EXHIBIT a(i)
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
XXXXXXXXX XXXXXXXX INVESTMENT TRUST
a Massachusetts Business Trust
Dated: March 13, 1997
TABLE OF CONTENTS
Page
ARTICLE I Name and Definitions . . . . . . . . . . . . . . . . . . . . . . . .4
Section 1. NAME. . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Section 2. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . .4
ARTICLE II Purpose of Trust. . . . . . . . . . . . . . . . . . . . . . . . . .5
ARTICLE III Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Section 1. DIVISION OF BENEFICIAL INTEREST . . . . . . . . . . . . . . .6
Section 2. OWNERSHIP OF SHARES . . . . . . . . . . . . . . . . . . . . .6
Section 3. INVESTMENTS IN THE TRUST. . . . . . . . . . . . . . . . . . .6
Section 4. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY . . . .6
Section 5. POWER OF BOARD OF TRUSTEES TO CHANGE PROVISIONS
RELATING TO SHARES . . . . . . . . . . . . . . . . . . . .7
Section 6. ESTABLISHMENT AND DESIGNATION OF SERIES OR CLASSES. . . . . .8
Section 7. INDEMNIFICATION OF SHAREHOLDERS . . . . . . . . . . . . . . .10
ARTICLE IV The Board of Trustees . . . . . . . . . . . . . . . . . . . . . . .10
Section 1. NUMBER, ELECTION AND TENURE . . . . . . . . . . . . . . . . .10
Section 2. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE . . . . . . .11
Section 3. POWERS. . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Section 4. PAYMENT OF EXPENSES BY THE TRUST. . . . . . . . . . . . . . .14
Section 5. PAYMENT OF EXPENSES BY SHAREHOLDERS . . . . . . . . . . . . .14
Section 6. OWNERSHIP OF ASSETS OF THE TRUST. . . . . . . . . . . . . . .15
Section 7. SERVICE CONTRACTS . . . . . . . . . . . . . . . . . . . . . .15
ARTICLE V Shareholder Voting Powers and Meetings . . . . . . . . . . . . . . .16
Section 1. VOTING POWERS . . . . . . . . . . . . . . . . . . . . . . . .16
Section 2. VOTING POWER AND MEETINGS . . . . . . . . . . . . . . . . . .16
Section 3. QUORUM AND REQUIRED VOTE. . . . . . . . . . . . . . . . . . .17
Section 4. ACTION BY WRITTEN CONSENT . . . . . . . . . . . . . . . . . .17
Section 5. RECORD DATES. . . . . . . . . . . . . . . . . . . . . . . . .17
Section 6. ADDITIONAL PROVISIONS . . . . . . . . . . . . . . . . . . . .18
ARTICLE VI Net Asset Value, Distributions, and Redemptions . . . . . . . . . .18
Section 1. DETERMINATION OF NET ASSET VALUE, NET INCOME,
AND DISTRIBUTIONS. . . . . . . . . . . . . . . . . . . . .18
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Section 2. REDEMPTIONS AND REPURCHASES . . . . . . . . . . . . . . . . .18
Section 3. REDEMPTIONS AT THE OPTION OF THE TRUST. . . . . . . . . . . .19
ARTICLE VII Compensation and Limitation of Liability of Trustees. . . . . . .19
Section 1. COMPENSATION. . . . . . . . . . . . . . . . . . . . . . . . .19
Section 2. LIMITATION OF LIABILITY . . . . . . . . . . . . . . . . . . .19
Section 3. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . .20
ARTICLE VIII Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . .20
Section 1. TRUSTEES, SHAREHOLDERS, ETC. NOT PERSONALLY LIABLE; NOTICE. .20
Section 2. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND
OR SURETY. . . . . . . . . . . . . . . . . . . . . . . . .21
Section 3. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. . . . . . .21
Section 4. TERMINATION OF TRUST OR SERIES. . . . . . . . . . . . . . . .21
Section 5. MERGER AND CONSOLIDATION. . . . . . . . . . . . . . . . . . .22
Section 6. FILING OF COPIES, REFERENCES, HEADINGS. . . . . . . . . . . .22
Section 7. APPLICABLE LAW. . . . . . . . . . . . . . . . . . . . . . . .22
Section 8. AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . .22
Section 9. TRUST ONLY. . . . . . . . . . . . . . . . . . . . . . . . . .22
Section 10. USE OF THE NAME "RCS EMERGING GROWTH FUND". . . . . . . . . .23
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AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
XXXXXXXXX XXXXXXXX INVESTMENT TRUST
THIS AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST is made and
entered into this 13th day of March, 1997 by the Trustees named hereunder.
WITNESSETH that
WHEREAS, the Trustees desire and have agreed to manage all property coming
into their hands as trustees of a Massachusetts business trust in accordance
with the provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby direct that this Agreement and
Declaration of Trust be filed with the Secretary of The Commonwealth of
Massachusetts and do hereby declare that they will hold all cash, securities and
other assets, which they may from time to time acquire in any manner as Trustees
hereunder, IN TRUST, and manage and dispose of the same upon the following terms
and conditions for the pro rata benefit of the holders of Shares in this Trust.
ARTICLE I
Name and Definitions
SECTION 1. NAME. This Trust shall be known as XXXXXXXXX XXXXXXXX
INVESTMENT TRUST and the Trustees shall conduct the business of the Trust under
that name or any other name as they, in their sole discretion, from time to time
determine.
SECTION 2. DEFINITIONS. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) The "Trust" refers to the Massachusetts business trust
established by this Agreement and Declaration of Trust, as amended from time to
time;
(b) "Trustees" refers to the persons named at the end of this
Declaration of Trust and constituting the Board of Trustees of the Trust, so
long as they continue in office in accordance with the terms hereof, and all
other persons who may from time to time be duly elected or appointed to serve on
the Board of Trustees in accordance with Article IV hereof;
(c) "Shares" means the equal proportionate transferable units of
interest into which the beneficial interest in the Trust shall be divided from
time to time or, if more than one Series of Shares is authorized by the
Trustees, the equal proportionate units into which each
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Series of Shares shall be divided from time to time or, if more than one class
of Shares of any Series is authorized by the Trustees, the equal proportionate
units into which each class of such Series of Shares shall be divided from time
to time;
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company Act of 1940
and the Rules and Regulations thereunder, all as amended from time to time;
(f) The terms "Commission" and "Principal Underwriter" shall
have meanings given them in the 1940 Act;
(g) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust, as amended or restated from time to time;
(h) "By-Laws" shall mean the By-Laws of the Trust as amended
from time to time;
(i) "Series Company" refers to the form of registered open-end
investment company described in Section 18(f)(2) of the 1940 Act or in any
successor statutory provision; and
(j) "Series" refers to each Series of Shares established and
designated under or in accordance with the provisions of Article III.
(k) The term "class" or "class of Shares" refers to the division
of Shares representing any series into two or more classes as provided in
Article III.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on the business
of a managed investment company registered under the 1940 Act through one or
more portfolios invested primarily in securities.
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ARTICLE III
Shares
SECTION 1. DIVISION OF BENEFICIAL INTEREST. The Shares of the Trust
shall be issued in one or more Series as the Trustees may, without Shareholder
approval, authorize. The Trustees may, without Shareholder approval, divide the
Shares of any Series into two or more classes, Shares of each such class having
such preferences or special or relative rights or privileges (including
conversion rights, if any) as the Trustees may determine and as are not
inconsistent with any provision of this Agreement and Declaration of Trust.
Each Series shall be preferred over all other Series in respect of the assets
allocated to that Series. The beneficial interest in each Series shall at all
times be divided into Shares, without par value, each of which shall, except as
the Trustees may otherwise authorize in the case of any Series that is divided
into two or more classes, represent an equal proportionate interest in the
Series with each other Share of the same Series, none having priority or
preference over another. The number of Shares authorized shall be unlimited,
and the Shares so authorized may be represented in part by fractional shares.
The Trustees may from time to time divide or combine the Shares of any Series or
class into a greater or lesser number without thereby changing the proportionate
beneficial interests in the Series or class. Shareholders shall have no
preemptive or other right to subscribe to any additional Shares or other
securities issued by the Trust or any Series.
SECTION 2. OWNERSHIP OF SHARES. The ownership of Shares shall be
recorded on the books of the Trust or a transfer or similar agent for the Trust,
which books shall be maintained separately for the Shares of each Series. No
certificates certifying the ownership of Shares shall be issued except as the
Board of Trustees may otherwise determine from time to time. The Trustees may
make such rules as they consider appropriate for the transfer of Shares and
similar matters. The record books of the Trust as kept by the Trust or any
transfer or similar agent, as the case may be, shall be conclusive as to who are
the Shareholders of each Series and class and as to the number of Shares of each
Series and class held from time to time by each.
SECTION 3. INVESTMENTS IN THE TRUST. The Trustees may accept
investments in the Trust from such persons, at such times, on such terms, and
for such consideration as they from time to time authorize.
SECTION 4. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY.
Shares shall be deemed to be personal property giving only the rights provided
in this instrument. Every Shareholder, by virtue of having become a Shareholder
shall be held to have expressly assented and agreed to the terms hereof and to
have become a party hereto. The death of a Shareholder during the existence of
the Trust shall not operate to terminate the Trust, 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 entitles
such representative only to the rights of said deceased Shareholder under this
Trust. Ownership of Shares shall not entitle the
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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 as partners. Neither
the Trust nor the Trustees, nor any officer, employee or agent of the Trust
shall have any power to bind personally any Shareholders, nor, except as
specifically provided herein, to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the Shareholder may
at any time personally agree to pay.
SECTION 5. POWER OF BOARD OF TRUSTEES TO CHANGE PROVISIONS RELATING TO
SHARES. Notwithstanding any other provision of this Declaration of Trust and
without limiting the power of the Board of Trustees to amend the Declaration of
Trust as provided elsewhere herein, the Board of Trustees shall have the power
to amend this Declaration of Trust, at any time and from time to time, in such
manner as the Board of Trustees may determine in their sole discretion, without
the need for Shareholder action, so as to add to, delete, replace or otherwise
modify any provisions relating to the Shares contained in this Declaration of
Trust, provided that before adopting any such amendment without Shareholder
approval, the Board of Trustees shall determine that it is consistent with the
fair and equitable treatment of all Shareholders or that Shareholder approval is
not otherwise required by the 1940 Act or other applicable law.
Without limiting the generality of the foregoing, the Board of Trustees
may, for the above-stated purposes, amend the Declaration of Trust to:
(a) create one or more Series or classes of Shares (in addition
to any Series or classes already existing or otherwise) with such rights and
preferences and such eligibility requirements for investment therein as the
Trustees shall determine and reclassify any or all outstanding Shares as shares
of a particular Series or class in accordance with such eligibility
requirements;
(b) amend any of the provisions set forth in paragraphs (a)
through (h) of Section 5 of this Article III;
(c) combine one or more Series or classes of Shares into a
single Series or class on such terms and conditions as the Trustees shall
determine.
(d) change or eliminate any eligibility requirements for
investment in Shares of any Series or class, including, without limitation, to
provide for the issue of Shares of any Series or class in connection with any
merger or consolidation of the Trust with the other trust or company or any
acquisition by the Trust of part or all of the assets of another trust or
investment company;
(e) change the designation of any Series or class of Shares;
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(f) change the method of allocating dividends among the various
Series or classes of Shares;
(g) allocate assets, liabilities and expenses of the Trust to a
particular Series of Shares or apportion the same among two or more Series,
provided that any liabilities or expenses incurred by a particular Series of
Shares shall be payable solely out of the assets of that Series; and to the
extent necessary or appropriate to give effect to the preferences and special or
relative rights and privileges of any classes of Shares, allocate assets,
liabilities, income and expenses of a Series to a particular class of Shares of
that Series or apportion the same among two or more classes of Shares of that
Series;
(h) specifically allocate assets to any or all Series of Shares
or create one or more additional Series of Shares which are preferred over all
other Series of Shares in respect of assets specifically allocated thereto or
any dividends paid by the Trust with respect to any net income, however
determined, earned from the investment and reinvestment of any assets so
allocated or otherwise and provide for any special voting or other rights with
respect to such Series.
SECTION 6. ESTABLISHMENT AND DESIGNATION OF SERIES OR CLASSES. The
establishment and designation of any Series or class of Shares shall be
effective upon the resolution by a majority of the then Trustees, setting forth
such establishment and designation and the relative rights an preferences of
such Series or class, or as otherwise provided in such resolution. Shares of
each Series or class established pursuant to this Section 6, unless otherwise
provided in the resolution establishing such Series or class, shall have the
following relative rights and preferences:
(a) ASSETS BELONGING TO SERIES. All consideration received
by the Trust for the issue or sale of Shares of a particular Series, together
with all assets in which such consideration is invested or reinvested, all
income, earnings, profits, and proceeds thereof from whatever source derived,
including, without limitation, 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
irrevocably belong to that Series for all purposes, subject only to the
rights of creditors, and shall be so recorded upon the books of account of
the Trust. Such considerations, assets, income, earnings, profits and
proceeds thereof, from whatever source derived, including, without
limitation, 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, are herein referred to as "assets
belonging to" that Series. 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 Series (collectively
"General Assets"), the Trustees shall allocate such General Assets to,
between or among any one or more of the Series in such manner and on such
basis as they, in their sole discretion, deem fair and equitable, and any
General Asset so allocated to a particular Series shall belong to that
Series; and, in the event that there are any assets, income, earnings,
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profits and proceeds thereof, funds or payments belonging to any Series which
are not readily identifiable as belonging to any particular class
(collectively "Series General Assets"), the Trustees shall allocate such
Series General Assets to, between or among any one or more of the classes of
such Series in such manner and on such basis as they, in their sole
discretion, deem fair and equitable, and any Series General Asset so
allocated to a particular class shall belong to that class. Each such
allocation by the Trustees shall be conclusive and binding upon the
Shareholders of all Series and classes for all purposes.
(b) LIABILITIES BELONGING TO SERIES. The assets belonging to
each particular Series shall be charged with the liabilities of the Trust in
respect to that Series and all expenses, costs, charges and reserves
attributable to that Series and any general liabilities of the Trust, or of any
Series, which are not readily identifiable as belonging to any particular
Series, or any particular class of any Series, shall be allocated and charged by
the Trustees to and among any one or more of the Series, or to and among any one
or more of the classes of such Series, as the case may be, in such manner and on
such basis as the Trustees in their sole discretion deem fair and equitable.
The liabilities, expenses, costs, charges, and reserves so charged to a Series
or class are herein referred to as "liabilities belonging to" that Series or
class. Each allocation of liabilities, expenses, costs, charges and reserves by
the Trustees shall be conclusive and binding upon the holders of all Series and
classes for all purposes. Under no circumstances shall the assets allocated or
belonging to any particular Series be charged with liabilities attributable to
any other Series. All persons who have extended credit which has been allocated
to a particular Series, or who have a claim or contract which has been allocated
to any particular Series, shall look only to the assets of that particular
Series for payment of such credit, claim or contract.
(c) DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS, AND REPURCHASES.
Notwithstanding any other provisions of this Declaration of Trust, including,
without limitation, Article VI, no dividend or distribution (including, without
limitation, any distribution paid upon termination of the Trust or of any
Series) with respect to, nor any redemption or repurchase of, the Shares of any
Series shall be effected by the Trust other than from the assets belonging to
such Series, nor, except as specifically provided in Section 7 of this Article
III, shall any Shareholder of any particular Series otherwise have any right or
claim against the assets belonging to any other Series except to the extent that
such Shareholder has such a right or claim hereunder as a Shareholder of such
other Series. The Trustees shall have full discretion, to the extent not
inconsistent with the 1940 Act, to determine which items shall be treated as
income and which items as capital; and each such determination and allocation
shall be conclusive and binding upon the Shareholders.
(d) VOTING. Notwithstanding any other provision of this
Declaration of Trust, on any matter submitted to a vote of Shareholders, all
Shares of the Trust then entitled to vote shall be voted in the aggregate as a
single class without regard to Series or class; except (1) when required by the
1940 Act or when the Trustees shall have determined that the matter affects one
or more Series or classes materially differently, Shares shall be voted by
individual Series or class; and (2) when the Trustees have determined that the
matter affects only the interests of one
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or more Series or classes, then only Shareholders of such Series or classes
shall be entitled to vote thereon.
(e) FRACTIONS. Any fractional Share of a Series or class of any
Series shall carry proportionately all the rights and obligations of a whole
share of that Series or class, as the case may be, including rights with respect
to voting, receipt of dividends and distributions, redemptions of Shares and
termination of the Trust.
(f) EXCHANGE PRIVILEGE. The Trustees shall have the authority
to provide that the holders of Shares of any Series shall have the right to
exchange said Shares for Shares of one or more other Series of Shares in
accordance with such requirements and procedures as may be established by the
Trustees.
(g) COMBINATION OF SERIES. The Trustees shall have the
authority, without the approval of the Shareholders of any Series or class of
any Series unless otherwise required by applicable law, to combine the assets
and liabilities belonging to any two or more Series or classes into assets and
liabilities belonging to a single Series or class.
(h) ELIMINATION OF SERIES OR CLASSES. At any time that there
are no Shares outstanding of any particular Series or class of any Series
previously established and designated, the Trustees may amend this Declaration
of Trust to abolish that Series or class and to rescind the establishment and
designation thereof.
SECTION 7. INDEMNIFICATION OF SHAREHOLDERS. In case any Shareholder or
former Shareholder shall be held to be personally liable solely by reason of his
or her being or having been a Shareholder and not because of his or her acts or
omissions or for some other reason, the Shareholder or former Shareholder (or
his or her heirs, executors, administrators, or other legal representatives or
in the case of a corporation or other entity, its corporate or other general
successor) shall be entitled out of the assets of the Trust to be held harmless
from and indemnified against all loss and expense arising from such liability.
ARTICLE IV
The Board of Trustees
SECTION 1. NUMBER, ELECTION AND TENURE. The number of Trustees
constituting the Board of Trustees shall be five (5), unless such number shall
be changed from time to time by written instrument signed by a majority of the
Board of Trustees, provided, however, that the number of Trustees shall in no
event be less than one nor more than 15. The Board of Trustees, by action of a
majority of the then Trustees at a duly constituted meeting, may fill vacancies
in the Board of Trustees or remove Trustees with or without cause. Each Trustee
shall serve during the continued lifetime of the Trust until he or she dies,
resigns, is declared bankrupt or incompetent by a court of appropriate
jurisdiction, or is removed, or, if sooner, until the next
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meeting of Shareholders called for the purpose of electing Trustees and until
the election and qualification of his or her successor. Any Trustee may resign
at any time by written instrument signed by him or her and delivered to any
officer of the Trust or to a meeting of the Trustees. Such resignation shall be
effective upon receipt unless specified to be effective at some other time.
Except to the extent expressly provided in a written agreement with the Trust,
no Trustee resigning and no Trustee removed shall have any right to any
compensation for any period following his or her resignation or removal, or any
right to damages on account of such removal. The Shareholders may fix the
number of Trustees and elect Trustees at any meeting of Shareholders called by
the Trustees for that purpose.
SECTION 2. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE. The death,
declination, resignation, retirement, removal, or incapacity of one or more
Trustees, or all of them, shall not operate to annul the Trust or to revoke any
existing agency created pursuant to the terms of this Declaration of Trust.
Whenever a vacancy in the Board of Trustees shall occur, until such vacancy is
filled as provided in Article IV, Section 1, the Trustees in office, 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 of Trust.
As conclusive evidence of such vacancy, a written instrument certifying the
existence of such vacancy may be executed by an officer of the Trust or by a
majority of the Board of Trustees. In the event of the death, declination,
resignation, retirement, removal, or incapacity of all the then Trustees within
a short period of time and without the opportunity for at least one Trustee
being able to appoint additional Trustees to fill vacancies, the Trust's
investment adviser or investment advisers jointly, if there is more than one,
are empowered to appoint new Trustees subject to the provisions of Section 16(a)
of the 1940 Act.
SECTION 3. POWERS. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Board of Trustees,
and such Board shall have all powers necessary or convenient to carry out
that responsibility including the power to engage in securities transactions
of all kinds on behalf of the Trust. Without limiting the foregoing, the
Trustees may: adopt By-Laws not inconsistent with this Declaration of Trust
providing for the regulation and management of the 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; fill vacancies in or remove from their number, and
may elect and remove such officers and appoint and terminate such agents as
they consider appropriate; appoint from their own number and establish and
terminate one or more committees consisting of two or more Trustees which may
exercise the powers and authority of the Board of Trustees to the extent that
the Trustees determine; employ one or more custodians to employ subcustodians
and to deposit all or any part of such assets in a system or systems for the
central handling of securities or with a Federal Reserve Bank, retain a
transfer agent or a shareholder servicing agent or both; provide for the
issuance and distribution of Shares by the Trust directly or through one or
more Principal Underwriters or otherwise; redeem, repurchase and transfer
Shares pursuant to applicable law; set record dates for the determination of
Shareholders with respect to various matters; declare and pay dividends and
distributions to Shareholders of each Series from the assets of such Series;
and in general
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delegate such authority as they consider desirable to any officer of the Trust,
to any committee of the Trustees and to any agent or employee of the Trust or to
any such custodian, transfer or shareholder servicing agent, or Principal
Underwriter. 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.
Without limiting the foregoing, the Board of Trustees shall have power and
authority:
(a) To invest and reinvest cash, to hold cash uninvested, and to
subscribe for, invest in, reinvest in, purchase or otherwise acquire, own, hold,
pledge, sell, assign, transfer, exchange, distribute, write options on, lend or
otherwise deal in or dispose of contracts for the future acquisition or delivery
of fixed income or other securities, and securities of every nature and kind,
including, without limitation, all types of bonds, debentures, stocks,
negotiable or non-negotiable instruments, obligations, evidences of
indebtedness, certificates of deposit or indebtedness, commercial paper,
repurchase agreements, bankers' acceptances, and other securities of any kind,
issued, created, guaranteed, or sponsored by any and all persons, including,
without limitation, states, territories, and possessions of the United States
and the District of Columbia and any political subdivision, agency, or
instrumentality thereof, any foreign government or any political subdivision of
the U.S. Government or any foreign government, or any international
instrumentality, or by any bank or savings institution, or by any corporation or
organization organized under the laws of the United States or of any state,
territory, or possession thereof, or by any corporation or organization
organized under any foreign law, or in "when issued" contracts for any such
securities, to change the investments of the assets of the privileges of
ownership or interest in respect of any and all such investments of every kind
and description, including, without limitation, the right to consent and
otherwise act with respect thereto, with power to designate one or more persons,
firms, associations, or corporations to exercise any of said rights, powers, and
privileges in respect of any of said instruments;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate,
lease, or write, options with respect to or otherwise deal in any property
rights relating to any or all of the assets of the Trust;
(c) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property; and to execute and
delivery proxies or powers of attorney to such person or persons as the Trustees
shall deem proper, granting to such person or persons such power and discretion
with relation to securities or property as the Trustees shall deem proper;
(d) To exercise powers and right of subscription or otherwise
which in any manner arise out of ownership of securities;
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(e) To hold any security or property in a form not indicating
any trust, whether in bearer, unregistered or other negotiable form, or in its
own name or in the name of a custodian or subcustodian or a nominee or nominees
or otherwise.
(f) Subject to the provisions of Article III, Section 3, to
allocate assets, liabilities, income and expenses of the Trust to a particular
Series of Shares or to apportion the same among two or more Series, provided
that any liabilities or expenses incurred by or arising in connection with a
particular Series of Shares shall be payable solely out of the assets of that
Series; and to the extent necessary or appropriate to give effect to the
preferences and special or relative rights and privileges of any classes of
Shares, to allocate assets, liabilities, income and expenses of a Series to a
particular class of Shares of the Series or to apportion the same among two or
more classes of Shares of that Series;
(g) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer of any
security which is held in the Trust; to consent to any contract, lease,
mortgage, purchase or sale of property by such corporation or issuer; and to pay
calls or subscriptions with respect to any security held in the Trust;
(h) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that connection to
deposit any security with or transfer any security to, any such committee,
depositary or trustee, and to delegate to them such power and authority with
relation to any security (whether or not so deposited or transferred) as the
Trustees shall deem proper, and to agree to pay, and to pay, such portion of the
expenses and compensation of such committee, depositary or trustee as the
Trustees shall deem proper;
(i) To compromise, attribute or otherwise adjust claims in favor
of or against the Trust or any matter in controversy, including but not limited
to claims for taxes;
(j) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(k) To borrow funds or other property in the name of the Trust
exclusively for Trust purposes;
(l) 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;
(m) 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 or payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, investment advisers, principal underwriters, or
independent
-14-
contractors of the Trust, individually against all claims and liabilities of
every nature arising by reason of holding, being or having held any such
office or position, or by reason of any action alleged to have been taken or
omitted by any such person as Trustee, officer, employee, agent, investment
adviser, principal underwriter, or independent contractor, including any
action taken or omitted that may be determined to constitute negligence;
whether or not the Trust would have the power to indemnify such person
against liability; and
(n) To adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans, trusts and provisions, including the purchasing of life insurance
annuity contracts as a means of providing such retirement and other benefits,
for any or all of the Trustees, officers, employees and agents of the Trust.
The Trustees shall not be limited to investing in obligations maturing
before the possible termination of the Trust or one or more of its Series. The
Trustees shall not in any way be bound or limited by any present or future law
or custom in regard to investment by fiduciaries. The Trustees shall not be
required to obtain any court order to deal with any assets of the Trust or take
any other action hereunder.
SECTION 4. PAYMENT OF EXPENSES BY THE TRUST. The Trustees are
authorized to pay or cause to be paid out of the principal or income of the
Trust, or partly out of the principal and partly out of income, as they deem
fair, all expenses, fees, charges, taxes and liabilities incurred or arising in
connection with the Trust, or in connection with the management thereof,
including, but not limited to; the Trustees' compensation and such expenses and
charges for the services of the Trust's officers, employees, investment adviser
or manager, principal underwriter, auditors, counsel, custodian, transfer agent,
Shareholder servicing agent, and such other agents or independent contractors
and such other expenses and charges as the Trustees may deem necessary or proper
to incur.
SECTION 5. PAYMENT OF EXPENSES BY SHAREHOLDERS. The Trustees shall
have the power, as frequently as they may determine, to cause each Shareholder,
or each Shareholder of any particular Series or class, to pay directly, in
advance or arrears, for charges of the Trust's custodian or transfer,
Shareholder servicing or similar agent, an amount fixed from time to time by the
Trustees, by setting off such charges due from such Shareholder from declared
but unpaid dividends owed such Shareholder and/or by reducing the number of
shares in the account of such Shareholder by that number of full and/or
fractional Shares which represents the outstanding amount of such charges due
from such Shareholder.
SECTION 6. OWNERSHIP OF ASSETS OF THE TRUST. Title to all of the
assets of the Trust shall at all times be considered as vested in the Board of
Trustees.
SECTION 7. SERVICE CONTRACTS.
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(a) Subject to such requirements and restrictions as may be set
forth in the By-Laws, the Trustees may, at any time and from time to time,
contract for exclusive or nonexclusive advisory and/or management services for
the Trust or for any Series with any corporation, trust, association or other
organization (the "Manager"); and any such contract may contain such other terms
as the Trustees may determine, including, without limitation, authority for the
Manager to determine from time to time without prior consultation with the
Trustees what investments shall be purchased, held, sold or exchanged and what
portion, if any, of the assets of the Trust shall be held uninvested and to make
changes in the Trust's investments.
(b) The Trustees may also, at any time and from time to time,
contract with any corporation, trust, association or other organization,
appointing it exclusive or nonexclusive distributor or Principal Underwriter for
the Shares of one or more of the Series or classes. Every such contract shall
comply with such requirements and restrictions as may be set forth in the
By-Laws; and any such contract may contain such other terms as the Trustees may
determine.
(c) The Trustees are also empowered, at any time and from time
to time, to contract with any corporations, trusts, associations or other
organizations, appointing it or them the custodian, transfer agent and/or
shareholder servicing agent for the Trust or one or more of its Series or
classes. Every such contract shall comply with such requirements and
restrictions as may be set forth in the By-Laws or stipulated by resolution of
the Trustees.
(d) The Trustees are further empowered, at any time and from
time to time, to contract with any entity to provide such other services to the
Trust or one or more of the Series or classes, as the Trustees determine to be
in the best interests of the Trust and the applicable Series or class.
(e) 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, distributor, or affiliate or agent of or
for any corporation, trust, association, or other organizational or for any
parent or affiliate of any organization with which an advisory or
management contract, or principal underwriter's or distributor's contract,
or transfer, shareholder servicing or other type of service contract may
have been or may hereafter be made, or that any such organization, or any
parent or affiliate thereof, is a Shareholder or has an interest in the
Trust, or that
(ii) any corporation, trust, association or other organization
with which an advisory or management contract or principal underwriter's or
distributor's contract, or transfer, shareholder servicing or other type of
service contract may have been or may hereafter be made also has an
advisory or management contract, or principal underwriter's or
distributor's contract, or transfer, shareholder servicing or other service
contract with one or more other corporations, trust, associations, or other
organizations, or has other business or interests
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shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same, or create any liability or accountability to the Trust or its
Shareholders, provided approval of each such contract is made pursuant to the
requirements of the 1940 Act.
ARTICLE V
Shareholder Voting Powers and Meetings
SECTION 1. VOTING POWERS. Subject to the voting powers of one or more
classes of Shares as set forth elsewhere in this Declaration of Trust or in the
Bylaws, the Shareholders shall have power to vote only (i) for the election of
Trustees as provided in Article IV, Section 1, (ii) 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 the Shareholders,
(iii) with respect to the termination of the Trust or any Series or class to the
extent and as provided in Article VIII, Section 4, and (iv) with respect to such
additional matters relating to the Trust as may be required by any registration
of the Trust with the Commission (or any successor agency) or any state, or as
the Trustees may consider necessary or desirable. Each whole Share shall be
entitled to one vote as to any matter on which it is entitled to vote and each
fractional Share shall be entitled to a proportionate fractional vote. There
shall be no cumulative voting in the election of Trustees. Shares may be voted
in person or by proxy. A proxy with respect to Shares held in the name of two
or more persons shall be valid if executed by any one of them unless at or prior
to 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.
At any time when no Shares of a Series or class are outstanding, the Trustees
may exercise all rights of Shareholders of that Series or class with respect to
matters affecting that Series or class, take any action required by law, this
Declaration of Trust or the By-Laws, to be taken by Shareholders.
SECTION 2. VOTING POWER AND MEETINGS. Meetings of the Shareholders of
the Trust or of any Series or class may be called by the Trustees for the
purpose of electing Trustees as provided in Article IV, Section 1 and for such
other purposes as may be prescribed by law, by this Declaration of Trust or by
the By-Laws. Meetings of the Shareholders may also be called by the Trustees
from time to time for the purpose of taking action upon any other matter deemed
by the Trustees to be necessary or desirable. A meeting of Shareholders may be
held at any place designated by the Trustees. Written notice of any meeting of
Shareholders shall be give 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 and place of the meeting, to each Shareholder entitled to vote at such
meeting, at the Shareholder's address as it appears on the records of the Trust.
Whenever notice of a meeting is required to be given to a Shareholder under this
Declaration of
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Trust or the By-Laws, a written waiver thereof, executed before or after the
meeting by such Shareholder or his or her attorney thereunto authorized and
filed with the records of the meeting, shall be deemed equivalent to such
notice.
SECTION 3. QUORUM AND REQUIRED VOTE. Except when a larger quorum is
required by applicable law, by the By-Laws or by this Declaration of Trust,
forty percent (40%) of the Shares entitled to vote on a particular matter shall
constitute a quorum for the transaction of business on that matter at a
Shareholders' meeting, except that where any provision of law or of this
Declaration of Trust or the By-Laws requires that holders of any Series or class
shall vote as a Series or class, then forty percent (40%) of the aggregate
number of Shares of that Series or class entitled to vote shall be necessary to
constitute a quorum for the transaction of business by that Series or class.
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 further notice. Except when
a larger vote is required by any provision of this Declaration of Trust or the
By-Laws or by applicable law, when a quorum is present, a majority of the Shares
voted shall decide any questions and a plurality shall elect a Trustee, provided
that where any provision of law or of this Declaration of Trust or of the
By-Laws permits or requires that the holders of any Series or class shall vote
as a Series or class, then a majority of the Shares of that Series or class
voted on the matter (or a plurality with respect to the election of a Trustee)
shall decide that matter insofar as that Series or class is concerned.
SECTION 4. ACTION BY WRITTEN CONSENT. Any action taken by Shareholders
may be taken without a meeting if Shareholders holding a majority of the Shares
entitled to vote on the matter (or such larger proportion thereof as shall be
required by any express provision of this Declaration of Trust or by the
By-Laws) consent to the action in writing and such written consents are filed
with the records of the meetings of Shareholders. Such consent shall be treated
for all purposes as a vote taken at a meeting of Shareholders.
SECTION 5. RECORD DATES. For the purpose of determining the
Shareholders of any Series or class who are entitled to vote or act at any
meeting or any adjournment thereof, the Trustees may from time to time fix a
time, which shall be not more than ninety (90) days before the date of any
meeting of Shareholders, as the record date for determining the Shareholders of
such Series or class having the right to notice of and to vote at such meeting
and any adjournment thereof, and in such case only Shareholders of record on
such record date shall have such right, notwithstanding any transfer of shares
on the books of the Trust after the record date. For the purpose of determining
the Shareholders of any Series or class who are entitled to receive payment or
any dividend or of any other distribution, the Trustees may from time to time
fix a date, which shall be before the date for the payment of such dividend or
such other payment, as the record date for determining the Shareholders of such
Series or class having the right to receive such dividend or distribution.
Without fixing a record date the Trustees may for voting and/or distribution
purposes close the register or transfer books for one or more Series or classes
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for all or any part of the period between a record date and a meeting of
Shareholders or the payment of a distribution. Nothing in this Section shall be
construed as precluding the Trustees from setting different record dates for
different Series or classes.
SECTION 6. ADDITIONAL PROVISIONS. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VI
Net Asset Value, Distributions, and Redemptions
SECTION 1. DETERMINATION OF NET ASSET VALUE, NET INCOME, AND
DISTRIBUTIONS. The term "net asset value" of the Shares of each Series or class
shall mean: (i) the value of all the assets of such Series or class; (ii) less
the total liabilities of such Series or class; (iii) divided by the number of
Shares of such Series or class outstanding, in each case at the time of each
determination. The "number of Shares of such Series or class outstanding" for
the purposes of such computation shall be exclusive of any Shares of such Series
or class to be redeemed and not then redeemed as to which the redemption price
has been determined, but shall include Shares of such Series or class presented
for repurchase and not then repurchased and Shares of such Series or class to be
redeemed and not then redeemed as to which the redemption price has not been
determined and Shares of such Series or class the sale of which has been
confirmed. Any fractions involved in the computation of net asset value per
share shall be adjusted to the nearest cent unless the Trustees shall determine
to adjust such fractions to a fraction of a cent.
Determinations under this Section made in good faith shall be binding on
all parties concerned. The manner of determining the net assets of any Series or
class or of determining the net asset value of the Shares of any Series or class
may from time to time be altered as necessary or desirable in the judgment of
the Trustees to conform to any other method prescribed or permitted by any
applicable law or regulation.
SECTION 2. REDEMPTIONS AND REPURCHASES. The Trust shall purchase such
Shares as are offered by any Shareholder for redemption, upon the presentation
of a proper instrument of transfer together with a request directed to the Trust
or a person designated by the Trust that the Trust purchase such Shares or in
accordance with such other procedures for redemption as the Trustees may from
time to time authorize; and the Trust will pay therefor the net asset value
thereof, as determined in accordance with the By-Laws and applicable law, next
determined. Payment for said Shares shall be made by the Trust to the
Shareholder within seven days after the date on which the request is made in
proper form. The obligation set forth in this Section 2 is subject to the
provision that in the event that any time the New York Stock Exchange is closed
for other than weekends or holidays, or if permitted by the Rules of the
Commission during periods when trading on the Exchange is restricted or during
any emergency which makes it impracticable for the Trust to dispose of the
investments of the applicable Series or to determine fairly the value of the net
assets belonging to such Series or during any other period permitted by
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order of the Commission for the protection of investors, such obligations may be
suspended or postponed by the Trustees.
The redemption price may in any case or cases be paid wholly or partly in
kind if the Trustees determine that such payment is advisable in the interest of
the remaining Shareholders of the Series for which the Shares are being
redeemed. Subject to the foregoing, the fair value, selection and quantity of
securities or other property so paid or delivered as all or part of the
redemption price may be determined by or under authority of the Trustees. In no
case shall the Trust be liable for any delay of any corporation or other person
in transferring securities selected for delivery as all or part of any payment
in kind.
SECTION 3. REDEMPTIONS AT THE OPTION OF THE TRUST. The Trust shall
have the right at its option and at any time to redeem Shares of any Shareholder
at the net asset value thereof as described in Section 1 of this Article VI:
(i) if at such time such Shareholder owns Shares of any Series having an
aggregate net asset value of less than an amount determined from time to time by
the Trustees, but not to exceed $40,000; or (ii) to the extent that such
Shareholder owns Shares equal to or in excess of a percentage, determined from
time to time by the Trustees, of the outstanding Shares of the Trust or of any
Series or class of any Series.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
SECTION 1. COMPENSATION. The Trustees as such shall be entitled to
reasonable compensation from the Trust, and they may fix the amount of such
compensation. Nothing herein shall in any way prevent the employment of any
Trustee for advisory, management, legal, accounting, investment banking or other
services and payment for the same by the Trust.
SECTION 2. LIMITATION OF LIABILITY. The Trustees shall not be
responsible or liable in any event for any neglect or wrong-doing of any
officer, agent, employee, manager or Principal Underwriter of the Trust, nor
shall any Trustee be responsible for the act or omission of any other Trustee,
but nothing herein contained shall protect any Trustee against any liability to
which he or she would otherwise be subject by reason of wilful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of his or her office.
Every note, bond, contract, instrument, certificates or undertaking and
every other act or thing whatsoever issued, executed or done by or on behalf of
the Trust or the Trustees or any of them in connection with the Trust shall be
conclusively deemed to have been issued, executed or done only in or with
respect to their or his or her capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
SECTION 3. INDEMNIFICATION. The Trustees shall be entitled and
empowered to the fullest extent permitted by law to purchase with Trust assets
insurance for and to provide by
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resolution or in the By-Laws for indemnification out of Trust assets for
liability and for all expenses reasonably incurred or paid or expected to be
paid by a Trustee or officer in connection with any claim, action, suit or
proceeding in which he or she becomes involved by virtue of his or her capacity
or former capacity with the Trust. The provisions, including any exceptions and
limitations concerning indemnification, may be set forth in detail in the
By-Laws or in a resolution of the Board of Trustees.
ARTICLE VIII
Miscellaneous
SECTION 1. TRUSTEES, SHAREHOLDERS, ETC. NOT PERSONALLY LIABLE; NOTICE.
All persons extending credit to, contracting with or having any claim against
the Trust or any Series shall look only to the assets of the Trust, or, to the
extent that the liability of the Trust may have been expressly limited by
contract to the assets of a particular Series, only to the assets belonging to
the relevant Series, for payment under such credit, contract or claim; and
neither the Shareholders nor the Trustees, nor any of the Trust's officers,
employees or agents, whether past, present or future, shall be personally liable
therefor. Nothing in this Declaration of Trust shall protect any Trustee
against any liability to which such Trustee would otherwise be subject by reason
of wilful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the office of Trustee.
Every note, bond, contract, instrument, certificate or undertaking made or
issued on behalf of the Trust by the Board of Trustees, by any officers or
officer or otherwise may include a notice that this Declaration of Trust is on
file with the Secretary of The Commonwealth of Massachusetts and may recite that
the note, bond, contract, instrument, certificate or undertaking was executed or
made by or on behalf of the Trust or by them as Trustee or Trustees or as
officers or officer or otherwise 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
upon the assets belonging to the Series or class for the benefit of which the
Trustees have caused the note, bond, contract, instrument, certificate or
undertaking to be made or issued, and may contain such further recital as he or
she or they may deem appropriate, but the omission of any such recital shall not
operate to bind any Trustee or Trustees or officer or officers or Shareholders
of any other person individually.
SECTION 2. TRUSTEE'S 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. A Trustee shall be liable solely for
his or her own wilful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of Trustee, and
shall not be liable for errors of judgment or mistakes of fact or law. The
Trustees may take advice of counsel or other experts with respect to the meaning
and operation of this Declaration of Trust, and shall be under no liability for
any act or omission in accordance with
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such advice nor for failing to follow such advice. The Trustees shall not be
required to give any bond as such, nor any surety if a bond is required.
SECTION 3. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
SECTION 4. TERMINATION OF TRUST OR SERIES. Unless terminated as
provided herein, the Trust shall continue without limitation of time. The Trust
may be terminated at any time by the affirmative vote of a "majority of the
outstanding voting securities" of each Series (as the quoted phrase is defined
in the 1940 Act), voting separately by Series, or by the Trustees by written
notice to the Shareholders. Any Series may be terminated at any time by vote of
the affirmative vote of "majority of the outstanding voting securities" of that
Series (as the quoted phrase is defined in the 1940 Act) or by the Trustees by
written notice to the Shareholders of that Series.
Upon termination of the Trust (or any Series, as the case may be), after
paying or otherwise providing for all charges, taxes, expenses and liabilities
belonging, severally, to each Series (or the applicable Series, as the case may
be), 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 belonging, severally, to each Series
(or the applicable Series, as the case may be), to distributable form in cash or
shares or other securities, or any combination thereof, and distribute the
proceeds belonging to each Series (or the applicable Series, as the case may
be), to the Shareholders of that Series, as a Series, ratably according to the
number of Shares of that Series held by the several Shareholders on the date of
termination, except to the extent otherwise required or permitted by the
preferences and special or relative rights and privileges of any classes of
Shares of that Series, provided that any distribution to the Shareholders of a
particular class of Shares shall be made to such Shareholders pro rata in
proportion to the number of Shares of such class held by each of them.
SECTION 5. MERGER AND CONSOLIDATION. The Trustees may cause the Trust
or one or more of its Series to be merged into or consolidated with another
Trust or company or the Shares exchanged under or pursuant to any state or
Federal statute, if any, or otherwise to the extent permitted by law. Such
merger or consolidation of Share exchange must be authorized by vote of a
majority of the outstanding Shares of the Trust, as whole, or any affected
Series, as may be applicable; provided that in all respects not governed by
statute or applicable law, the Trustees shall have power to prescribe the
procedure necessary or appropriate to accomplish a sale of assets, merger or
consolidation.
SECTION 6. FILING OF COPIES, REFERENCES, HEADINGS. The original or a
copy of this instrument and of each amendment hereto shall be kept at the office
of the Trust where it may be inspected by any Shareholder. A copy of this
instrument and of each amendment hereto shall be filed by the Trust with the
Secretary of The Commonwealth of Massachusetts and with any other governmental
office where such filing may from time to time be required. Anyone dealing with
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the Trust may rely on a certificate by an officer of the Trust as to whether or
not any such amendments have been made and as to any matters in connection with
the Trust hereunder; and, with the same effect as if it were the original, may
rely on a copy certified by an officer of the Trust to be a copy of this
instrument or of any such amendments. In this instrument and in any such
amendment, references to this instrument, and all expressions like "herein,"
"hereof," and "hereunder," shall be deemed to refer to this instrument as
amended or affected by any such amendments. Headings are placed herein for
convenience of reference only and shall not be taken as a part hereof or control
or affect the meaning, construction or affect of this instrument. This
instrument may be executed in any number of counterparts each of which shall be
deemed an original.
SECTION 7. APPLICABLE LAW. This Agreement and Declaration of Trust is
created under and is to be governed by and construed and administered according
to the laws of The Commonwealth of Massachusetts. The Trust shall be of the
type commonly called a Massachusetts business trust, and without limiting the
provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a trust.
SECTION 8. AMENDMENTS. This Declaration of Trust may be amended at any
time by an instrument in writing signed by a majority of the then Trustees.
SECTION 9. TRUST ONLY. It is the intention of the Trustees to create
only the relationship of Trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention of the Trustees to
create a general partnership, limited partnership, joint stock association,
corporation, bailment, or any form of legal relationship other than a trust.
Nothing in this Agreement and Declaration of Trust shall be construed to make
the Shareholders, either by themselves, or with the Trustees, partners or
members of a joint stock association.
SECTION 10. USE OF THE NAME "RCS EMERGING GROWTH FUND". The Trust
recognizes that Xxxxxxxxx Xxxxxxxx & Company LLC ("RS&Co.") and its affiliates
have exclusive use, control and rights to the name and identifying words "RCS
Emerging Growth Fund." The Trust also recognizes that in consideration of the
sponsorship and creation of the Trust and such Series as may be created from
time to time, RS&Co. has exclusive use, control and rights to the names they
have designated and may designate for the Trust and its Series. The Trust
understands that RS&Co. has consented (a) to the use by the Trust of the
identifying words or name "RCS Emerging Growth Fund" as the name of the Trust
and (b) to the use by the Trust of the names or identifying words which may be
used for each of the Trust's Series from RS&Co., as Manager of the Trust and
said Series. Such names or identifying words or any variations thereof may be
used from time to time in other connections and for other purposes by RS&Co. or
affiliated entities. RS&Co. has the right to require the Trust to cease using
the names designated for each Series of the Trust during the time RS&Co. or an
affiliate was employed as the investment manager or adviser of the Trust or such
Series if the Trust and said Series cease to employ RS&Co. or such affiliate in
such capacity. Future names adopted by the Trust for itself and its
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Series shall be the property of RS&Co. and its affiliates, and the use of each
names shall be subject to the same conditions set forth in this Section insofar
as such names or identifying words require the consent of RS&Co.
IN WITNESS WHEREOF, the Trustees named below do hereby set their hands as
of the 13th day of March, 1997.
/S/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
/S/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
/S/ G. XXXXX XXXXX
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G. Xxxxx Xxxxx
/S/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
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Xxxx X. Xxxxx
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