to which
the Trustees shall have adopted any such procedure,
to make the contribution referred to in the
preceding sentence in the event of any such loss.
(i) Transfer. All Shares of each particular
Portfolio shall be transferable, but transfers of
Shares of a particular Portfolio will be recorded
on the Share transfer records of the Trust
applicable to that Portfolio only at such times as
Shareholders shall have the right to require the
Trust to redeem Shares of that Portfolio and at
such other times as may be permitted by the
Trustees.
(j) Equality. All Shares of each particular
Portfolio shall represent an equal proportionate
interest in the assets belonging to that Portfolio
(subject to the liabilities of that Portfolio), and
each Share of any particular Portfolio shall be
equal to each other Share thereof; but the
provisions of this sentence shall not restrict any
distinctions permissible under subsection (c) of
this Section 6.2 that may exist with respect to
dividends and distributions on Shares of the same
Portfolio. The Trustees may from time to time
divide or combine the Shares of any particular
Portfolio into a greater or lesser number of Shares
33
of that Portfolio without thereby changing the
proportionate beneficial interest in the assets
belonging to that Portfolio or in any way affecting
the rights of the holders of Shares of any other
Portfolio.
(k) Rights of Fractional Shares. Any
fractional Share of any Series shall carry
proportionately all the rights and obligations of a
whole Share of that Series, including rights and
obligations with respect to voting, receipt of
dividends and distributions, redemption of Shares,
and liquidation of the Trust or of the Portfolio to
which they pertain.
(l) Conversion Rights. Subject to compliance
with the requirements of the 1940 Act, the Trustees
shall have the authority to provide that holders of
Shares of any Portfolio shall have the right to
convert said Shares into Shares of one or more
other Portfolios in accordance with such
requirements and procedures as the Trustees may
establish.
SECTION 6.3. Ownership of Shares. The ownership of
Shares shall be recorded on the books of the Trust or of a
Transfer Agent or similar agent for the Trust, which books shall
be maintained separately for the Shares of each Series that has
been authorized. Certificates evidencing the ownership of Shares
need not be issued except as the Trustees may otherwise determine
from time to time, and the Trustees shall have power to call
outstanding Share certificates and to replace them with book
entries. The Trustees may make such rules as they consider
appropriate for the issuance of Share certificates, the use of
facsimile signatures, the transfer of Shares and similar matters.
The record books of the Trust as kept by the Trust or any
Transfer Agent or similar agent, as the case may be, shall be
conclusive as to who are the Shareholders and as to the number of
Shares of each Portfolio held from time to time by each such
Shareholder.
The holders of Shares of each Portfolio shall upon
demand disclose to the Trustees in writing such information with
respect to their direct and indirect ownership of Shares of such
Portfolio as the Trustees deem necessary to comply with the
provisions of the Internal Revenue Code, or to comply with the
requirements of any other authority.
SECTION 6.4. Investments in the Trust. The Trustees
may accept investments in any Portfolio of the Trust from such
Persons and on such terms and for such consideration, not
34
inconsistent with the provisions of the 1940 Act, as they from
time to time authorize. The Trustees may authorize any
Distributor, Principal Underwriter, Custodian, Transfer Agent or
other Person to accept orders for the purchase of Shares that
conform to such authorized terms and to reject any purchase
orders for Shares, whether or not conforming to such authorized
terms.
SECTION 6.5. No Pre-emptive Rights. No Shareholder, by
virtue of holding Shares of any Portfolio, shall have any
pre-emptive or other right to subscribe to any additional Shares
of that Portfolio, or to any shares of any other Portfolio, or
any other Securities issued by the Trust.
SECTION 6.6. Status of Shares. 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. Shares shall be deemed to be personal
property, giving only the rights provided herein. 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. The death of a Shareholder during the continuance of
the Trust shall not operate to terminate the Trust or any
Portfolio, 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 Declaration of Trust.
ARTICLE VII
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 7.1. Voting Powers. The Shareholders shall
have power to vote only (i) for the election or removal of
Trustees as provided in Sections 4.1(c) and (e) hereof, (ii) with
respect to the approval or termination in accordance with the
1940 Act of any contract with a Contracting Party as provided in
Section 5.2 hereof as to which Shareholder approval is as
required by the 1940 Act, (iii) with respect to any termination
or reorganization of the Trust or any Portfolio to the extent and
as provided in Sections 9.1 and 9.2 hereof, (iv) with respect to
any amendment of this Declaration of Trust to the extent and as
provided in Section 9.3 hereof, (v) to the same extent as the
stockholders of a Massachusetts business corporation as to
whether or not a court action, proceeding or claim should or
should not be brought or maintained derivatively or as a class
action on behalf of the Trust or any Portfolio, or the
Shareholders of any of them (provided, however, that a
Shareholder of a particular Portfolio shall not in any event be
35
entitled to maintain a derivative or class action on behalf of
any other Portfolio or the Shareholders thereof), and (vi) with
respect to such additional matters relating to the Trust as may
be required by the 1940 Act, this Declaration of Trust, the
By-Laws or any registration of the Trust with the Commission (or
any successor agency) or any State, or as the Trustees may
consider necessary or desirable. If and to the extent that the
Trustees shall determine that such action is required by law,
they shall cause each matter required or permitted to be voted
upon at a meeting or by written consent of Shareholders to be
submitted to a separate vote of the outstanding Shares of each
Portfolio entitled to vote thereon; provided, that (i) when
expressly required by this Declaration or by the 1940 Act,
actions of Shareholders shall be taken by Single Class Voting of
all outstanding Shares of each Series whose holders are entitled
to vote thereon; and (ii) when the Trustees determine that any
matter to be submitted to a vote of Shareholders affects only the
rights or interests of Shareholders of one or more but not all
Portfolios, then only the Shareholders of the Portfolios so
affected shall be entitled to vote thereon.
SECTION 7.2. Number of Votes and Manner of Voting;
Proxies. On each matter submitted to a vote of the Shareholders,
each holder of Shares of any Series shall be entitled to a number
of votes equal to the number of Shares of such Series standing in
his name on the books of the Trust. 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 (2) or more Persons shall be valid if executed by any
one of them unless at or prior to 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 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.
SECTION 7.3. Meetings. Meetings of Shareholders may be
called by the Trustees 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. Written
notice of any meeting of Shareholders shall be given or caused to
be given by the Trustees by mailing such notice at least seven
(7) days before such meeting, postage prepaid, stating the time,
place and purpose of the meeting, to each Shareholder at the
Shareholders address as it appears on the records of the Trust.
The Trustees shall promptly call and give notice of a meeting of
Shareholders for the purpose of voting upon removal of any
36
Trustee of the Trust when requested to do so in writing by
Shareholders holding not less than ten percent (10%) of the
Shares then outstanding. If the Trustees shall fail to call or
give notice of any meeting of Shareholders for a period of thirty
(30) days after written application by Shareholders holding at
least ten percent (10%) of the Shares then outstanding requesting
that a meeting be called for any other purpose requiring action
by the Shareholders as provided herein or in the By-Laws, then
Shareholders holding at least ten percent (10%) of the Shares
then outstanding may call and give notice of such meeting, and
thereupon the meeting shall be held in the manner provided for
herein in case of call thereof by the Trustees.
SECTION 7.4. Record Dates. For the purpose of
determining the Shareholders who are entitled to vote or act at
any meeting or any adjournment thereof, or who are entitled to
participate in any dividend or distribution, or for the purpose
of any other action, the Trustees may from time to time close the
transfer books for such period, not exceeding thirty (30) days
(except at or in connection with the termination of the Trust),
as the Trustees may determine; or without closing the transfer
books the Trustees may fix a date and time not more than sixty
(60) days prior to the date of any meeting of Shareholders or
other action as the date and time of record for the determination
of Shareholders entitled to vote at such meeting or any
adjournment thereof or to be treated as Shareholders of record
for purposes of such other action, and any Shareholder who was a
Shareholder at the date and time so fixed shall be entitled to
vote at such meeting or any adjournment thereof or to be treated
as a Shareholder of record for purposes of such other action,
even though he has since that date and time disposed of his
Shares, and no Shareholder becoming such after that date and time
shall be so entitled to vote at such meeting or any adjournment
thereof or to be treated as a Shareholder of record for purposes
of such other action.
SECTION 7.5. Quorum and Required Vote. A majority of
the Shares entitled to vote shall be a quorum for the transaction
of business at a Shareholders meeting, but any lesser number
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.
A Majority Shareholder Vote at a meeting of which a quorum is
present shall decide any question, except when a different vote
is required or permitted by any provision of the 1940 Act or
other applicable law or by this Declaration of Trust or the
By-Laws, or when the Trustees shall in their discretion require a
larger vote or the vote of a majority or larger fraction of the
Shares of one or more particular Series.
37
SECTION 7.6. Action by Written Consent. Subject to the
provisions of the 1940 Act and other applicable law, any action
taken by Shareholders may be taken without a meeting if a
majority of Shareholders entitled to vote on the matter (or such
larger proportion thereof or of the Shares of any particular
Series as shall be required by the 1940 Act or by any express
provision of this Declaration of Trust or the By-Laws or as shall
be permitted by the Trustees) consent to the action in writing
and if the writings in which such consent is given are filed with
the records of the meetings of Shareholders, to the same extent
and for the same period as proxies given in connection with a
Shareholders meeting. Such consent shall be treated for all
purposes as a vote taken at a meeting of Shareholders.
SECTION 7.7. Inspection of Records. The records of the
Trust shall be open to inspection by Shareholders to the same
extent as is permitted stockholders of a Massachusetts business
corporation under the Massachusetts Business Corporation Law.
SECTION 7.8. Additional Provisions. The By-Laws may
include further provisions for Shareholders votes and meetings
and related matters not inconsistent with the provisions hereof.
ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 8.1. Trustees, Shareholders, etc. Not
Personally Liable; Notice. The Trustees and officers of the
Trust, in incurring any debts, liabilities or obligations, or in
limiting or omitting any other actions for or in connection with
the Trust, are or shall be deemed to be acting as Trustees or
officers of the Trust and not in their own capacities. No
Shareholder shall be subject to any personal liability whatsoever
in tort, contract or otherwise to any other Person or Persons in
connection with the assets or the affairs of the Trust or of any
Portfolio, and subject to Section 8.4 hereof, no Trustee,
officer, employee or agent of the Trust shall be subject to any
personal liability whatsoever in tort, contract, or otherwise, to
any other Person or Persons in connection with the assets or
affairs of the Trust or of any Portfolio, save only that arising
from his own willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his
office or the discharge of his functions. The Trust (or if the
matter relates only to a particular Portfolio, that Portfolio)
shall be solely liable for any and all debts, claims, demands,
judgments, decrees, liabilities or obligations of any and every
kind, against or with respect to the Trust or such Portfolio in
tort, contract or otherwise in connection with the assets or the
affairs of the Trust or such Portfolio, and all Persons dealing
with the Trust or any Portfolio shall be deemed to have agreed
38
that resort shall be had solely to the Trust Property of the
Trust or the Portfolio Assets of such Portfolio, as the case may
be, for the payment or performance thereof.
The Trustees shall use their best efforts to ensure that
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 The Commonwealth of Massachusetts and
shall recite to the effect that the same was executed or made by
or on behalf of the Trust or 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 the particular Portfolio in
question, as the case may be, but the omission thereof shall not
operate to bind any Trustees or Trustee or officers or officer or
Shareholders or Shareholder individually, or to subject the
Portfolio Assets of any Portfolio to the obligations of any other
Portfolio.
SECTION 8.2. Trustees' Good Faith Action; Expert
Advice; No Bond or Surety. The exercise by the Trustees of their
powers and discretions hereunder shall be binding upon everyone
interested. Subject to Section 8.4 hereof, a Trustee shall be
liable for his own willful 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.
Subject to the foregoing, (i) the Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing
of any officer, agent, employee, consultant, Investment Advisor,
Administrator, Distributor or Principal Underwriter, Custodian or
Transfer Agent, Dividend Disbursing Agent, Shareholder Servicing
Agent or Accounting Agent of the Trust, nor shall any Trustee be
responsible for the act or omission of any other Trustee;
(ii) 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, and shall be under no
liability for any act or omission in accordance with such advice
or for failing to follow such advice; and (iii) 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 a Contracting Party appointed by the
Trustees pursuant to Section 5.2 hereof. The Trustees as such
shall not be required to give any bond or surety or any other
security for the performance of their duties.
39
SECTION 8.3. Indemnification of Shareholders. If any
Shareholder (or former Shareholder) of the Trust shall be charged
or held to be personally liable for any obligation or liability
of the Trust solely by reason of being or having been a
Shareholder and not because of such Shareholders acts or
omissions or for some other reason, the Trust (upon proper and
timely request by the Shareholder) shall assume the defense
against such charge and satisfy any judgment thereon, and the
Shareholder or former Shareholder (or the heirs, executors,
administrators or other legal representatives thereof, or in the
case of a corporation or other entity, its corporate or other
general successor) shall be entitled (but solely out of the
assets of the Portfolio of which such Shareholder or former
Shareholder is or was the holder of Shares) to be held harmless
from and indemnified against all loss and expense arising from
such liability.
SECTION 8.4. Indemnification of Trustees, Officers,
etc. Subject to the limitations set forth hereinafter in this
Section 8.4, the Trust shall indemnify (from the assets of the
Portfolio or Portfolios to which the conduct in question relates)
each of its Trustees and officers (including Persons who serve at
the Trusts request as directors, officers or trustees of another
organization in which the Trust has any interest as a
shareholder, creditor or otherwise [hereinafter, together with
such Persons heirs, executors, administrators or personal
representative, referred to as a "Covered Person"]) against all
liabilities, including but not limited to amounts paid in
satisfaction of judgments, in compromise or as fines and
penalties, and expenses, including reasonable accountants and
counsel fees, incurred by any Covered Person in connection with
the defense or disposition of any action, suit or other
proceeding, whether civil or 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 Trustee or officer, director or trustee, except with
respect to any matter as to which it has been determined that
such Covered Person (i) did not act 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 (ii) had acted with
willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of such Covered
Person's office (either and both of the conduct described in (i)
and (ii) being referred to hereafter as "Disabling Conduct"). A
determination that the Covered Person is entitled to
indemnification may be made by (i) a final decision on the merits
by a court or other body before whom the proceeding was brought
that the Covered Person to be indemnified was not liable by
reason of Disabling Conduct, (ii) dismissal of a court action or
40
an administrative proceeding against a Covered Person for
insufficiency of evidence of Disabling Conduct, or (iii) a
reasonable determination, based upon a review of the facts, that
the indemnitee was not liable by reason of Disabling Conduct by
(a) a vote of a majority of a quorum of Trustees who are neither
"interested persons" of the Trust as defined in Section 2(a)(19)
of the 1940 Act nor parties to the proceeding, or (b) an
independent legal counsel in a written opinion. Expenses,
including accountants and counsel fees so incurred by any such
Covered Person (but excluding amounts paid in satisfaction of
judgments, in compromise or as fines or penalties), may be paid
from time to time by the Portfolio or Portfolios to which the
conduct in question related in advance of the final disposition
of any such action, suit or proceeding; provided, that the
Covered Person shall have undertaken to repay the amounts so paid
to such Portfolio or Portfolios if it is ultimately determined
that indemnification of such expenses is not authorized under
this Article VIII and (i) the Covered Person shall have provided
security for such undertaking, (ii) the Trust shall be insured
against losses arising by reason of any lawful advances, or
(iii) a majority of a quorum of the disinterested Trustees, or an
independent legal counsel in a written opinion, shall have
determined, based on a review of readily available facts (as
opposed to a full trial type inquiry), that there is reason to
believe that the Covered Person ultimately will be found entitled
to indemnification.
SECTION 8.5. Compromise Payment. As to any matter
disposed of by a compromise payment by any such Covered Person
referred to in Section 8.4 hereof, pursuant to a consent decree
or otherwise, no such indemnification either for said payment or
for any other expenses shall be provided unless such
indemnification shall be approved (i) by a majority of a quorum
of the disinterested Trustees or (ii) by an independent legal
counsel in a written opinion. Approval by the Trustees pursuant
to clause (i) or by independent legal counsel pursuant to clause
(ii) shall not prevent the recovery from any Covered Person of
any amount paid to such Covered Person in accordance with either
of such clauses 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 willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the
conduct of such Covered Person's office.
SECTION 8.6. Indemnification Not Exclusive, etc. The
right of indemnification provided by this Article VIII shall not
be exclusive of or affect any other rights to which any such
Covered Person may be entitled. As used in this Article VIII, a
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"disinterested" Person is one against whom none of the actions,
suits or other proceedings in question, and no other action, suit
or other proceeding on the same or similar grounds is then or has
been pending or threatened. Nothing contained in this Article
VIII shall affect any rights to indemnification to which
personnel of the Trust, other than Trustees and 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.
SECTION 8.7. 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.
ARTICLE IX
DURATION; REORGANIZATION; AMENDMENTS
SECTION 9.1. Duration and Termination of Trust. Unless
terminated as provided herein, the Trust shall continue without
limitation of time and, without limiting the generality of the
foregoing, no change, alteration or modification with respect to
any Portfolio or Series of Shares shall operate to terminate the
Trust. The Trust may be terminated at any time by a Majority of
the Trustees, subject to the favorable vote of the holders of not
less than a majority of the Shares outstanding and entitled to
vote of each Portfolio of the Trust, or by an instrument or
instruments in writing without a meeting, consented to by the
holders of not less than a majority of such Shares, or by such
greater or different vote of Shareholders of any Series as may be
established by the Certificate of Designation by which such
Series was authorized. Upon termination, after paying or
otherwise providing, for all charges, taxes, expenses and
liabilities, whether due or accrued or anticipated 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, Securities or
other property, or any combination thereof, and distribute the
proceeds to the Shareholders, in conformity with the provisions
of Section 6.2(d) hereof.
SECTION 9.2. Reorganization. The Trustees may sell,
convey and transfer all or substantially all of the assets of the
Trust, or the assets belonging to any one or more Portfolios, to
another trust, partnership, association or corporation organized
under the laws of any state of the United States, or may transfer
such assets to another Portfolio of the Trust, in exchange for
cash, Shares or other Securities (including, in the case of a
42
transfer to another Portfolio of the Trust, Shares of such other
Portfolio), or to the extent permitted by law then in effect may
merge or consolidate the Trust or any Portfolio with any other
Trust or any corporation, partnership, or association organized
under the laws of any state of the United States, all upon such
terms and conditions and for such consideration when and as
authorized by vote or written consent of a Majority of the
Trustees and approved by the affirmative vote of the holders of
not less than a majority of the Shares outstanding and entitled
to vote of each Portfolio whose assets are affected by such
transaction, or by an instrument or instruments in writing
without a meeting, consented to by the holders of not less than a
majority of such Shares, and/or by such other vote of any Series
as may be established by the Certificate of Designation with
respect to such Series. Following such transfer, the Trustees
shall distribute the cash, Shares or other Securities or other
consideration received in such transaction (giving due effect to
the assets belonging to and indebtedness of, and any other
differences among, the various Portfolios of which the assets
have so been transferred) among the Shareholders of the Portfolio
of which the assets have been so transferred; and if all of the
assets of the Trust have been so transferred, the Trust shall be
terminated. Nothing in this Section 9.2 shall be construed as
requiring approval of Shareholders for the Trustees to organize
or assist in organizing one or more corporations, trusts,
partnerships, associations or other organizations, and to sell,
convey or transfer less than substantially all of the Trust
Property or the assets belonging to any Portfolio to such
organizations or entities.
SECTION 9.3. Amendments; etc. All rights granted to
the Shareholders under this Declaration of Trust are granted
subject to the reservation of the right to amend this Declaration
of Trust as herein provided, except that no amendment shall
repeal the limitations on personal liability of any Shareholder
or Trustee or the prohibition of assessment upon the Shareholders
(otherwise than as permitted under Section 6.2(h)) without the
express consent of each Shareholder or Trustee involved. Subject
to the foregoing, the provisions of this Declaration of Trust
(whether or not related to the rights of Shareholders) may be
amended at any time, so long as such amendment does not 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 in writing signed by a Majority of
the Trustees (or by an officer of the Trust pursuant to the vote
of a Majority of the Trustees). Any amendment to this
Declaration of Trust that adversely affects the rights of all
Shareholders may be adopted at any time by an instrument in
writing signed by a Majority of the Trustees (or by an officer of
the Trust pursuant to a vote of a Majority of the Trustees) when
43
authorized to do so by the vote in accordance with Section 7.1
hereof of Shareholders holding a majority of all the Shares
outstanding and entitled to vote, without regard to Series, or if
said amendment adversely affects the rights of the Shareholders
of less than all of the Portfolios, by the vote of the holders of
a majority of all the Shares entitled to vote of each Portfolio
so affected. Subject to the foregoing, any such amendment shall
be effective when the instrument containing the terms thereof and
a certificate (which may be a part of such instrument) to the
effect that such amendment has been duly adopted, and setting
forth the circumstances thereof, shall have been executed and
acknowledged by a Trustee or officer of the Trust and filed as
provided in Section 9.4 hereof.
SECTION 9.4. Filing of Copies of Declaration and
Amendments. The original or a copy of this Declaration and of
each amendment hereto (including each Certificate of Designation
and Certificate of Termination), as well as the certificates
called for by Section 4.1(k) hereof as to changes in the
Trustees, shall be kept at the office of the Trust where it may
be inspected by any Shareholder, and one copy of each such
instrument shall be filed with the Secretary of The Commonwealth
of Massachusetts, as well as with any other governmental office
where such filing may from time to time be required by the laws
of Massachusetts. A restated Declaration, integrating into a
single instrument all of the provisions of this Declaration which
are then in effect and operative, may be executed from time to
time by a Majority of the Trustees and shall, upon filing with
the Secretary of The Commonwealth of Massachusetts, be conclusive
evidence of all amendments contained therein and may thereafter
be referred to in lieu of the original Declaration and the
various amendments thereto.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Governing Law. This Declaration of Trust
is executed and delivered in The Commonwealth of Massachusetts
and with reference to the laws thereof, and the rights of all
parties and the construction and effect of every provision hereof
shall be subject to and construed according to the laws of said
Commonwealth.
SECTION 10.2. Counterparts. This Declaration of Trust
and any amendment thereto may be simultaneously executed in
several counterparts, each of which so executed shall be deemed
to be an original, and such counterparts, together, shall
constitute but one and the same instrument, which shall be
sufficiently evidenced by any such original counterpart.
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SECTION 10.3. Reliance by Third Parties. Any
certificate executed by an individual who, according to the
records in the office of the Secretary of The Commonwealth of
Massachusetts appears to be a Trustee hereunder, certifying to:
(a) the number or identity of Trustees or Shareholders, (b) the
due authorization of the execution of any instrument or writing,
(c) the form of any vote passed as a meeting of Trustees or
Shareholders, (d) the fact that the number of Trustees or
Shareholders present at any meeting or executing any written
instrument satisfies the requirements of this Declaration of
Trust, (e) the form of any By-Law adopted, or the identity of any
officers elected, by the Trustees, or (f) the existence or
non-existence of any fact or facts which in any manner relate to
the affairs of the Trust, shall be conclusive evidence as to the
matters so certified in favor of any Person dealing with the
Trustees, or any of them, and the successors of such Person.
SECTION 10.4. References; Headings. The masculine
gender shall include the feminine and neuter genders. Headings
are placed herein for convenience of reference only and shall not
be taken as a part of this Declaration or control or affect the
meaning, construction or effect hereof.
SECTION 10.5. Use of the Name "Alliance". Alliance
Capital Management Corporation ("Alliance") has consented to the
use by the Trust of the identifying name ("Alliance"), which is a
property right of Alliance. The Trust will only use the name
"Alliance" as a component of its name and for no other purpose,
and will not purport to grant to any third party the right to use
the name "Alliance" for any purpose. Alliance or any corporate
affiliate of Alliance may use or grant to others the right to use
the name "Alliance", as all or a portion of a corporate or
business name or for any commercial purpose, including a grant of
such right to any other investment company. At the request of
Alliance, the Trust will take such action as may be required to
provide its consent to the use of such name by Alliance, or any
corporate affiliate of Alliance, or by any Person to whom
Alliance or an affiliate of Alliance shall have granted the right
to the use of the name "Alliance". Upon the termination of any
investment advisory or management agreement into which Alliance
and the Trust may enter, the Trust shall, upon request by
Alliance, cease to use the name "Alliance" as a component of its
name, and shall not use such name or initials as a part of its
name or for any other commercial purpose, and shall cause its
officers and Trustees to take any and all actions which Alliance
may request to effect the foregoing and to reconvey to Alliance
or such corporate affiliate any and all rights to such name.
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IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal, for himself and his assigns, and has thereby
accepted the Trusteeship as the Initial Trustee of Alliance
International Fund hereby granted and agreed to the provisions
hereof, all as of the day and year first above written.
/s/ Xxxxxx X. Weesher
__________________________
Xxxxxx X. Weesher
The undersigned Settlor of Alliance International Fund,
hereby accepts, approves and authorizes the foregoing Agreement
and Declaration of Trust of Alliance International Fund.
Dated: October 2, 1985
/s/ Xxxxx X. Xxxxx
__________________________
Xxxxx X. Xxxxx
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ACKNOWLEDGMENTS
M A S S A C H U S E T T S
Suffolk, ss.: October 2, 1985
Then personally appeared the above named Xxxxxx X.
Xxxxxxx and acknowledged the foregoing instrument to be his free
act and deed.
Before me,
/s/ Xxxxxxxx X. XxXxxxxx
_____________________________
Notary Public
M A S S A C H U S E T T S
Suffolk, ss.: October 2, 1985
Then personally appeared the above named Xxxxx X. Xxxxx
and acknowledged the foregoing instrument to be his free act and
deed.
Before me,
/s/ Xxxxxxx X. XxXxxxxx
______________________________
Notary Public
47
00250086.AU4
