THE GCG TRUST
AMENDED AND RESTATED
AGREEMENT AND
DECLARATION OF TRUST
FEBRUARY 26, 2002
TABLE OF CONTENTS
Page
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ARTICLE I -- THE TRUST
Section 1.1 Name ................................................... 2
Section 1.2 Definitions ............................................ 2
ARTICLE II -- TRUSTEES
Section 2.1 Management of the Trust ................................ 3
Section 2.2 Election of Trustees ................................... 3
Section 2.3 Term of Office of Trustees ............................. 4
Section 2.4 Termination of Service and Appointment of Trustees ..... 4
Section 2.5 Temporary Absence of Trustee ........................... 5
Section 2.6 Number of Trustees ..................................... 5
Section 2.7 Effect of Death, Resignation, etc. of the Trustee ...... 5
Section 2.8 No Accounting .......................................... 5
Section 2.9 Ownership of the Trust ................................. 5
ARTICLE III -- POWERS OF TRUSTEES
Section 3.1 General ................................................ 5
Section 3.2 Investments ............................................ 6
Section 3.3 Legal Title ............................................ 6
Section 3.4 Issuance and Repurchase of Securities .................. 7
Section 3.5 Borrow Money ........................................... 7
Section 3.6 Officers; Delegation; Committees ....................... 7
Section 3.7 Collection and Payment ................................. 7
Section 3.8 Expenses ............................................... 7
Section 3.9 Manner of Acting; By-laws .............................. 8
Section 3.10 Voting Trusts .......................................... 8
Section 3.11 Miscellaneous Powers ................................... 8
Section 3.12 Further Powers ......................................... 9
ARTICLE IV -- ADVISORY, MANAGEMENT AND DISTRIBUTION ARRANGEMENTS
Section 4.1 Advisory and Management Arrangements ................... 9
Section 4.2 Distribution Arrangements .............................. 10
Section 4.3 Parties to Contract .................................... 10
Section 4.4 Provisions and Amendments .............................. 10
ARTICLE V-- LIMITATIONS OF LIABILITY OF SHAREHOLDERS, TRUSTEES AND OTHERS
Section 5.1 Trustees, Shareholders, etc. Not Personally
Liable; Notice ..................................... 10
Section 5.2 Trustee's Good Faith Action; Expert Advice;
No Bond or Surety ................................... 11
Section 5.3 Indemnification of Shareholders ........................ 11
Section 5.4 Indemnification of Trustees, Officers, etc ............. 12
Section 5.5 Compromise Payment ..................................... 13
Section 5.6 Indemnification Not Exclusive, etc ..................... 13
Section 5.7 Liability of Third Persons Dealing with Trustees ....... 13
ARTICLE VI -- SHARES OF BENEFICIAL INTEREST
Section 6.1 Beneficial Interest .................................... 13
Section 6.2 Series Designation ..................................... 14
Section 6.3 Class Designation ...................................... 16
Section 6.4 Rights of Shareholders ................................. 17
Section 6.5 Trust Only ............................................. 17
Section 6.6 Issuance of Shares ..................................... 18
Section 6.7 Register of Shares ..................................... 18
Section 6.8 Transfer Agent and Registrar ........................... 18
Section 6.9 Transfer of Shares ..................................... 18
Section 6.10 Notice ................................................. 19
ARTICLE VII -- CUSTODIANS
Section 7.1 Appointment and Duties ................................. 19
Section 7.2 Action Upon Termination of Custodian Agreement ......... 20
Section 7.3 Central Certificate System ............................. 20
Section 7.4 Acceptance of Receipts in Lieu of Certificates ......... 20
ARTICLE VIII -- REDEMPTION
Section 8.1 Redemptions ............................................ 21
Section 8.2 Redemptions of Accounts of Less than a Minimum Dollar
Amount ............................................... 21
ARTICLE IX -- DETERMINATION OF NET ASSET VALUE, NET INCOME AND DISTRIBUTIONS
Section 9.1 Net Asset Value ........................................ 21
Section 9.2 Distributions to Shareholders .......................... 22
Section 9.3 Power to Modify Foregoing Procedures ................... 22
ARTICLE X -- SHAREHOLDERS
Section 10.1 Voting Powers .......................................... 22
Section 10.2 Meetings ............................................... 22
Section 10.3 Quorum and Required Vote ............................... 23
Section 10.4 Record Date for Meetings ............................... 23
Section 10.5 Proxies ................................................ 23
Section 10.6 Additional Provisions .................................. 24
Section 10.7 Reports ................................................ 24
Section 10.8 Shareholder Action by Written Consent .................. 24
ARTICLE XI -- DURATION; TERMINATION OF TRUST; AMENDMENT; MERGERS; ETC.
Section 11.1 Duration ............................................... 24
Section 11.2 Termination ............................................ 24
Section 11.3 Reorganization ......................................... 25
Section 11.4 Amendment Procedure .................................... 26
Section 11.5 Incorporation .......................................... 27
ARTICLE XII -- MISCELLANEOUS
Section 12.1 Filing ................................................. 27
Section 12.2 Resident Agent ......................................... 28
Section 12.3 Governing Law .......................................... 28
Section 12.4 Counterparts ........................................... 28
Section 12.5 Reliance by Third Parties .............................. 28
Section 12.6 Provisions in Conflict with Law or Regulations ......... 28
AMENDED AND RESTATED
AGREEMENT AND
DECLARATION OF TRUST
OF
THE GCG TRUST
THE AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST of The GCG
Trust made this 26th day of February, 2002 by the parties signatory hereto, as
trustees (such persons, so long as they shall continue in office in accordance
with the terms of this Amended and Restated Agreement and Declaration of Trust,
and all other persons who at the time in question have been duly elected or
appointed as trustees in accordance with the provisions of this Amended and
Restated Agreement and Declaration of Trust and are then in office, being
hereinafter called the "Trustees") and by the holders of shares of beneficial
interest issued and to be issued in the future hereunder hereinafter provided.
WITNESSETH
WHEREAS, the trust was formed on August 3, 1988 as a trust fund under the
laws of the Commonwealth of Massachusetts for the investment and reinvestment of
funds contributed thereto;
WHEREAS, an Agreement and Declaration of Trust dated March 19, 1996, and
several amendments and restatements thereto (collectively, the "Trust
Instrument") have been executed by the then-current Trustees of the Trust;
WHEREAS, it is the desire of the Trustees that the beneficial interest in
the trust assets continue to be divided into transferable shares of beneficial
interest, which may, at the discretion of the Trustees, be divided into separate
series as hereinafter provided;
WHEREAS, the Trustees desire to permit the trust assets to be divided into
separate classes of separate series;
NOW, THEREFORE, the Trustees hereby declare that they will continue to hold
in trust all money and property contributed to the trust fund (and each series
and class thereof) to manage and dispose of the same for the benefit of the
holders from time to time of the shares of beneficial interest issued hereunder
and subject to the provisions hereof, to wit:
ARTICLE I
THE TRUST
1.1. NAME. The name of the trust created hereby (the "Trust"), which
term shall be deemed to include any series of the Trust when the context
requires, shall be "The GCG Trust," and so far as may be practicable the
Trustees shall conduct the activities of the Trust, execute all documents and
xxx or be sued under that name, which name (and the word "Trust" wherever
hereinafter used) shall refer to the Trustees as Trustees, and not individually,
and shall not refer to the officers, agents, employees or shareholders of the
Trust or any Series thereof. Each Series or Class of the Trust which shall be
established and designated by the Trustees pursuant to Section 6.2 and Section
6.3, respectively, shall conduct its activities under such name as the Trustees
shall determine and set forth in the resolution establishing such Series or
Class. Should the Trustees determine that the use of the name of the Trust, or
any Series or Class thereof, is not advisable, they may select such other name
for the Trust, or such Series or Class thereof, as they deem proper and the
Trust, or such Series or Class thereof, may conduct its activities under such
other name. Any name change shall be effected by resolution of a majority of the
then Trustees. Any such resolution, which shall be reduced to writing and
certified by any officer of the Trust, shall have the status of an amendment to
this Amended and Restated Declaration of Trust.
1.2. DEFINITIONS. As used in this Agreement and Declaration of Trust,
the following terms shall have the following meanings:
The "1940 Act" refers to the Investment Company Act of 1940 and the
regulations promulgated thereunder, as amended from time to time.
The terms "Affiliated Person," "Assignment," "Commission," "Interested
Person," "Majority Shareholder Vote" (the 67% or 50% requirement of the third
sentence of Section 2(a)(42) of the 1940 Act, whichever may be applicable) and
"Principal Underwriter" shall have the meanings given them in the 1940 Act.
"Commission" shall mean the U.S. Securities and Exchange Commission.
"Class" shall mean any separate Class of a Series that may be established
and designated by the Trustees from time to time pursuant to Section 6.3.
"Declaration" or "Declaration of Trust" shall mean this Amended and
Restated Agreement and Declaration of Trust as amended from time to time.
References in this Declaration to "Declaration," "hereof," "herein" and
"hereunder" shall be deemed to refer to the Declaration rather than the article
or section in which such words appear.
"Fundamental Policies" shall mean the investment objective for each Series
and the investment restrictions set forth in the registration statement for the
Trust on Form N-1A and designated as fundamental policies therein.
"Person" shall mean and include individuals, corporations, partnerships,
trusts, associations, joint ventures and other entities, whether or not legal
entities, and governments and agencies and political subdivisions thereof.
"Prospectus" shall mean the currently effective prospectus of any Series of
the Trust under the Securities Act of 1933, as amended.
"Series" shall mean any separate Series that may be established and
designated by the Trustees from time to time pursuant to Section 6.2.
"Shareholders" shall mean as of any particular time all holders of record
of outstanding Shares at such time.
"Shares" shall mean the equal proportionate transferable units of interest
into which the beneficial interest in any Series and Class of the Trust shall be
divided from time to time and includes fractions of Shares as well as whole
Shares. All references to Shares shall be deemed to be Shares of any or all
Series and/or any or all Classes as the context may require.
"Trustees" shall mean the signatories to this Declaration, so long as they
shall continue in office in accordance with the terms hereof, and all other
persons who at the time in question have been duly elected or appointed and have
qualified as Trustees in accordance with the provisions hereof and are then in
office, and each such person is herein referred to as the "Trustee," and
reference in this Declaration to a Trustee or Trustees shall refer to such
person or persons in their capacity as Trustees hereunder.
"Trust Property" shall mean as of any particular time any and all property,
real or personal, tangible or intangible, which at such time is owned or held by
or for the account of the Trust, any Series or Class thereof, or the Trustees.
ARTICLE II
TRUSTEES
2.1 MANAGEMENT OF THE TRUST. The business and affairs of the Trust
shall be managed by the Trustees, and they shall have all powers necessary and
desirable to carry out that responsibility. The Trustees named herein (or their
successors appointed hereunder) shall serve until the election of Trustees at
the first meeting of Shareholders of the Trust.
2.2 ELECTION OF TRUSTEES. Except for any Trustees appointed to fill
vacancies pursuant to Section 2.4 hereof, the Shareholders of the Trust shall
elect Trustees at Shareholder meetings called for that purpose to the extent
required by the 0000 Xxx. The Trustees need not be elected annually or at
regular intervals. Except as provided in Section 10.2, the Trustees shall not be
required to call a meeting of Shareholders for the
purpose of electing Trustees, provided, however, that in the event that at any
time, other than the time preceding the first meeting of Shareholders for the
purpose of electing Trustees, less than a majority of the Trustees holding
office at that time were elected by the Shareholders, a meeting of the
Shareholders for the purpose of electing Trustees shall be held promptly and in
any event within 60 days (unless the Commission shall by order extend such
period). No election of a Trustee shall become effective, however, until the
person elected shall have accepted such election and agreed in writing to be
bound by the terms of this Declaration. If re-elected, a Trustee may succeed
himself or herself. Trustees need not own shares.
2.3. TERM OF OFFICE OF TRUSTEES. A Trustee duly appointed or elected
hereunder shall hold office until the occurrence of any of the following: (a)
the Trustee may resign his or her trust by written instrument signed by him or
her and delivered to the other Trustees, which shall take effect upon such
delivery or upon such later date as is specified therein; (b) the Trustee may be
removed at any time by written instrument signed by at least two-thirds of the
number of Trustees prior to such removal, specifying the date when such removal
shall become effective; (c) the Trustee who requests in writing to be retired or
who has become mentally or physically incapacitated may be retired by written
instrument signed by a majority of the other Trustees, specifying the date of
his retirement; and (d) the Trustee may be removed at any meeting of
Shareholders of the Trust by a vote of two-thirds of the outstanding Shares or
by a written declaration executed, without a meeting, by the holders of not less
than two-thirds of the outstanding Shares. A meeting for the purpose of
considering the removal of a person serving as Trustee shall be called by the
Trustees if requested in writing to do so by the holders (which for purposes of
this provision and only this provision shall be the persons having a voting
interest in the shares of the Trust) of not less than 10% of the outstanding
shares of the Trust.
2.4. TERMINATION OF SERVICE AND APPOINTMENT OF TRUSTEES. In case of
the death, resignation, retirement, removal or mental or physical incapacity of
any of the Trustees, or in case a vacancy shall, by reason of an increase in
number, or for any other reason, exist, the remaining Trustees may (but need not
unless required by the 1940 Act, so long as there are at least two remaining
Trustees) fill such vacancy by appointing for the remaining term of the
predecessor Trustee such other person as they in their discretion shall see fit.
Such appointment shall be effective upon the signing of a written instrument by
a majority of the Trustees in office and the written acceptance of this
Declaration by the appointee. An appointment of a Trustee may be made by the
Trustees then in office in anticipation of a vacancy to occur by reason of
retirement, resignation or increase in number of Trustees effective at a later
date, provided that said appointment shall become effective only at or after the
effective date of said retirement, resignation or increase in number of Trustees
and the written acceptance of this Declaration by the appointee. As soon as any
Trustee so appointed shall have accepted this Trust, the trust estate shall vest
in the new Trustee or Trustees, together with the continuing Trustees, without
any further act or conveyance, and he or she shall be deemed a Trustee
hereunder. Any appointment authorized by this Section 2.4 is subject to the
provisions of Section 16(a) of the 1940 Act.
2.5. TEMPORARY ABSENCE OF TRUSTEE. Any Trustee may, by power of
attorney, delegate his or her power for a period not exceeding six months at any
one time to any other Trustee or Trustees, provided that in no case shall less
than two of the Trustees personally exercise the power hereunder except as
herein otherwise expressly provided.
2.6. NUMBER OF TRUSTEES. The number of Trustees serving hereunder at
any time shall be determined by the Trustees themselves, but shall not be less
than two (2).
2.7. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE. The death,
resignation, retirement, removal, or mental or physical incapacity of the
Trustees, or any one of them, shall not operate to annul or terminate the Trust
or any Series or Class hereunder or to revoke or terminate any existing agency
or contract created pursuant to the terms of this Declaration, and until such
vacancy is filled, the Trustees in office, regardless of their number, shall
have all of the powers granted to the Trustees and shall discharge all the
duties imposed upon them by this Declaration.
2.8. NO ACCOUNTING. Except to the extent required by the 1940 Act or
under circumstances which would justify his or her removal for cause, no person
ceasing to be a Trustee as a result of his death, resignation, retirement,
removal or incapacity (nor the estate of any such person) shall be required to
make an accounting to the shareholders or remaining Trustees upon such
cessation.
2.9. OWNERSHIP OF THE TRUST. The assets of the Trust shall be held
separate and apart from any assets now or hereafter held in any capacity other
than as Trustee hereunder by the Trustees or by any successor Trustees. All of
the assets of the Trust shall at all times be considered as vested in the
Trustees. No Shareholder shall be deemed to have a severable ownership in any
individual asset of the Trust or any right of partition or possession thereof,
but each Shareholder shall have a proportionate undivided beneficial interest in
the Trust.
ARTICLE III
POWERS OF TRUSTEES
3.1. GENERAL. The Trustees in all instances shall act as principals,
and are and shall be free from the control of the Shareholders. The Trustees
shall have full power and authority to do any and all acts and to make and
execute any and all contracts and instruments that they may consider necessary
or appropriate in connection with the management of the Trust. The Trustees
shall not be bound or limited by present or future laws or customs with regard
to investment by trustees or fiduciaries, but shall have full authority and
absolute power and control over the Trust Property and business of the Trust to
the same extent as if the Trustees were the sole owners of the Trust Property
and business in their own right, including such authority, power and control to
do all acts and things as they, in their uncontrolled discretion, shall deem
proper to accomplish
the purposes of this Trust. The enumeration of any specific power herein shall
not be construed as limiting the aforesaid powers.
3.2. INVESTMENTS. The Trustees shall have power, subject to the
Fundamental Policies, to:
(a) conduct, operate and carry on the business of an investment company;
(b) subscribe for, invest in, reinvest in, purchase or otherwise acquire,
hold, pledge, sell, assign, transfer, lend, exchange, mortgage,
hypothecate, lease, distribute or otherwise deal in or dispose of
common stocks, preferred stocks, bonds, debentures, warrants and
rights to purchase securities, mortgage related securities such as
mortgage-backed securities and collateralized mortgage obligations,
options on securities, futures contracts and options on futures
contracts, covered spread options, gold bullion and coins and other
precious metals (silver and platinum) bullion and futures contracts
with respect to such commodities, certificates of beneficial interest,
negotiable or non-negotiable instruments, bank obligations, evidences
of indebtedness, privately placed debt securities, certificates of
deposit or indebtedness, commercial paper, repurchase agreements,
reverse repurchase agreements, firm commitment agreements and
"when-issued" securities and other securities, including, without
limitation, those issued, guaranteed or sponsored by any state,
territory or possession of the United States and the District of
Columbia and their political subdivisions, agencies and
instrumentalities, or by the United States Government or its agencies
or instrumentalities, or international instrumentalities, or by any
bank, savings institution, corporation or other business entity
organized under the laws of the United States and, to the extent
provided in the Prospectus and not prohibited by the Fundamental
Policies of the Trust, foreign securities of issuers or governments
organized under foreign laws, foreign currency transactions and
options on foreign currency transactions, and any other securities,
instruments, assets, or obligations; and to exercise any and all
rights, powers and privileges of ownership or interest in respect of
any and all such investments of every kind and description, 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; and the Trustees shall be deemed to have the
foregoing powers with respect to any additional securities in which
any Series of the Trust may invest should the investment policies set
forth in the Prospectus or the Fundamental Policies be amended.
The Trustees shall not be limited to investing in obligations maturing
before the possible termination of the Trust or any Series or Class thereof.
3.3. LEGAL TITLE. 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 any Series thereof, 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 or any Series thereof is appropriately protected.
3.4. ISSUANCE AND REPURCHASE OF SECURITIES. The Trustees shall have
the power to issue, sell, repurchase, redeem, retire, cancel, acquire, hold,
resell, reissue, dispose of, transfer, and otherwise deal in, Shares, including
shares in fractional denominations, and, subject to the more detailed provisions
set forth in Articles VIII and IX, to apply to any such repurchase, redemption,
retirement, cancellation or acquisition of Shares any funds or property of the
applicable Series of the Trust whether capital or surplus or otherwise, to the
full extent now or hereafter permitted by the laws of the Commonwealth of
Massachusetts governing business corporations.
3.5. BORROW MONEY. Subject to the Fundamental Policies, the Trustees
shall have power to borrow money or otherwise obtain credit and to secure the
same by mortgaging, pledging or otherwise subjecting as security the assets of
the Trust or any Series thereof, including the lending of portfolio securities,
and to endorse, guarantee or undertake the performance of any obligation,
contract or engagement of any other person, form, association or corporation.
3.6. OFFICERS; DELEGATION; COMMITTEES. The Trustees 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 and may provide for the compensation of all
of the foregoing. The Trustees shall have power, consistent with their
continuing exclusive authority over the management of the Trust and the Trust
Property, to delegate from time to time to such of their number or to officers,
employees or agents of the Trust the doing of such things and the execution of
such instruments either in the name of the Trust or the names of the Trustees or
otherwise as the Trustees may deem expedient. The Trustees may appoint from
their number and terminate any one or more committees consisting of two 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 powers and authority of the Trustees as the Trustees may
determine.
3.7. COLLECTION AND PAYMENT. The Trustees shall have power to collect
all property due to the Trust or any Series thereof; to pay all claims,
including taxes, against the Trust Property; to prosecute, defend, compromise,
arbitrate or abandon any claims relating to the Trust Property; to foreclose any
security interest securing any obligations, by virtue of which any property is
owed to the Trust or any Series thereof; and to enter into releases, agreements
and other instruments.
3.8. EXPENSES. The Trustees shall have power to incur and pay any
expenses which in the opinion of the Trustees are necessary or incidental to
carry out any of the purposes of the Trust, or any Series or Class thereof, and
to pay reasonable compensation from the funds of the Trust to themselves as
Trustees. The Trustees shall fix the compensation of all officers, employees and
Trustees. The Trustees may pay themselves
such compensation for special services, including legal, underwriting,
syndicating and brokerage services, as they in good faith may deem reasonable
and reimbursement for expenses reasonably incurred by themselves on behalf of
the Trust.
3.9. MANNER OF ACTING; BY-LAWS. Except as otherwise provided herein or
in the By-laws or required by the 1940 Act, any action to be taken by the
Trustees may be taken by a majority of the Trustees present at a meeting of the
Trustees (a quorum being present), including any meeting held by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, or by written consents
of a majority of Trustees then in office (or such larger or different number as
may be required by the 1940 Act or other applicable law). The Trustees may adopt
and from time to time amend or repeal the By-laws for the conduct of the
business of the Trust.
3.10. VOTING TRUSTS. The Trustees shall have power and authority for
and on behalf of the Trust to join with other holders of any securities or debt
instruments in acting through a committee, depositary, voting trustee or
otherwise, and in that connection to deposit any security or debt instrument
with, or transfer any security or debt instrument to, any such committee,
depositary or trustee, and to delegate to them such power and authority with
relation to any security or debt instrument (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.
3.11. MISCELLANEOUS POWERS. The Trustees shall have the power to: (a)
employ or contract with such Persons as the Trustees may deem desirable for the
transaction of the business of the Trust or any Series or Class thereof; (b)
enter into joint ventures, partnership and any other combinations or
associations; (c) purchase, and pay for out of Trust Property, insurance as they
deem necessary or appropriate for the conduct of the business, including without
limitation, policies insuring the Shareholders, Trustees, officers, employees,
agents, investment advisers, distributors, selected dealers or independent
contractors of the Trust, or any Series or Class thereof, against all claims
arising by reason of holding any such position or by reason of any action taken
or omitted by any such Person in such capacity, whether or not constituting
negligence, or whether or not the Trust would have the power to indemnify such
Person against such liability; (d) establish pension, profit-sharing, share
purchase, and other retirement, incentive and benefit plans for any Trustees,
officers, employees and agents of the Trust; (e) make donations, irrespective of
benefit to the Trust, for charitable, religious, educational, scientific, civic
or similar purposes; (f) to the extent permitted by law, indemnify any Person
with whom the Trust, or any Series or Class thereof, has dealings, including any
adviser, administrator, manager, distributor and selected dealers with respect
to any Series or Class, to such extent as the Trustees shall determine; (g)
guarantee indebtedness or contractual obligations of others; (h) determine and
change the fiscal year of the Trust and the method in which its accounts shall
be kept; and (i) adopt a seal for the Trust, provided that the absence of such
seal shall not impair the validity of any instrument executed on behalf of the
Trust.
3.12. FURTHER POWERS. The Trustees shall have power to conduct the
business of the Trust or any Series or Class thereof, carry on its operations
and maintain offices both within and without the Commonwealth of Massachusetts,
in any and all states of the United States of America, in the District of
Columbia, and in any and all commonwealths, territories, dependencies, colonies,
possessions, agencies or instrumentalities of the United States of America and
of foreign governments, and to do all such other things and execute all such
instruments as they deem necessary, proper or desirable in order to promote the
interests of the Trust or any Series or Class thereof although such things are
not herein specifically mentioned. Any determination as to what is in the
interests of the Trust or any Series or Class thereof made by the Trustees in
good faith shall be conclusive. In construing the provisions of this
Declaration, the presumption shall be in favor of a grant of power to the
Trustees. The Trustees will not be required to obtain any court order to deal
with the Trust Property. No Trustee shall be required to give any bond or other
security for the performance of any of his or her duties hereunder.
ARTICLE IV
ADVISORY, MANAGEMENT AND DISTRIBUTION ARRANGEMENTS
4.1. ADVISORY AND MANAGEMENT ARRANGEMENTS. Subject to a Majority
Shareholder Vote, if required by law, of the applicable Series or Class, the
Trustees may in their discretion from time to time enter into advisory,
administrative or management contracts whereby the other party to such contract
shall undertake to furnish to the Trust or one or more Series thereof such
advisory, administrative and management services, with respect to a Series or a
Class as the Trustees shall from time to time consider desirable and all upon
such terms and conditions as the Trustees may in their discretion determine.
Subject to a Majority Shareholder Vote if required by law, the investment
adviser may engage one or more firms to serve as Portfolio Manager to a Series
pursuant to a sub-investment advisory contract in which the Portfolio Manager
makes all determinations with respect to the purchase and sale of portfolio
securities and places, in the names of the Series all orders for execution of
the Series' portfolio transactions upon such terms and conditions and for such
compensation as the Trustees may in their discretion approve. A Portfolio
Manager may, in turn, engage its own sub-adviser in managing a particular
Series. Notwithstanding any provisions of this Declaration, the Trustees may
authorize any adviser, portfolio manager, administrator or manager (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
any Series of the Trust on behalf of the Trustees or may authorize any officer,
employee or Trustee to effect such purchases, sales, loans or exchanges pursuant
to recommendations of any such adviser, portfolio manager, administrator or
manager (and all without further action by the Trustees). Any such purchases,
sales, loans or exchanges shall be deemed to have been authorized by all of the
Trustees.
4.2. DISTRIBUTION ARRANGEMENTS. The Trustees may in their discretion
from time to time enter into a contract, providing for the sale of the Shares of
the Trust, or any Series or any Class hereof, whereby the Trust may either agree
to sell such Shares to the other party to the contract or appoint such other
party as its sales agent for such Shares. In either case, the contract shall be
on such terms and conditions as the Trustees may in their discretion determine
to be not inconsistent with the provisions of this Article IV or the By-laws;
and such contract may also provide for the repurchase or sale of Shares by such
other party as principal or as agent of the Trust and may provide that such
other party may enter into selected dealer agreements with registered securities
dealers to further the purpose of the distribution or repurchase of the Shares.
The Trustees may adopt a Distribution Plan or related plan pursuant to Rule
12b-1 of the 1940 Act and may authorize the Trust to make payments from its
assets pursuant to such Plan.
4.3. PARTIES TO CONTRACT. Any contract of the character described in
Sections 4.1 and 4.2 of this Article IV or in Article VII hereof may be entered
into with any corporation, firm, trust or association, although one or more of
the Trustees or officers of the Trust may be an officer, director, Trustee,
shareholder or member of such other party to the contract, and no such contract
shall be invalidated or rendered voidable by reason of the existence of any such
relationship, nor shall any person holding such relationship be liable merely by
reason of such relationship for any loss or expense to the Trust under or by
reason of said contract or accountable for any profit realized directly or
indirectly therefrom. The same person (including a firm, corporation, trust or
association) may be the other party to contracts entered into pursuant to
Sections 4.1 and 4.2 above or Article VII, and any individual may be financially
interested or otherwise affiliated with persons who are parties to any or all of
the contracts mentioned in this Section 4.3.
4.4. PROVISIONS AND AMENDMENTS. Any contract entered into pursuant to
Sections 4.1 and 4.2 of this Article IV shall be consistent with and subject to
the requirements of Section 15 of the 1940 Act with respect to its continuance
in effect, its termination, and the method of authorization and approval of such
contract or renewal thereof, and no amendment to any contract entered into
pursuant to Section 4.1 shall be effective unless consented to by a Majority
Shareholder Vote of the applicable Series if required by law.
ARTICLE V
LIMITATIONS OF LIABILITY OF SHAREHOLDERS, TRUSTEES AND OTHERS
5.1. TRUSTEES, SHAREHOLDERS, ETC. Not Personally Liable; Notice. All
persons extending credit to, contracting with or having any claim against the
Trust shall look only to the assets of the Series or Class with which such
person dealt for payment under such credit, contract or claim; and neither the
Shareholders of any Series or Class nor the Trustees, nor any of the Trust's
officers, employees or agents, whether past, present or future, nor any other
Series shall be personally liable therefore. Every note, bond, contract,
instrument, certificate or undertaking and every other act or thing whatsoever
executed or done by or on behalf of the Trust, any Series or Class thereof, or
the Trustees or any of them in connection with the Trust shall be conclusively
deemed to have been executed or done only by or for the Trust (or the Series or
Class) or the Trustees and not personally. Nothing in this Declaration shall
protect any Trustee or officer against any liability to the Trust or the
Shareholders to which such Trustee or officer would otherwise be subject by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of the office of Trustee or of such
officer.
Every note, bond, contract, instrument, certificate, share or undertaking
made or issued by the Trustees or by any officers or officer shall give notice
that this Declaration 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 Series or Class 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.
5.2. TRUSTEE'S GOOD FAITH ACTION; EXPERT ADVICE; NO BOND OR SURETY.
The exercise by the Trustees of their powers and discretion hereunder shall be
binding upon everyone interested. A Trustee shall be liable for his 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, (a) the Trustees shall not be responsible or liable in any
event for any neglect or wrongdoing of any officer, agent, employee, consultant,
adviser, administrator, distributor or principal underwriter, custodian or
transfer, dividend disbursing, Shareholder servicing or accounting agent of the
Trust, nor shall any Trustee be responsible for the act or omission of any other
Trustee; (b) the Trustees may take advice of counsel or other experts with
respect to the meaning and operation of this Declaration 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 (c) in discharging
their duties, the Trustees, when acting in good faith, shall be entitled to rely
upon the books of account of the Trust and upon written reports made to the
Trustees by any officer appointed by them, any independent public accountant,
and (with respect to the subject matter of the contract involved) any officer,
partner or responsible employee of any adviser, administrator, manager,
distributor, selected dealer, appraiser or other expert, consultant or agent.
The Trustees as such shall not be required to give any bond or surety or any
other security for the performance of their duties.
5.3. INDEMNIFICATION OF SHAREHOLDERS. In case any Shareholder (or
former Shareholder) of any Series 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 Shareholder's acts
or omissions or for some other reason, said Series (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 his
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 said Series' estate to be held
harmless from and indemnified against all loss and expense arising from such
liability.
5.4. INDEMNIFICATION OF TRUSTEES, OFFICERS, ETC. The Trust shall
indemnify (from the assets of the Series or Series in question or, if
appropriate and permitted, from the assets of a Class or Classes) each of its
Trustees and officers (including persons who serve at the Trust's request as
directors, officers or trustees of another organization in which the Trust has
any interest as a shareholder, creditor or otherwise) [hereinafter referred to
as a "Covered Person"] against all liabilities, 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 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 person to
be indemnified was not liable by reason of Disabling Conduct, (ii) dismissal of
a court action or 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 Series or Class in question 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 the Series or Class
in question if it in ultimately determined that indemnification of such expenses
is not authorized under this Article V 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 who are not a party to the proceeding, 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.
5.5. COMPROMISE PAYMENT. As to any matter disposed of by a compromise
payment by any such Covered Person referred to in Section 5.4, 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 (a) by a majority of the disinterested Trustees who are not parties to
the proceeding or (b) by an independent legal counsel in a written opinion.
Approval by the Trustees pursuant to clause (a) or by independent legal counsel
pursuant to clause (b) shall not prevent the recovery from any Covered Person of
any amount paid to such Covered Person in accordance with any 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.
5.6. INDEMNIFICATION NOT EXCLUSIVE, ETC. The right of indemnification
provided by this Article V shall not be exclusive of or affect any other rights
to which any such Covered Person may be entitled. As used in this Article V,
"Covered Person" shall include such person's heirs, executors and
administrators; "interested Covered Person" is one against whom the action, suit
or other proceeding in question or another action, suit or other proceeding on
the same or similar grounds is then or has been pending or threatened, and a
"disinterested" person is a person against whom none of such actions, suits or
other proceedings or another action, suit or other proceeding on the same or
similar grounds is then or has been pending or threatened. Nothing contained in
this Article 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.
5.7. 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 VI
SHARES OF BENEFICIAL INTEREST
6.1. BENEFICIAL INTEREST. The interest of the beneficiaries hereunder
shall be divided into transferable shares of beneficial interest with par value
$.001 per share. The number of such shares of beneficial interest authorized
hereunder is unlimited. All Shares issued hereunder including, without
limitation, Shares issued in connection with a dividend in Shares or a split of
Shares, shall be fully paid and non-assessable.
6.2. SERIES DESIGNATION. The Trustees, in their discretion from time
to time, may authorize the division of Shares into one or more Series, each such
Series relating to a separate portfolio of investments.
The Series that have been established and designated as of the date first
above written are as follows:
Equity Income Series (formerly, Multiple Allocation Series)
Fully Managed Series
Limited Maturity Bond Series
Hard Assets Series
Real Estate Series
Liquid Asset Series
Capital Appreciation Series
Xxx Xxxxxx Growth and Income Series (formerly,
Rising Dividends Series)
Value Equity Series
Strategic Equity Series
Capital Guardian Small Cap Series (formerly, Small Cap Series)
Mid-Cap Growth Series
Total Return Series
Research Series
Capital Growth Series (formerly, Growth & Income Series)
Growth Series (formerly, Value + Growth Series)
Core Bond Series (formerly, Global Fixed Income Series)
Developing World Series
International Equity Series
Investors Series
Diversified Mid-Cap Series
Asset Allocation Growth Series
Special Situations Series
Janus Growth and Income Series (formerly, Growth
and Income Series)
Internet TollkeeperSM Series
High Yield Series
Managed Global Series
All Cap Series
Large Cap Value Series
Fundamental Growth Focus Series
Focus Value Series
Global Franchise Series
Equity Growth Series
X.X. Xxxxxx Xxxxxxx Xxxxx Small Cap Equity Series
International Enhanced EAFE Series
Fund For Life Series
Different Series may be established and designated and variations in the
relative rights and preferences as between the different Series shall be fixed
and determined by the Trustees; provided that all Shares shall be identical
except as provided for by Section 6.3 and except that there may be variations
between different Series as to investment policies, securities portfolios,
purchase price, determination of net asset value, the price, terms and manner of
redemption, special and relative rights as to dividends and on liquidation,
conversion rights, and conditions under which the several Series shall have
separate voting rights.
The following provisions shall be applicable to all Series:
(a) The number of Shares of each Series that may be issued shall be
unlimited. The Trustees may classify or reclassify any unissued Shares
or any Shares previously issued and required of any Series into one or
more Series that may be established and designated from time to time.
The Trustees may hold as treasury Shares (of the same or some other
Series), reissue for such consideration and on such terms as they may
determine, or cancel any Shares of any Series reacquired by the Trust
at their discretion from time to time.
(b) The power of the Trustees to invest and reinvest the Trust Property of
each Series that has been or that may be established shall be governed
by Section 3.2 of this Declaration.
(c) 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, 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 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. 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, the Trustees shall allocate them among any one
or more of the Series established and designated from time to time in
such manner and on such basis as they, in their sole discretion, deem
fair and equitable. Each such allocation by the Trustees shall be
conclusive and binding upon the Shareholders of all Series for all
purposes.
(d) The assets belonging to each particular Series shall be charged with
the liabilities of the Trust in respect of that Series and all
expenses, costs, charges and reserves attributable to that Series, and
any general liabilities, expenses, costs, charges or reserves of the
Trust which are not readily identifiable as belonging to any
particular Series shall be allocated and charged by the Trustees to
and among any one or more of the Series 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. Each allocation of
liabilities, expenses, costs, charges and reserves
by the Trustees shall be conclusive and binding upon the holders of
all Series for all purposes. 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.
(e) The power of the Trustees to pay dividends and make distributions with
respect to any one or more Series shall be governed by Section 9.2 of
this Trust. Dividends and distributions on Shares of a particular
Series 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 holders of Shares of that Series, from such of
the income and capital gains, accrued liabilities belonging to that
Series. All dividends and distributions on Shares of a particular
Series shall be distributed pro rata to the holders of that Series in
proportion to the number of Shares of that Series held by such holders
at the date and time of record established for the payment of such
dividends or distributions.
(f) The establishment and designation of any Series of Shares shall be
effected by resolution of a majority of the Board of Trustees. Upon
such establishment and designation of any new Series, an officer of
the Trust shall reduce any such resolution to writing, certify to the
contents of the resolution, and file with the Commonwealth of
Massachusetts an appropriate notification of such newly established
and designated Series. The failure to file a notification regarding
the establishment and designation of any Series with the Commonwealth
of Massachusetts shall not affect the validity of the establishment
and designation of such Series.
6.3. CLASS DESIGNATION. The Trustees, in their discretion, may
authorize the division of the Shares of any Series of the Trust into two or more
Classes, and the different Classes shall be established and designated, and the
variations in the relative rights and preferences as between the different
Classes shall be fixed and determined, by the Trustees; provided, that all
Shares of a particular Class of any Series shall be identical to all other
Shares of the same Series as the case may be, except that there may be
variations between different Classes as to distribution and service arrangements
and related expenses, allocation of expenses, rights of redemption, special and
relative rights as to dividends and on liquidation, conversion rights, and
conditions under which the several classes shall have separate voting rights.
If the Trustees shall divide the Shares of any Series into two or more
Classes, the following provisions shall be applicable.
(a) All provisions herein relating to the Trust, or any Series of the
Trust, shall apply equally to each Class of Shares of the Trust or of
any Series of the Trust, except as the context requires otherwise.
(b) The number of Shares of each Class that may be issued shall be
unlimited. The Trustees may classify or reclassify any Shares or any
Series of any Shares into one or more Classes that may be established
and designated from time to time. The Trustees may hold as treasury
Shares (of the same or some other Class), reissue for such
consideration and on such terms as they may determine, or cancel any
Shares of any Class reacquired by the Trust at their discretion from
time to time.
(c) Liabilities, expenses, costs, charges and reserves related to the
distribution of, and other identified expenses that should properly be
allocated to, the Shares of a particular Class may be charged to and
borne solely by such Class and the bearing of expenses solely by a
Class of Shares may be appropriately reflected (in a manner determined
by the Trustees) and cause differences in the net asset value
attributable to, and the dividend, redemption and liquidation rights
of, the Shares of different classes. Each allocation of liabilities,
expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the Shareholders of all Classes for all
purposes.
(d) The establishment and designation of any new Class of Shares shall be
effected by a resolution of the Board of Trustees. Upon such
establishment and designation of any new Class, an officer of the
Trust shall reduce any such resolution to writing, certify to the
content of the resolution, and file with the Commonwealth of
Massachusetts an appropriate notification of such newly established
and designated Class. The failure to file a notification regarding the
establishment and designation of any Class with the Commonwealth of
Massachusetts shall not affect the validity of the establishment and
designation of such Class.
6.4. RIGHTS OF SHAREHOLDERS. The ownership of the Trust Property of
every description and the right to conduct any business herein before described
are vested exclusively in the Trustees, and the Shareholders shall have no
interest therein other than the beneficial interest conferred by their Shares
with respect to a particular Series, and they shall have no right to call for
any partition or division of any property, profits, rights or interests of the
Trust nor can they be called upon to share or assume any losses of the Trust, or
suffer an assessment of any kind by virtue of their ownership of Shares. The
Shares shall be personal property giving only the rights in this Declaration
specifically set forth. The Shares shall not entitle the holder to preference,
preemptive, appraisal, conversion or exchange rights (except for rights to
exchange Shares of one Series for Shares of another Series as set forth in the
Prospectus).
6.5. 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 Declaration shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
6.6. ISSUANCE OF SHARES. The Trustees, in their discretion, may from
time to time without a vote of the Shareholders issue Shares with respect to any
Series or Class that may have been established and designated pursuant to
Section 6.2. and Section 6.3., respectively, in addition to the then issued and
outstanding Shares and Shares held in the treasury, to such party or parties and
for such amount not less than the then current net asset value of said Shares
and type of consideration, including cash or property, at such time or times and
on such terms as the Trustee may deem best, and may in such manner acquire other
assets (including the acquisition of assets subject to, and in connection with
the assumption of, liabilities) and businesses. In connection with any issuance
of Shares, the Trustees may issue 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
such Series of the Trust. Contributions to the Trust may be accepted for, and
Shares shall be redeemed as, whole Shares and/or 1/1,000ths of a Share or
multiples thereof.
6.7. REGISTER OF SHARES. A register shall be kept at the Trust or the
offices of any transfer agent duly appointed by the Trustees under the direction
of the Trustees which shall contain the names and addresses of the Shareholders
and the number of Shares (with respect to each Series that may have been
established) held by them respectively and a record of all transfers thereof.
Separate registers shall be established and maintained for each Series and Class
of the Trust. Each such register shall be conclusive as to who are the holders
of the Shares of the applicable Series and Classes thereof, and who shall be
entitled to receive dividends or distributions or otherwise to exercise or enjoy
the rights of Shareholders. No Shareholder shall be entitled to receive payment
of any dividend or distribution, nor to have notice given to him as herein
provided, until he has given his address to a transfer agent or such other
officer or agent of the Trustees as shall keep the register for entry thereon.
The Trust shall not be required to issue certificates for the Shares; however,
the Trustees, in their discretion, may authorize the issuance of share
certificates and promulgate appropriate rules and regulations as to their use.
6.8. TRANSFER AGENT AND REGISTRAR. The Trustees shall have power to
employ a transfer agent or transfer agents, and a registrar or registrars, with
respect to each Class of Shares of the various Series. The transfer agent may
keep the applicable register and record therein the original issues and
transfers, if any, of the said Shares of the applicable Series. Any such
transfer agent and registrar shall perform the duties usually performed by
transfer agents and registrars of certificates of stock in a corporation, except
as modified by the Trustees.
6.9. TRANSFER OF SHARES. Shares shall be transferable on the records
of the Trust only by the record holder thereof or by his agent thereto duly
authorized in writing, upon delivery to the Trustees or a transfer agent of the
Trust of a duly executed instrument of transfer, together with such evidence of
the genuineness of each such execution and authorization and of other matters as
may reasonably be required. Upon such delivery, the transfer shall be recorded
on the applicable register of the Trust. Until such record is made, the
Shareholder of record shall be deemed to be the holder of such Shares for all
purposes hereof and neither the Trustees nor any transfer agent or registrar nor
any officer, employee or agent of the Trust shall be affected by any notice of
the proposed transfer.
Any person becoming entitled to any Shares in consequence of the death,
bankruptcy or incompetence of any Shareholder, or otherwise by operation of law,
shall be recorded on the applicable register of Shares as the holder of such
Shares upon production of the proper evidence thereof to the Trustees or a
transfer agent of the Trust, but until such record is made, the Shareholder of
record shall be deemed to be the holder of such Shares for all purposes hereof
and neither the Trustees nor any transfer agent or registrar nor any officer or
agent of the Trust shall be affected by any notice of such death bankruptcy or
incompetence, or other operation of law.
6.10. NOTICE. Any and all notices to which any Shareholder hereunder
may be entitled and any and all communications shall be deemed duly served or
given if mailed, postage prepaid, addressed to any Shareholder of record at his
last known address as recorded on the applicable register of the Trust.
ARTICLE VII
CUSTODIANS
7.1. APPOINTMENT AND DUTIES. The Trustees shall at all times employ,
as custodian with respect to each Series of the Trust, a custodian or
custodians, each of which shall meet the qualifications for custodians for
portfolio securities of investment companies contained in the 1940 Act. It is
contemplated that separate custodians may be employed for the different Series
of the Trust. Any custodian, acting with respect to one or more Series, shall
have authority as agent of the Trust or the Series with respect to which it is
acting, but subject to such restrictions, limitations and other requirements, if
any, as may be contained in the By-laws of the Trust and the 1940 Act:
(1) to hold the securities owned by the Trust or the Series and
deliver the same upon written order;
(2) to receive any receipt for any monies due to the Trust or the
Series and deposit the same in its own banking department (if a
bank) or elsewhere as the Trustees may direct;
(3) to disburse such funds upon orders or vouchers;
(4) if authorized by the Trustees, to keep the books and accounts of
the Trust or the Series and furnish clerical and accounting
services; and
(5) if authorized to do so by the Trustees, to compute the net income
and the value of the net assets of the Trust or the Series; all
upon such basis of
compensation as may be agreed upon between the Trustees and the
custodian. If so directed by a Majority Shareholder Vote of the
Series with respect to which the custodian is acting, the
custodian shall deliver and pay over all property of the Trust
held by it as specified in such vote.
The Trustees may also authorize each custodian to employ one or more
sub-custodians from time to time to perform such of the acts and services of the
custodian and upon such terms and conditions, as may be agreed upon between the
custodian and such sub-custodian, provided that in every case such sub-custodian
shall meet the qualifications for custodians contained in the 1940 Act.
7.2. ACTION UPON TERMINATION OF CUSTODIAN AGREEMENT. Upon termination
of any custodian agreement with respect to any Series or inability of any
custodian to continue to serve, the Trustees shall promptly appoint a successor
custodian or take such other action as the Trustees deem appropriate. If so
directed by vote of the holders of a majority of the Shares of such Series
outstanding and entitled to vote, the custodian shall deliver and pay over all
Trust Property held by it as specified in such vote.
7.3. CENTRAL CERTIFICATE SYSTEM. Subject to such rules, regulations
and orders as the Commission may adopt or issue, the Trustees may direct the
custodian to deposit all or any part of the securities owned by the Trust or the
Series in a system for the central handling of securities established by a
national securities exchange or a national securities association registered
with the Commission under the Securities Exchange Act of 1934, or such other
person as may be permitted by the Commission, or otherwise in accordance with
the 1940 Act, pursuant to which system all securities of any particular class or
series of any issuer deposited within the system are treated as fungible and may
be transferred or pledged by bookkeeping entry without physical delivery of such
securities, provided that all such deposits shall be subject to withdrawal only
upon the order of the Trust.
7.4. ACCEPTANCE OF RECEIPTS IN LIEU OF CERTIFICATES. Subject to such
rules, regulations and orders as the Commission may adopt, the Trustees may
direct the custodian to accept written receipts or other written evidences
indicating purchases of securities held in book-entry form in the Federal
Reserve System in accordance with regulations promulgated by the Board of
Governors of the Federal Reserve System and the local Federal Reserve Banks in
lieu of receipt of certificates representing such securities.
ARTICLE VIII
REDEMPTION
8.1. REDEMPTIONS. All outstanding Shares of any Class of any Series of
the Trust may be redeemed at the option of the holders thereof, upon and subject
to the terms and conditions provided in this Article VIII. The Trust shall, upon
application of any Shareholder or pursuant to authorization from any Shareholder
of a particular Series, redeem or repurchase from such Shareholder outstanding
Shares of such Series at the net asset value of such Shares as provided in the
1940 Act. If so authorized by the Trustees, the Trust may, at any time and from
time to time, charge fees or deferred sales charges for effecting such
redemption, at such rates an the Trustees may establish, as and to the extent
permitted under the 1940 Act, and may, at any time and from time to time,
pursuant to such Act, suspend such right of redemption. The procedures for
effecting redemption shall be as set forth in the Prospectus with respect to the
applicable Series, as such Prospectus may be amended from time to time.
8.2. REDEMPTIONS OF ACCOUNTS OF LESS THAN A MINIMUM DOLLAR AMOUNT. The
Trustees shall have the power to redeem shares at a redemption price determined
in accordance with Section 8.1 if at any time the total investment in such
account does not have a minimum dollar value determined from time to time by the
Trustees in their sole discretion; provided, however, that the Trustees may
exercise such power with respect to Shares of any Series or Class of any Series
only to the extent the Prospectus describes such power with respect to such
Series or Class of such Series. In the event the Trustees determine to exercise
their power to redeem Shares provided in this Section 8.2, Shareholders shall be
notified that the value of their account is less than the then effective minimum
dollar amount and allowed 60 days to make an additional investment before
redemption in processed.
ARTICLE IX
DETERMINATION OF NET ASSET VALUE, NET INCOME AND DISTRIBUTIONS
9.1. NET ASSET VALUE. The net asset value of each outstanding Share of
each Series of the Trust shall be determined with respect to each Series at such
time or times on such days as the Trustees may determine, in accordance with the
1940 Act. The method of determination of the net asset value shall be determined
by the Trustees and shall be set forth in the Prospectus with respect to the
applicable Series. The power and duty to make the daily calculations for any
Series may be delegated by the Trustees to the adviser, administrator, manager,
custodian, transfer agent or such other person as the Trustees may determine.
The Trustees may suspend the daily determination of net asset value to the
extent permitted by the 0000 Xxx.
9.2. DISTRIBUTIONS TO SHAREHOLDERS. The Trustees from time to time
shall distribute ratably among the Shareholders of the Trust or a Series such
proportion of the net profits, surplus (including paid-in surplus), capital, or
assets of the Trust or such Series held by the Trustees as they may deem proper.
Such distributions may be made in cash or property (including without limitation
any type of obligations of the Trust or such Series or any assets thereof), and
the Trustees may distribute ratably among the Shareholders additional Shares of
the Trust or such Series issuable hereunder in such manner, at such times, and
on such terms as the Trustees may deem proper. The Trustees may retain and not
reinvest from the net profits such amounts as they may deem necessary to pay the
debts or expenses of the Trust or to meet obligations of the Trust, or as they
may deem desirable to use in the conduct of its affairs or to retain for future
requirements or extensions of the business.
9.3. POWER TO MODIFY FOREGOING PROCEDURES. Notwithstanding any of the
foregoing provisions of this Article IX, the Trustees may prescribe, in their
absolute discretion, such other bases and times for determining the per share
net asset value of the Trust's Shares or net income, or the declaration and
payment of dividends and distributions as they may deem necessary or desirable
to enable the Trust to comply with any provision of the 1940 Act, or any
securities association registered under the Securities Exchange Act of 1934, or
any order of exemption issued by said Commission, all as in effect now or
hereafter amended or modified.
ARTICLE X
SHAREHOLDERS
10.1. VOTING POWERS. The Shareholders shall have the power to vote (i)
for the election of Trustees as provided in Article II, Section 2.2; (ii) for
the removal of Trustees as provided in Article II, Section 2.3(d); (iii) with
respect to any investment adviser as provided in Article IV, Section 4.1; (iv)
with respect to the merger, consolidation and sale of assets of the Trust as
provided in Article XI, Section 11.3; (v) with respect to the amendment of this
Declaration as provided in Article XI, Section 11.4; (vi) to the same extent as
the Shareholders of a Massachusetts business corporation as to whether or not a
court action, proceeding or claim should be brought or maintained derivatively
or as a class action on behalf of the Trust or any Series or Class thereof or
the Shareholders (provided, however, that a shareholder of a particular Series
or Class shall not be entitled to a derivative or class action on behalf of any
other Series or Class (or shareholders of any other Series) of the Trust); and
(vii) with respect to such additional matters relating to the Trust as may be
required by law, by this Declaration, or the By-laws of the Trust or any
regulation of the Trust, by the Commission or any State, or as the Trustees may
consider desirable. Any matter affecting a particular Series, or Class including
without limitation, matters affecting the investment advisory arrangements or
investment policies or restrictions of a Series, if required by law, shall not
be deemed to have been effectively acted upon unless approved by the required
vote of the Shareholders of such Series or Class if required by law. Unless
otherwise required by law, 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. Until Shares are issued, the
Trustees may exercise all rights of Shareholders and may take any action to be
taken by Shareholders which is required or permitted by law, this Declaration or
any By-laws of the Trust.
10.2. MEETINGS. Shareholder meetings shall be held as specified in
Article I of the By-laws and in Section 2.2 hereof at the principal office of
the Trust or at such other place as the Trustees may designate. No annual or
regular meetings of shareholders are required. Meetings of the Shareholders may
be called by the Trustees and shall be held at such times, on such day and at
such hour as the Trustees may from time to time determine, for the purposes
specified in Section 2.2 and for such other purposes as may be specified by the
Trustees.
10.3. QUORUM AND REQUIRED VOTE. Except as otherwise provided by law,
the holders of thirty percent of the outstanding Shares of each Series or Class
present in person or by proxy shall constitute a quorum for the transaction of
any business at any meeting of Shareholders. If a quorum, as above defined,
shall not be present for the purpose of any vote that may properly come before
the meeting, the Shareholders present in person or by proxy and entitled to vote
at such meeting on such matter holding a majority of the Shares present entitled
to vote on such matter may by vote adjourn the meeting from time to time to be
held at the same place without further notice than by announcement to be given
at the meeting until a quorum, as above defined, entitled to vote an such matter
shall be present, whereupon any such matter may be voted upon at the meeting as
though held when originally convened. Subject to any applicable requirement of
law, this Declaration or the By-laws, a plurality of the votes cast shall elect
a Trustee and all other matters shall be decided by a majority of the votes cast
entitled to vote thereon.
10.4. RECORD DATE FOR MEETINGS. For the purpose of determining the
shareholders who are entitled to notice of and to vote at any meeting, or to
participate in any 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 30 days, as the Trustees may determine; or without closing the
transfer books the Trustees may fix a date not more than 180 days prior to the
date of any meeting of Shareholders or declaration of dividends or other action
as a record date for the determination of the persons to be treated as
Shareholders of record for such purposes, except for dividend payments which
shall be governed by Section 9.2 hereof.
10.5. PROXIES. Any vote by a Shareholder of the Trust may be made in
person or by proxy. Pursuant to a resolution of a majority of the Trustees,
proxies may be solicited in the name of one or more Trustees or one or more
officers of the Trust or other persons designated by the Trustees. Only
Shareholders of record shall be entitled to vote, but this shall not prevent a
Shareholder of record from seeking voting instructions from persons having a
beneficial interest in the Trust's shares. 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. 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.
10.6. ADDITIONAL PROVISIONS. The By-laws may include further provisions
for Shareholders' votes, meetings and related matters.
10.7. REPORTS. The Trustees shall cause to be prepared with respect to
each Series and, to the extent deemed appropriate by the Trustees or an officer
of the Trust, each Class at least annually a report of operations containing a
balance sheet and statement of income and undistributed income of the applicable
Series (and Class) of the Trust prepared in conformity with generally accepted
accounting principles and an opinion of an independent public accountant on such
financial statements. It is contemplated that separate reports may be prepared
for the various Series and, to the extent deemed appropriate by the Trustees or
an officer of the Trust, Classes. Copies of such reports shall be mailed to all
Shareholders of record of the applicable Series and Classes within the time
required by the 1940 Act. The Trustees shall, in addition, furnish to the
Shareholders such other reports as required by applicable law or deemed
appropriate by the Trustees.
10.8. SHAREHOLDER ACTION BY WRITTEN CONSENT. Any action which may be
taken by Shareholders may be taken without a meeting if a majority of
Shareholders of each Series or Class, as the circumstance may require, entitled
to vote on the matter (or such larger proportion thereof as shall be required by
any express provision of this Declaration) consent to the action in writing and
the 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.
ARTICLE XI
DURATION; TERMINATION OF TRUST; AMENDMENT; MERGERS; ETC.
11.1. DURATION. Subject to the provisions of Sections 11.2 and 11.3
hereof, this Trust shall continue without limitation of time.
11.2. TERMINATION.
(a) The Trust, or any Series or Class thereof, may be terminated by the
affirmative vote of a majority of the Trustees. Upon the termination
of the Trust or any Series or Class:
(i) the Trust or such Series or Class shall carry on no business
except for the purpose of winding up its affairs;
(ii) the Trustees shall proceed to wind up the affairs of the Trust
or such Series or Class and all of the powers of the Trustees
under this Declaration shall continue until the affairs of the
Trust or such Series or Class shall have been wound up,
including the power to fulfill or discharge the contracts of the
Trust or such series, collect its assets, sell, convey, assign,
exchange, transfer or otherwise dispose of all or any part of
the remaining Trust Property to one or more persons at public or
private sale for consideration which may consist in whole or in
part of cash, securities or other property of any kind,
discharge or pay its liabilities, and do all other acts
appropriate to liquidate its business; provided that any sale,
conveyance, assignment, exchanger transfer or other disposition
of all or substantially all the Trust Property shall require
approval of the principal terms of the transaction and the
nature and amount of the consideration by vote or consent of the
holders of a majority of the Shares entitled to vote; and
(iii) after payment or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities and
refunding agreements as they deem necessary for their
protection, the Trustees may distribute the remaining Trust
Property of any Series or Class, in cash or in kind or partly
each, among the Shareholders of such Series or Class according
to their respective rights.
(b) After termination of the Trust or any Series or Class and distribution
to the Shareholders as herein provided, a majority of the Trustees
shall execute and lodge among the records of the Trust an instrument
in writing setting forth the fact of such termination. Upon
termination of the Trust, the Trustees shall thereupon be discharged
from all further liabilities and duties hereunder, and the rights and
interests of all Shareholders shall thereupon cease. Upon termination
of any Series or Class, the Trustees thereunder shall be discharged
from any further liabilities and duties with respect to such Series or
Class, and the rights and interests of all Shareholders of such Series
or Class shall thereupon cease.
11.3. REORGANIZATION. The Trustees may sell, convey, merge and transfer
the assets of the Trust, or the assets belonging to any one or more Series, to
another trust, partnership, association or corporation organized under the laws
of any state of the United States, or to the Trust to be held as assets
belonging to another Series of the Trust, in exchange for cash, shares or other
securities (including, in the case of a transfer to another Series of the Trust,
Shares of such other Series) with such transfer either (1) being made subject
to, or with the assumption by the transferee of, the liabilities belonging to
each Series the assets of which are so transferred, or (2) not being made
subject to, or not with the assumption of, any or all such liabilities;
provided, however, that no assets belonging to any particular Series shall be so
transferred unless the terms of such transfer shall have first been approved at
a meeting called for the purpose by a Majority Shareholder Vote of that Series.
Following such transfer, the Trustees shall distribute such cash, shares or
other securities (giving due effect to the assets and
liabilities belonging to and any other differences among the various Series the
assets belonging to which have so been transferred) among the Shareholders of
the Series the assets belonging to which have been so transferred; and if all of
the assets of the Trust have been so transferred, the Trust shall be terminated.
The Trust, or any one or more Series, may either as the successor,
survivor, or non-survivor, (1) consolidate with one or more other trusts,
partnerships, associations or corporations organized under the laws of the
Commonwealth of Massachusetts or any other state of the United States, to form a
new consolidated trust, partnership, association, or corporation under the laws
of which any one of the constituent entities is organized, or (2) merge into one
or more other trusts, partnerships, associations or corporations organized under
the laws of the Commonwealth of Massachusetts of any other state of the United
States, or have one or more such trusts, partnerships, associations or
corporations merged into it, any such consolidation or merger to be upon such
terms and conditions as are specified in an agreement and plan of reorganization
entered into by the Trust, or one or more Series as the case may be, in
connection therewith. Any such consolidation or merger shall require the
approval of a Majority Shareholder Vote of each Series affected thereby. The
terms "merge" or "merger" as used herein shall not include the purchase or
acquisition of any assets of any other trust, partnership, association or
corporation which is an investment company organized under the laws of the
Commonwealth of Massachusetts or any other state of the United States.
Shareholders shall have no right to demand payment for their shares or to
any other rights of dissenting shareholders in the event the Trust or any Series
participates in any transaction which would give rise to appraisal or
dissenters' rights by a shareholder of a corporation organized under Chapter
156B of the General Laws of the Commonwealth of Massachusetts.
11.4. AMENDMENT PROCEDURE. All rights granted to the Shareholders under
this Declaration are granted subject to the reservation of the right to amend
this Declaration as herein provided, except that no amendment shall repeal the
limitations on personal liability of any Shareholder or Trustee or repeal the
prohibition of assessment upon the Shareholders without the express consent of
each Shareholder or Trustee involved. Subject to the foregoing, the provisions
of this Declaration (whether or not related to the rights of Shareholders) may
be amended at any time, so long as such amendment does not materially adversely
affect the rights of any Shareholder with respect to which such amendment is or
purports to be applicable and so long as such amendment is not in contravention
of applicable law, including the 1940 Act, by an instrument in writing signed by
a majority of the then Trustees (or by an officer of the Trust pursuant to the
vote of a majority of such Trustees). Any amendment to this Declaration that
materially adversely affects the rights of Shareholders may be adopted at any
time by an instrument in writing signed by a majority of the then Trustees (or
by an officer of the Trust pursuant to a vote of a majority of such Trustees)
subject to the approval of a majority of the Shares entitled to vote. Subject to
the foregoing, any such amendment shall be effective as provided in the
instrument containing the terms of such amendment or, if there is no provision
therein with respect to effectiveness, upon the execution of such instrument and
of a certificate (which may be a part of such instrument) executed by a Trustee
or officer of the Trust to the effect that such amendment has been duly adopted.
Notwithstanding the foregoing, the Trustees may amend this Declaration
without the vote or consent of Shareholders if they deem it necessary to conform
this Declaration to the requirements of applicable federal or state laws or
regulations or the requirements of the regulated investment company provisions
of the Internal Revenue Code, but the Trustees shall not be liable for failing
so to do. The Trustees may also amend this Declaration without the vote or
consent of Shareholders if they deem it necessary or desirable to change the
name of the Trust or any Series or Class thereof, to supply any omission, or to
cure, correct or supplement any ambiguous, defective or inconsistent provision
hereof.
11.5. INCORPORATION. With the approval of the holders of a majority of
the Shares, the Trustees may cause to be organized or assist in organizing a
corporation or corporations under the laws of any jurisdiction or any other
trust, partnership, association or other organization to take over all of the
Trust Property or to carry on any business in which the Trust shall directly or
indirectly have any interest, and to sell, convey and transfer the Trust
Property to any such corporation, trust, association or organization in exchange
for the shares or securities thereof or otherwise, and to lend money to,
subscribe for the Shares or securities of, and enter into any contracts with any
such corporation, trust, partnership, association or organization, or any
corporation, trust, partnership, association or organization in which the Trust
holds or is about to acquire shares or any other interest. The Trustees may also
cause a merger or consolidation between the Trust or any successor thereto and
any such corporation, trust, partnership, association or other organization if
and to the extent permitted by law, as provided under the law then in effect.
Nothing contained herein 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
selling, conveying or transferring a portion of the Trust Property to such
organizations or entities.
ARTICLE XII
MISCELLANEOUS
12.1. FILING. This Declaration and any amendment hereto shall be filed
in the office of the Secretary of the Commonwealth of Massachusetts and in such
other places as may be required under the laws of Massachusetts and also may be
filed or recorded in such other places as the Trustees deem appropriate. Each
amendment so filed shall be accompanied by a certificate signed and acknowledged
by a Trustee or officer of the Trust stating that such action was duly taken in
a manner provided herein, and unless such amendment or such certificate sets
forth some later time for the effectiveness of such amendment, such amendment
shall be effective as provided in Section 11.4. A restated Declaration,
containing the original Declaration and all amendments theretofore made, 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.
12.2. RESIDENT AGENT. The Trust shall maintain a resident agent in the
Commonwealth of Massachusetts, which agent shall be appointed from time to time
by the Trustees. The Trustees may designate a successor resident agent,
provided, however, that such appointment shall not become effective until
written notice thereof is delivered to the office of the Secretary of the
Commonwealth of Massachusetts.
12.3. GOVERNING LAW. This Declaration is executed by the Trustees and
delivered in the Commonwealth of Massachusetts and with reference to the laws
thereof, and the rights of all parties and the validity and construction of
every provision hereof shall be subject to and construed according to the laws
of said Commonwealth and reference shall be specifically made to the business
corporation law of the Commonwealth of Massachusetts as to the construction of
matters not specifically covered herein or as to which an ambiguity exists but
the reference to said business corporation law is not intended to give the
Trust, Trustees, Shareholders or any other person, any right, power, authority
or responsibility only to or in connection with an entity organized in corporate
form.
12.4. COUNTERPARTS. This Declaration may be simultaneously executed in
several counterparts, each of which shall be deemed to be an original, and such
counterparts, together, shall constitute one and the same instrument, which
shall be sufficiently evidenced by any such original counterpart.
12.5. RELIANCE BY THIRD PARTIES. Any certificate executed by an
individual who, according to the records of the Trust or of any recording office
in which this Declaration may be recorded, appears to be a Trustee hereunder,
certifying to: (a) the number or identity of Trustees or Shareholders; (b) the
name of the Trust, or any Series or any Class thereof; (c) the due authorization
of the execution of any instrument or writing; (d) the form of any vote passed
at a meeting of Trustees or Shareholders; (e) the fact that the number of
Trustees or Shareholders present at any meeting or executing any written
instrument satisfies the requirements of this Declaration; (f) the form of any
By-laws adopted by or the identity of any officers elected by the Trustees; (g)
the existence of any fact or facts which in any manner relate to the affairs of
the Trust, or any Series or any Class thereof; or (h) the establishment of any
Series or any Class, shall be conclusive evidence as to the matters so certified
in favor of any person dealing with the Trustees and their successors.
12.6. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a) The provisions of this Declaration are severable, and if the Trustees
shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the regulated investment
company provisions of the Internal Revenue Code or with other
applicable laws and regulations, the
conflicting provision shall be deemed never to have constituted a part
of this Declaration; provided, however, that such determination shall
not affect any of the remaining provisions of this Declaration or
render invalid or improper any action taken or omitted prior to such
determination.
(b) If any provision of this Declaration shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability
shall attach only to such provision in such jurisdiction and shall not
in any manner affect such provision in any other jurisdiction or any
other provision of this Declaration in any jurisdiction.
IN WITNESS WHEREOF, the undersigned have caused this Amended and Restated
Agreement and Declaration of Trust to be executed as of the day and year first
above written.
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Xxxx X. Xxxxxxx Xxxxx X.X. Xxxxxx
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J. Xxxxxxx Xxxxxx Xxxxxx X. Xxxxx
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R. Xxxxxxx Xxxxxxxxxx R. Xxxxx Xxxxxxxx
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Xxxxxx X. May Xxxx X. Xxxxxx
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Xxxxxx X. XxXxxxxxx Xxxxx X. Xxxxxxx
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Xxxx Xxxxxx Xxxxxxx X. Xxxxxxxxx
