EXHIBIT 1
AGREEMENT AND DECLARATION OF TRUST
OF
XXXXXX MANAGER FUNDS
(amended May 31, 1995)
AGREEMENT AND DECLARATION OF TRUST made at Boston, Massachusetts, this ____ day
of July, 1994, by the Trustees hereunder.
WHEREAS the Trustees desire and have agreed to manage all property
coming into their hands as trustees of a Massachusetts business trust in
accordance with the provisions hereinafter set forth,
NOW, THEREFORE, the Trustees hereby direct that this Agreement and
Declaration of Trust be filed with the Secretary of the Commonwealth of
Massachusetts and do hereby declare that they will hold all cash, securities and
other assets, which they may from time to time acquire in any manner as Trustees
hereunder, IN TRUST, and manage and dispose of the same upon the following terms
and conditions for the pro rata benefit of the holders of Shares in this Trust.
ARTICLE I
NAME AND DEFINITIONS
Section 1. Name. This Trust shall be known as XXXXXX MANAGER FUNDS and
the Trustees shall conduct the business of the Trust under that name or any
other name as they may from time to time determine.
Section 2. Definitions. Whenever used herein, unless otherwise required
by the context or specifically provided:
(a) The "Trust" refers to the Massachusetts business trust established
by this Agreement and Declaration of Trust, as amended from time to time;
(b) "Trustees" refers to the Trustees of the Trust named in Article IV
hereof or elected or appointed in accordance with such Article;
(c) "Shares" means the equal proportionate units of interest into which
the beneficial interest in the Trust property belonging to any and all Series
and Classes of the Trust (as the context may require) shall be divided from time
to time;
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company Act of 1940 and the
Rules and Regulations thereunder, all as amended from time to time;
(f) The term "Commission" shall mean the United States Securities and
Exchange Commission;
(g) "Declaration of Trust" shall mean this Agreement and Declaration of
Trust, as amended or restated from time to time;
(h) "Bylaws" shall mean the Bylaws of the Trust as amended from time to
time;
(i) "Series Company" refers to the form of registered open-end
investment company described in Section 18(f)(2) of the 1940 Act or in any
successor statutory provision; and
(j) "Series" refers to each Series of Shares established and designated
under or in accordance with the provisions of Article III. Present and future
separate "Series" of the Trust may be referred to as "Portfolios" or "Funds" and
these terms may be used alternatively in publications and communications with
investors. Unless the context otherwise requires, the term "Series" shall
include Classes into which Shares of the Trust, or of a Series, may be divided
from time to time.
(k) "Class" means the two or more Classes as may be established and
designated from time to time pursuant to Section 7 hereof.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to provide investors a managed investment
company registered under the 1940 Act consisting of one or more Series that
invest primarily in debt or equity securities.
ARTICLE III
SHARES
Section 1. Division of Beneficial Interest. The beneficial interest in
the Trust shall at all times be divided into an unlimited number of Shares,
without par value. Subject to the provisions of Sections 6 and 7 of this Article
III, each Share shall have voting rights as provided in Article V hereof, and
holders of the Shares of any Series shall be entitled to receive dividends, when
and as declared with respect thereto in the manner provided in Article VI,
Section 1 hereof. No Shares shall have any priority or preference over any other
Share of the same Series with respect to dividends or distributions upon
termination of the Trust or of such Series made pursuant to Article VIII,
Section 4 hereof. All dividends and distributions shall be made ratably among
all Shareholders of a particular Series from the assets belonging to such Series
according to the number of Shares of such Series held of record by each
Shareholder on the record date established for any dividend or on the date of
termination, as the case may be. Shareholders shall have no preemptive or other
right to subscribe to any additional Shares or other securities issued by the
Trust or any Series. The Trustees may from time to time divide or combine the
Shares of any particular Series into a greater or lesser number of Shares of
that Series without thereby changing the proportionate beneficial interest of
the Shares of that Series in the assets belonging to that Series or in any way
affecting the rights of Shares of any other Series.
Section 2. Ownership of Shares. The ownership of Shares shall be
recorded on the books of the Trust or a transfer or similar agent for the Trust,
which books shall be maintained separately for the Shares of each Series. No
certificates certifying the ownership of Shares shall be issued except as the
Trustees may otherwise determine from time to time. The Trustees may make such
rules as they consider appropriate for the transfer of Shares of each Series and
similar matters. The record books of the Trust as kept by the Trust or any
transfer or similar agent, as the case may be, shall be conclusive as to who are
the Shareholders of each Series and as to the number of Shares of each Series
held from time to time by each shareholder.
Section 3. Investments in the Trust. The Trustees may accept
investments in the Trust from such persons, at such times, on such terms, and
for such consideration as they from time to time authorize.
Section 4. Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving only the rights provided
in this Declaration of Trust. Each Shareholder, by virtue of having become a
Shareholder, shall be held to have expressly assented and agreed to the terms
hereof and to have become a party hereto. The death of a Shareholder during the
existence of the Trust shall neither operate to terminate the Trust, nor entitle
the representative of any deceased Shareholder to an accounting or to take any
action in court or elsewhere against the Trust or the Trustees, but entitles
such representative only to the rights of said deceased Shareholder under this
Trust. Ownership of Shares shall not entitle the Shareholder to any title in or
to the whole or any part of the Trust property, other than as specified in this
Declaration of Trust, or right to call for a partition or division of the same,
or for an accounting; nor shall the ownership of Shares constitute the
Shareholders as partners. Neither the Trust nor the Trustees, nor any officer,
employee or agent of the Trust shall have any power to bind personally any
Shareholders, nor, except as specifically provided herein, to call upon any
Shareholder for the payment of any sum of money or assessment whatsoever other
than that which the Shareholder may at any time personally agree to pay.
Section 5. Power of Trustees to Change Provisions Relating to Shares.
Notwithstanding any other provision of this Declaration of Trust and without
limiting the power of the Trustees to amend the Declaration of Trust as provided
elsewhere herein, the Trustees shall have the power to amend this Declaration of
Trust, at any time and from time to time, in such manner as the Trustees may
determine in their sole discretion, without Shareholder approval, to add to,
delete, replace, or otherwise modify any provisions relating to the Shares
issued pursuant to this Declaration of Trust, provided that before adopting any
such amendment without Shareholder approval, the Trustees shall determine that
it is consistent with the fair and equitable treatment of all Shareholders or
that Shareholder approval is not otherwise required by the 1940 Act or other
applicable law.
Without limiting the generality of the foregoing, the Trustees may, for
the above-stated purposes, amend this Declaration of Trust to:
(a) create one or more Series of Shares (in addition to any Series
already existing or otherwise) with such rights and preferences and such
eligibility requirements for investment as the Trustees shall determine, and
reclassify any or all outstanding Shares as shares of particular Series in
accordance with such eligibility requirements;
(b) amend any of the provisions set forth in paragraphs (a) through (i)
of Section 6 and paragraphs (a) through (d) of Section 7 of this Article III;
(c) combine one or more Series of Shares into a single Series on such
terms and conditions as the Trustees shall determine;
(d) change or eliminate requirements for investment in Shares of any
Series, including without limitation, to provide for the issue of Shares of any
Series in connection with any merger or consolidation of the Trust with another
trust or company or any acquisition by the Trust of part or all of the assets of
another trust or investment company;
(e) change the designation of any Series of Shares;
(f) change the method of allocating dividends among the various Series
of Shares;
(g) allocate any specific assets or liabilities of the Trust or any
specific items of income or expense of the Trust to one or more Series of
Shares;
(h) specifically allocate assets to any or all Series of Shares or
create one or more additional Series of Shares which are preferred over all
other Series of Shares in respect of assets specifically allocated thereto or
any dividends paid by the Trust with respect to any net income, however
determined, earned from the investment and reinvestment of any assets so
allocated or otherwise and provide for any special voting or other rights with
respect to such Series.
Section 6. Establishment and Designation of Series. The establishment
and designation of any Series of Shares shall be effective upon the resolution
by a majority of the Trustees, setting forth such establishment and designation
and the relative rights and preferences of such Series, or as otherwise provided
in such resolution.
Shares of each Series established pursuant to this Section 6, unless
otherwise provided in the resolution establishing such Series, shall have the
following relative rights and preferences:
(a) Assets Belonging to Series. All consideration received by the Trust
for the issue or sale of Shares of a particular Series, together with all assets
in which such consideration is invested or reinvested, all income, earnings,
profits, and proceeds thereof from whatever source derived, including, without
limitation, any proceeds derived from the sale, exchange, or liquidation of such
assets, and any funds or payments derived from any reinvestment of such proceeds
in whatever form the same may be, shall irrevocably belong to that Series for
all purposes, subject only to the rights of creditors, shall be so recorded upon
the books of account of the Trust, and are herein referred to as "assets
belonging to" that Series. In the event that there are any assets, income,
earnings, profits and proceeds thereof, funds, or payments that are not readily
identifiable as belonging to any particular Series (collectively "General
Assets"), the Trustees shall allocate such General Assets to, between, or among
any one or more of, the Series in such manner and on such basis as they, in
their sole discretion, deem fair and equitable, and any General Assets so
allocated to a particular Series shall belong to that Series. Each such
allocation by the Trustees shall be conclusive and binding upon the Shareholders
of all Series for all purposes.
(b) Liabilities Belonging to Series. The assets belonging to each
particular Series shall be charged with the liabilities of the Trust with
respect to that Series and all expenses, costs, charges, and reserves
attributable to that Series. Any general liabilities 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 in such
manner and on such basis as the Trustees in their sole discretion deem fair and
equitable. The liabilities, expenses, costs, charges, and reserves so charged to
a Series are herein referred to as "liabilities belonging to" that Series. Each
allocation of liabilities, expenses, costs, charges and reserves by the Trustee
shall be conclusive and binding upon the holders of all Series for all purposes.
Under no circumstances shall the assets allocated or belonging to any particular
Series be charged with liabilities attributable to any other Series. All persons
who have extended credit which has been allocated to particular Series, or who
have a claim or contract which has been allocated to any particular Series,
shall look only to the assets of that particular Series for payment of such
credit, claim, or contract.
(c) Income, Distributions, and Redemptions. The Trustees shall have
full discretion, to the extent consistent 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. Notwithstanding any other provision of this Declaration of Trust,
including, without limitation, Article VI, no dividend or distribution
(including, without limitation, any distribution paid upon termination of the
Trust or of any Series) with respect to, nor any redemption or repurchase of,
the Shares of any Series shall be effected by the Trust other than from the
assets belonging to such Series. Except as specifically provided in Section 7 of
this Article III, no Shareholder of any particular Series shall otherwise have
any right or claim against the assets belonging to any other Series except to
the extent that such Shareholder has such a right or claim hereunder as a
Shareholder of such other Series.
(d) Voting. A Shareholder of each Series shall be entitled to one vote
for each dollar of net asset value of such Series, on any matter on which such
Shareholder is entitled to vote and each fractional dollar amount shall be
entitled to a proportionate fractional vote. All references in this Declaration
of Trust or the Bylaws to a vote of, or the holders of, a percentage of Shares
shall mean a vote of, or the holders of, that percentage of total votes
representing dollars of net asset value of a Series or of the Trust, as the case
may be. The Trustees may from time to time establish conditions according to
which the several Series shall have separate voting rights. If any Series would
not, in the Trustees' sole judgment, be materially affected by a proposal, the
Trustees may determine that such Series shall have no rights to vote on such
proposal. Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required by law, this Declaration of Trust,
or the Bylaws, to be taken by Shareholders. The Bylaws may include further
provisions regarding Shareholder voting, meetings and related matters.
(e) Equality. All the Shares of each particular Series shall represent
an equal proportionate interest in the assets belonging to that Series (subject
to the liabilities belonging to that Series), and each Share of any particular
Series shall be equal to each other Share of that Series.
(f) Fractions. Any fractional Share of a Series shall carry all the
rights and obligations of a whole share of that Series, including rights with
respect to voting, receipt of dividends and distributions, redemption of Shares
and termination of the Trust proportionate to its value in relation to a whole
Share of that Series.
(g) Exchange Privilege. The Trustees shall have the authority to
provide that the holders of Shares of any Series shall have the right to
exchange said Shares for Shares of one or more other Series of Shares in
accordance with such requirements and procedures as may be established by the
Trustees.
(h) Combination of Series. The Trustees shall have the authority,
without the approval of the Shareholders of any Series unless otherwise required
by applicable law, to combine the assets and liabilities belonging to any two or
more Series into assets and liabilities belonging to a single Series.
(i) Elimination of Series. If at any time there are no Shares
outstanding of any particular Series previously established and designated, the
Trustees may eliminate such Series in their sole discretion.
Section 7. Class Designation. The Trustees, in their discretion, may
authorize the division of the Shares of the Trust, or, if any Series be
established, the Shares of any Series, 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 the Trust or of
any Series shall be identical to all other Shares of the Trust or the same
Series, as the case may be, except that there may be variations between
different Classes as to allocation of expenses, right 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.
All references to Shares in this Declaration of Trust shall be deemed to be
Shares of any or all Classes as the context may require.
If the Trustees shall divide the Shares of the Trust or 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 unissued Shares of the
Trust or any Series or any Shares previously issued and reacquired of any Class
of the Trust or of any Series 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 Class of Shares shall be
effective upon the execution of a majority of the Trustees of an instrument
setting forth such establishment and designation and the relative rights and
preferences of such Class, or as otherwise provided in such instrument. The
Trustees may, by an instrument executed by a majority of their number, abolish
any Class and the establishment and designation thereof. Each instrument
referred to in this paragraph shall have the status of an amendment to this
Declaration of Trust.
Section 8. Indemnification of Shareholders. If any Shareholder or
former Shareholder shall be held personally liable solely by reason of his or
her being or having been a Shareholder and not because of his or her acts or
omissions or for some other reasons, the Shareholder or former Shareholder (or
his or her heirs, executors, administrators, or other legal representatives or,
in the case of a corporation or other entity, its corporate or other general
successor) shall be entitled out of the assets of the Series of which he or she
is (or was) a Shareholder, to be held harmless from and indemnified against all
loss and expense arising from such liability.
ARTICLE IV
THE TRUSTEES
Section 1. Number, Election and Tenure. The number of Trustees shall be
such number as shall be fixed from time to time by a written instrument signed
by a majority of the Trustees, provided, however, that the number of Trustees
shall in no event be less than two nor more than fifteen. The initial Trustees
shall be Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxx. The Trustees may, by vote of a
majority of the remaining Trustees, fill vacancies on the Board of Trustees or
remove Trustees with or without cause, by vote of a majority of the Trustees who
are not "interested persons" (as defined in the 0000 Xxx) if the Trustee to be
removed is not an "interested" Trustee, or by vote of the Trustees who are
"interested persons," if the Trustee to be removed is an "interested" Trustee.
Each Trustee shall serve during the lifetime of the Trust until he dies,
resigns, or is removed, or, if sooner, until the next meeting of Shareholders
called for the purpose of electing Trustees and until the election and
qualification of his successor, except, that Trustees who are not "interested
persons" or employees of The Xxxxxx Group of companies shall retire at the end
of the calendar year in which they shall have reached the age of seventy-five
(75) years. Any Trustee may resign at any time by written instrument signed by
him and delivered to any officer of the Trust or to a meeting of the Trustees.
Such resignation shall be effective upon receipt unless otherwise specified in
such written instrument. Except to the extent expressly provided in a written
agreement with the Trust, no Trustee resigning and no Trustee removed shall have
any right to any compensation for any period following his resignation or
removal, or any right to damages on account of such removal. The Shareholders
may fix the number of Trustees and elect Trustees at any meeting of Shareholders
called by the Trustees for that purpose.
Section 2. Effect of Death, Resignation, Etc. of a Trustee. The death,
declination, resignation, retirement, removal, or incapacity of the Trustees, or
any of them, shall not operate to annul the Trust or to revoke any existing
agency created pursuant to the terms of this Declaration of Trust. Whenever a
vacancy on the Board of Trustees shall occur, until such vacancy is filled as
provided in Article IV, Section 1, the Trustees in office, regardless of their
number, shall have all of the powers granted to the Trustees and shall discharge
all the duties imposed upon the Trustees by this Declaration of Trust. A written
instrument certifying the existence of such vacancy signed by a majority of the
Trustees shall be conclusive evidence of such vacancy. In the event of the
death, declination, resignation, retirement, removal, or incapacity of all of
the Trustees within a short period of time and without the opportunity for at
least one Trustee to appoint additional Trustees to fill vacancies, the Trust's
investment advisor or investment advisors jointly, if there is more than one,
are empowered to appoint new Trustees.
Section 3. Powers. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Trustees, and they
shall have all powers necessary or convenient to carry out that responsibility,
including the power to engage in securities transactions of all kinds on behalf
of the Trust. Without limiting the foregoing, the Trustees may adopt Bylaws not
inconsistent with this Declaration of Trust providing for the regulation and
management of the affairs of the Trust and may amend and repeal such Bylaws to
the extent that any amendments do not result in reserving the right to amend
this Declaration of Trust and do not reserve that right to the Shareholders;
they may fill vacancies in or reduce the number of Trustees, and may elect and
remove such officers and appoint and terminate such agents as they consider
appropriate. They may appoint from their own number and establish and terminate
one or more committees consisting of two or more Trustees which may exercise the
powers and authority of the Trustees to the extent that the Trustees determine.
They may employ one or more custodians of the assets of the Trust and may
authorize such custodians to employ subcustodians and to deposit all or any part
of such assets in a system or systems for the central handling of securities or
with a Federal Reserve Bank. They may retain a transfer or shareholder servicing
agent, or both, provide for the distribution of Shares by the Trust, through one
or more principal underwriters or otherwise, set record dates for the
determination of eligible Shareholders with respect to various matters, and, in
general, to delegate such authority as they consider desirable to any officer of
the Trust, to any committee of the Trustees, and to any agent or employee of the
Trust or to any such custodian, transfer or Shareholder servicing agent, or
principal underwriter. Any determination as to what is in the best interest of
the Trust made by the Trustees in good faith shall be conclusive. In construing
the provisions of this Declaration of Trust, the presumption shall be in favor
of a grant of power to the Trustees.
Without limiting the foregoing, the Trustees shall have power and
authority:
(a) To invest and reinvest cash, to hold cast uninvested, and to
subscribe for, invest in, reinvest in, purchase or otherwise acquire, own, hold,
pledge, sell, assign, transfer, exchange, distribute, lend or otherwise deal in
or dispose of contracts for the future acquisition or delivery of fixed income
securities or certificates of deposit or indebtedness, commercial paper,
repurchase agreements, bankers acceptances, and other securities of any kind,
issued, created, guaranteed, or sponsored by any and all persons, including,
without limitation, states, territories, and possessions of the United States
and the District of Columbia and any political subdivision, agency, or
instrumentality of the U.S. Government, any foreign government or any political
subdivision of the U.S. Government or any foreign government, or any
international or supranational instrumentality, or by any bank or savings
institution, or by any corporation or organization organized under the laws of
the United States or of any state, territory, or possession thereof, or by any
corporation or organization organized under any foreign law, or in "when issued"
contracts for any such securities; to change the investments of the assets of
any Series of the Trust; and to exercise any and all rights, powers and
privileges of ownership or interest with respect to any and all such investments
of every kind and description, including, without limitation, the right to
consent and otherwise act with respect thereto, and with power to designate one
or more persons, firms, associations, or corporations to exercise any of said
rights, powers, and privileges with respect to any of said instruments;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, lease, or
write options with respect to or otherwise deal in any property rights relating
to any or all of the assets of the Trust,
(c) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property, and to execute and deliver
proxies or powers of attorney to such person or persons as the Trustees shall
deem proper, granting to such person or persons such power and discretion with
relation to securities or property as the Trustees shall deem proper;
(d) To exercise powers and rights of subscription or otherwise which in
any manner arise out of ownership of securities;
(e) To hold any security or property, whether in bearer, unregistered,
or any other negotiable form, or in its own name or in the name of a custodian
or subcustodian or a nominee or nominees or otherwise;
(f) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security which is
held in the Trust; to consent to any contract, lease, mortgage, purchase or sale
of property by such corporation or issuer; and to pay calls or subscriptions
with respect to any security held in the Trust;
(g) To join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit any
security with, or transfer any security to, any such committee, depositary or
trustee, and to delegate to them such power and authority with relation to any
security (whether or not so deposited or transferred) as the Trustees shall deem
proper, and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Trustees shall deem
proper;
(h) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust or any matter in controversy, including but not limited to
claims for taxes;
(i) To enter into joint ventures, general or limited partnerships and
any other combinations or associations;
(j) To borrow funds or other property;
(k) To endorse or guarantee the payment of any notes or other
obligations of any person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust property such
insurance as they may deem necessary or appropriate for the conduct of the
Trust's business, including, without limitation, insurance policies insuring the
assets of the Trust or payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, investment advisors, principal underwriters, or
independent contractors of the Trust, individually against all claims and
liabilities of every nature arising by reason of holding, being, or having held
any such office or position, or by reason of any action alleged to have been
taken or omitted by any such person as Trustee, officer, employee, agent,
investment advisor, principal underwriter, or independent contractor, including
any action taken or omitted that may be determined to constitute negligence,
whether or not the Trust would have the power to indemnify such person against
liability;
(m) to pay pensions as deemed appropriate by the Trustees and to adopt,
establish and carry out pension, profit-sharing, share bonus, share purchase,
savings, thrift and other retirement, incentive and benefit plans, trusts and
provisions, including the purchasing of life insurance and annuity contracts as
a means of providing such retirement and other benefits, for any or all of the
Trustees, officers, employees, and agents of the Trust; and
(n) notwithstanding any other provision hereof, to invest all of the
assets of any series in a single open-end investment company, including
investment by means of transfer of such assets in exchange for an interest or
interests in such investment company.
The Trustees shall not be limited to investing in obligations maturing
before the possible termination of the Trust. The Trustees shall not in any way
be bound or limited by any present or future law or custom in regard to
investment by fiduciaries. The Trustees shall not be required to obtain any
court order to deal with any assets of the Trust or take any other action
hereunder.
Section 4. Payment of Expenses by the Trust. The Trustees are
authorized to pay or cause to be paid out of the principal or income of the
Trust, or partly out of the principal and partly out of income, as they deem
fair, all expenses, fees, charges, taxes, and liabilities incurred or arising in
connection with the Trust, or in connection with the management thereof,
including, but not limited to, the Trustees' compensation, and such expenses and
charges for the services of the Trust's officers, employees, investment advisor
or manager, principal underwriter, auditors, counsel, custodian, transfer agent,
shareholder servicing agent, and such other agents or independent contractors
and such other expenses and charges as the Trustees may deem necessary or proper
to incur.
Section 5. Payment of Expenses by Shareholders. The Trustees shall have
the power, as frequently as they may determine, to cause each Shareholder, or
each Shareholder of any particular Series, to pay directly, in advance or
arrears, for charges of the Trust's custodian or transfer, shareholder servicing
or similar agent, an amount fixed from time to time by the Trustees, by setting
off such charges due from such Shareholder from declared but unpaid dividends
owed such Shareholder and/or by reducing the number of shares in the account of
such Shareholder by that number of full and/or fractional Shares which
represents the outstanding amount of such charges due from such Shareholder.
Section 6. Ownership of Assets of the Trust. Title to all of the assets
of the Trust shall at all times be considered as vested in the Trustees.
Section 7. Service Contracts.
(a) Subject to such requirements and restrictions as may be set forth
in the Bylaws, the Trustees may, at any time and from time to time, contract for
exclusive or nonexclusive advisory and/or management services for the Trust or
for any Series with Xxxxxx Management Corporation or any other corporation,
trust, association, or other organization (the "Advisor"); and any such contract
may contain such other terms as the Trustees may determine, including without
limitation, authority for the Advisor to determine from time to time without
prior consultation with the Trustees what investments shall be purchased, held,
sold, or exchanged and what portion, if any, of the assets of the Trust shall be
held uninvested, and to make changes in the Trust's investments.
(b) The Trustees may also, at any time and from time to time, contract
with any corporation, trust, association, or other organization, appointing it
exclusive or nonexclusive distributor or principal underwriter for the Shares of
any, some, or all of the Series. Every such contract shall comply with such
requirements and restrictions as may be set forth in the Bylaws; and any such
contract may contain such other terms as the Trustees may determine.
(c) The Trustees are also empowered, at any time and from time to time,
to contract with any corporations, trust, associations, or other organizations,
appointing it or them the transfer agent(s) and/or shareholders servicing
agent(s) of the Trust or one or more of the Series. Specifically, the Trustees
are empowered to contract or join with other investment companies managed by the
Trust's Investment Advisor to have transfer agency and/or shareholder servicing
activities performed jointly by such transfer agents or shareholder servicing
agents and their employees with an appropriate allocation between the investment
companies of the costs and expenses of providing such services. Each such
requirements and restrictions as may be set forth in the Bylaws or stipulated by
resolution of the Trustees.
(d) The fact that:
(i) any of the Shareholders, Trustees, or officers of the
Trust is a shareholder, director, officer, partner, trustee,
employee, manager, advisor, principal underwriter, distributor
or affiliate or agent of or for any corporation, trust,
association, or other organization, or for any parent or
affiliate of any organization with which an advisory or
management contract, or principal underwriter's or
distributor's contract, or transfer, shareholder
servicing or other agency contract may have been or may
hereafter be made, or that any such organization, or any
parent or affiliate thereof, is a Shareholder or has an
interest in the Trust, or that
(ii) any corporation, trust, association or other organization
with which an advisory or management contract or principal
underwriter's or distributor's contract, or transfer,
shareholder servicing or other agency contract may have been
or may hereafter be made also has an advisory or management
contract, or principal underwriter's or distributor's
contract, or transfer, shareholder servicing or other agency
contract with one or more other corporations, trusts,
associations, or other organizations, or has other business or
interests,
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee, or officer of the Trust from voting upon or executing the
same or create any liability or accountability to the Trust or its Shareholders.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND SHAREHOLDER MEETINGS
Section 1. Voting Powers. Subject to the provisions of Article III,
Section 6(d), the Shareholders shall have power to vote only (i) for the
election of Trustees as provided in Article IV, Section 1, (ii) to the same
extent as the stockholders of a California business corporation as to whether or
not a court action, proceeding, or claim should or should not be brought or
maintained derivatively or as a class action on behalf of the Trust or the
Shareholders, (iii) with respect to the termination of the Trust or any Series
to the extent as provided in Article VIII, Section 4, and (iv) with respect to
such additional matters relating to the Trust as may be required by the 1940 Act
or other applicable law, this Declaration of Trust, the Bylaws or any
registration of the Trust with the Commission (or any successor agency) or any
state, or as the Trustees may consider necessary or desirable. On any matter
submitted to a vote of the Shareholders, all Shares shall be voted by individual
Series, except (i) when required by the 1940 Act, Shares shall be voted in the
aggregate and not by individual Series, and (ii) when the Trustees have
determined that the matter affects only the interests of one or more Series,
then only the Shareholders of such Series shall be entitled to vote thereon.
There shall be no cumulative voting in the election of Trustees. Shares may be
voted in person or by proxy. A proxy with respect to Shares held in the name of
two or more persons shall be valid if executed by any one of them, unless at or
prior to exercise of the proxy the Trust receives a specific written notice to
the contrary from any one of them. A proxy purporting to be executed by or on
behalf of a Shareholder shall be deemed valid unless challenged at or prior to
its exercise, and the burden of proving invalidity shall rest on the challenger.
At any time when no Shares of a Series are outstanding, the Trustees may
exercise all rights of Shareholders of that Series with respect to matters
affecting that Series, and may take any action required by law, this Declaration
of Trust, or the Bylaws to be taken by the Shareholders.
Section 2. Shareholder Meetings. Shareholder meetings may be called by
the Trustees for the purpose of electing Trustees as provided in Article IV,
Section 1, and for such other purposes as may be prescribed by law, by this
Declaration of Trust, or by the Bylaws. Shareholder meetings may also be called
by the Trustees from time to time for the purpose of taking action upon any
other matter deemed by the Trustees to be necessary or desirable. A meeting of
Shareholders may be held at any place designated by the Trustees. Written notice
of any meeting of Shareholders shall be given or caused to be given by the
Trustees by mailing such notice at least seven days before such meeting, postage
prepaid, stating the time and place of the meeting, to each Shareholder at the
Shareholder's address as it appears on the records of the Trust. Whenever notice
of a meeting is required to be given to a Shareholder under this Declaration of
Trust or the Bylaws, a written waiver thereof, executed before or after the
meeting by such Shareholder or by his attorney thereunto authorized, and filed
with the records of the meeting, shall be deemed equivalent to such notice.
Section 3. Quorum and Required Vote. Except when a larger quorum is
required by applicable law, by the Bylaws, or by this Declaration of Trust,
forty percent (40%) of the Shares entitled to vote shall constitute a quorum at
a Shareholders' meeting. When any one or more Series is to vote as a single
Class separate from other Shares which are to vote on the same matters, forty
percent (40%) of the Shares of each such Series entitled to vote shall
constitute a quorum at a Shareholder meeting of that Series. Any Shareholder
meeting may be adjourned from time to time by a majority of the votes properly
cast upon the question, whether or not a quorum is present, and the meeting may
be held as adjourned within a reasonable time after the date set for the
original meeting without further notice. Subject to the provisions of Article
III, Section 6(d), when a quorum is present at any meeting, a majority of the
Shares voted shall decide any questions, and a plurality shall elect a Trustee,
except when a larger vote is required by any provision of this Declaration of
Trust, the Bylaws, or applicable law.
Section 4. Action by Written Consent. Any action permitted to be taken
by Shareholders may be taken without a meeting if Shareholders holding a
majority of the Shares entitled to vote on the matter (or such larger proportion
thereof as shall be required by any express provision of this Declaration of
Trust or by the Bylaws) consent to the action in writing, and such written
consents are filed with the records of the Trust. Such consent shall be treated
for all purposes as a vote taken at a meeting of Shareholders.
Section 5. Record Dates. For the purpose of determining the
Shareholders of any Series who are entitled to vote or act at any meeting or any
adjournment thereof, the Trustees may from time to time fix a time, which shall
be not more than 75 days before the date of any meeting of Shareholders, as the
record date for determining the Shareholders of such Series having the right to
notice of and to vote at such meeting and any adjournment thereof. In such case,
only Shareholders of record on such record date shall have such right,
notwithstanding any transfer of shares on the books of the Trust after the
record date. For the purpose of determining the Shareholders of any Series who
are entitled to receive payment of any dividend or of any other distribution,
the Trustees may from time to time fix a date, which shall be before the date
for the payment of such dividend or such other payment, as the record date for
determining the Shareholders of such Series having the right to receive such
dividend or distribution. Without fixing a record date the Trustees may, for
voting and/or distribution purposes, close the register or transfer books for
one or more Series for all or any part of the period between a record date and a
meeting of Shareholders or the payment of a distribution. Nothing in this
section shall be construed as precluding the Trustees from setting different
record dates for different Series.
Section 6. Additional Provisions. Bylaws may include further provisions
concerning Shareholder voting, Shareholder meetings, and related matters.
ARTICLE VI
NET ASSET VALUE, DISTRIBUTIONS AND REDEMPTIONS
Section 1. Determination of Net Asset Value, Net Income and
Distributions. Subject to Article III, Sections 6 and 7 hereof, the Trustees, in
their absolute discretion, as they may deem necessary or desirable, may
prescribe and shall set forth in the Bylaws or in a duly adopted resolution the
manner of determining the net income attributable to the Shares of any Series or
of any Class, and the declaration and payment of dividends and distributions on
the Shares of any Series or Class.
Section 2. Redemptions and Repurchases. The Trust shall purchase such
Shares as are offered by any Shareholder for redemption, upon the presentation
of a proper instrument of transfer together with a request directed to the Trust
or a person designated by the Trust that the Trust purchase such Shares or in
accordance with such other procedures for redemption as the Trustees may from
time to time authorize, and the Trust will pay therefor the net asset value
thereof, as determined in accordance with the 1940 Act, and with any other
applicable provisions of law or of the Bylaws. Payment for said Shares shall be
made by the Trust to the Shareholder within seven days after the date on which
the request is made in proper form. The obligation set forth in this Section 2
may be suspended or postponed by the Trustees in the event that any time the New
York Stock Exchange is closed for other than weekends or holidays, or if
permitted by the rules of the Commission, during periods when trading on the
Exchange is restricted or during any emergency which makes it impracticable for
the Trust to dispose of the investments of the applicable Series or to determine
fairly the value of the net assets belonging to such Series, or during any other
period permitted by order of the Commission for the protection of investors.
Section 3. Redemptions at the Option of the Trust. The Trust shall have
the right at its option and at any time to redeem Shares of any Shareholder at
the net asset value thereof as described in Section 1 of this Article VI: (i) if
at such time such Shareholder owns Shares of any Series having an aggregate net
asset value of less than an amount determined from time to time by the Trustees;
or (ii) to the extent that such Shareholder owns Shares equal to or in excess of
a percentage of the outstanding Shares of the Trust or of any Series, as such
percentage may be determined from time to time by the Trustees.
ARTICLE VII
COMPENSATION AND LIMITATION OF LIABILITY OF TRUSTEES
Section 1. Compensation. The Trustees shall be entitled to reasonable
compensation from the Trust, and they may fix the amount of such compensation.
Nothing herein shall in any way prevent the employment of any Trustee for
advisory, management, legal, accounting, investment banking or other services
and payment for the same by the Trust.
Section 2. Limitation of Liability. The Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing of any officer,
agent, employee, manager, or principal underwriter of the Trust, nor shall any
Trustee be responsible for the acts or omissions of any other Trustee, but
nothing herein contained shall protect any Trustee against any liability to
which he would otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence, or reckless disregard of the duties involved in the conduct of
his office.
Every note, bond, contract, instrument, certificate or undertaking and
every other act or thing whatsoever issued, executed, or done by or on behalf of
the Trust or the Trustees or any of them in connection with the Trust shall be
conclusively deemed to have been issued, executed, or done only in or with
respect to their or his or her capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
Section 3. Indemnification. The Trustees shall be entitled and
empowered to the fullest extent permitted by law to purchase insurance for and
to provide by resolution or in the Bylaws for indemnification out of Trust
assets for liability and for all expenses reasonably incurred or paid or
expected to be paid by a Trustee or officer in connection with any claim,
action, suit, or proceeding in which he or she becomes involved by virtue of his
or her capacity or former capacity with the Trust. The provisions, including any
exceptions and limitations concerning indemnification, may be set forth in
detail in the Bylaws or in a resolution adopted by the Board of Trustees.
ARTICLE VIII
MISCELLANEOUS
Section 1. Trustees and Shareholders Not Personally Liable; Notice. All
persons extending credit to, contracting with, or having any claim against the
Trust or any Series shall look only to the assets of the Trust, or, to the
extent that the liability of the Trust may have been expressly limited by
contract to the assets of a particular Series, only to the assets belonging to
the relevant Series, for payment under such credit, contract or claim; and
neither the Shareholders nor the Trustees, nor any of the Trust's officers,
employees or agents, whether past, present or future, shall be personally liable
therefor. Nothing in this Declaration of Trust shall protect any Trustee against
any liability to which such Trustee would otherwise be subject by reason of
willful misfeasance, bad faith, gross negligence, or reckless disregard of the
duties involved in the conduct of the office of Trustee.
Every note, bond, contract, instrument, certificate, or undertaking
made or issued on behalf of the Trust by the Trustees, by an officer or officers
or otherwise may include a notice that this Declaration of Trust is on file with
the Secretary of the Commonwealth of Massachusetts and may recite that the note,
bond, contract, instrument, certificate, or undertaking was executed or made by
or on behalf of the Trust or by them as Trustee or Trustees or as officer or
officers or otherwise and not individually and that the obligations of such
instrument are not binding upon any of them or the Shareholders individually but
are binding only upon the assets and property of the Trust or upon the assets
belonging to the Series for the benefit of which the Trustees have caused the
note, bond, contract instrument, certificate, or undertaking to be made or
issued, and may contain such further recital as he or they may deem appropriate,
but the omission of any such recital shall not operate to bind any Trustee or
Trustees or officer or officers or Shareholders or any other person
individually.
Section 2. Trustee's Good Faith Action; Expert Advice; No Bond or
Surety. The exercise by the Trustees of their powers and discretion hereunder
shall be binding upon everyone interested. A Trustee shall be liable for his own
wilful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the office of Trustee, and for nothing else,
and shall not be liable for errors of judgment or mistakes of fact or law. The
Trustees may take advice of counsel or other experts with respect to the meaning
and operation of this Declaration of Trust, and shall be under no liability for
any act or omission in accordance with such advice or for failing to follow such
advice. The Trustees shall not be required to give any bond as such, nor any
surety if a bond is required.
Section 3. Liability of Third Persons Dealing with Trustees. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
Section 4. Termination of Trust or Series. Unless terminated as
provided herein, the Trust shall continue indefinitely. The Trust may be
terminated at any time by vote of at least two-thirds (66-2/3%) of the Shares of
each Series entitled to vote, voting separately by Series, or by the Trustees by
written notice to the Shareholders. Any Series may be terminated at any time by
vote of at least two-thirds (66-2/3%) of the Shares of that Series or by the
Trustees by written notice to the Shareholders of that Series.
Upon termination of the Trust (or any Series, as the case may be),
after paying or otherwise providing for all charges, taxes, expenses, and
liabilities belonging, severally, to each Series (or to the applicable Series,
as the case may be), whether due or accrued or anticipated as may be determined
by the Trustees, the Trust shall, in accordance with such procedures as the
Trustees consider appropriate, reduce the remaining assets belonging, severally,
to each Series (or the applicable Series, as the case may be), to distributable
form in cash or shares or other securities, or any combination thereof, and
distribute the proceeds belonging to each Series or the applicable Series, as
the case may be), to the Shareholders of that Series, as a Series, ratably
according to the number of Shares of that Series held by each Shareholder on the
date of termination.
Section 5. Merger and Consolidation. The Trustees may cause the Trust
or one or more of its Series to be merged into or consolidated with another
Trust or company or the Shares exchanged under or pursuant to any state or
federal statute, if any, or otherwise to the extent permitted by law. Such
merger or consolidation or share exchange must be authorized by vote of a
majority of the outstanding Shares of the Trust as a whole or any affected
Series, as applicable; provided that in all respects not governed by statute or
applicable law, the Trustees shall have power to prescribe the procedure
necessary or appropriate to accomplish an exchange, sale of assets, merger or
consolidation.
Section 6. Filing of Copies; References; Headings. The original or a
copy of this Declaration of Trust and of each amendment hereto shall be kept at
the office of the Trust where it may be inspected by any Shareholder. A copy of
this instrument and of each amendment hereto shall be filed by the Trust with
the Secretary of the Commonwealth of Massachusetts and with any other
governmental office where such filing may from time to time be required. Anyone
dealing with the Trust may rely on a certificate by an officer of the Trust as
to whether or not any such amendments have been made and as to any matters in
connection with the Trust hereunder; and, with the same effect as if it were the
original, may rely on a copy certified by an officer of the Trust to be a copy
of this Declaration of Trust, or of any such amendments. In this Declaration of
Trust and in any such amendment, references to this Declaration of Trust, and
all expressions like "herein," "hereof" and "hereunder," shall be deemed to
refer to this Declaration of Trust as amended or affected by any such
amendments. Headings are placed herein for convenience of reference only and
shall not be taken as a part hereof or control or affect the meaning,
construction or effect of this Declaration of Trust. This Declaration of Trust
may be executed in any number of counterparts each of which shall be deemed an
original.
Section 7. Applicable Law. This Declaration of Trust is created under
and is to be governed by and construed and administered according to the laws of
the Commonwealth of Massachusetts. The Trust shall be of the type commonly
called a Massachusetts business trust, and without limiting the provisions
hereof, the Trust may exercise all powers which are ordinarily exercised by such
a trust.
Section 8. Amendments. This Declaration of Trust may be amended at any
time by an instrument in writing signed by a majority of the Trustees subject to
Shareholder voting rights, if any, pursuant to Article V hereof.
Section 9. Trust Only. It is the intention of the Trustees to create
only the relationship of trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention of the Trustees to create
a general partnership, limited partnership, joint stock association,
corporation, bailment, or any form of legal relationship other than a trust.
Nothing in this Declaration of Trust shall be construed to make the
Shareholders, either by themselves or with the Trustees, partners or members of
a joint stock association.
Section 10. Use of the Name "Xxxxxx". Xxxxxx Management Corporation
("BMC") has consented to the Trust's use of the identifying word or name
"Xxxxxx" in the Trust's name. Such consent is conditioned upon the employment of
BMC, its successors or any affiliate thereof, as the Advisor of the Trust. As
between the Trust and itself, BMC controls the use of the Trust's name insofar
as such name contains the name and identifying word "Xxxxxx," which may be used
from time to time in other connections and for other purposes by BMC or
affiliated entities. BMC may require the Trust to cease using "Xxxxxx" in the
Trust's name if the Trust ceases for any reason to employ BMC, an affiliate, or
any successor as the Trust's Advisor.
Section 11. Provisions in Conflict with Law or Regulations. (a) The
provisions of this Declaration of Trust are severable. If the Trustees shall
determine, with the advice of counsel, that any of such provisions conflicts
with the 1940 Act, the regulated investment company provisions of the Internal
Revenue Code, or with other applicable laws and regulations, the conflicting
shall be deemed never to have constituted a part of this Declaration of Trust;
provided, however, that such determination shall not affect any of the remaining
provisions of this Declaration of Trust or render invalid or improper any action
taken or omitted prior to such determination.
(b) If any provision of this Declaration of Trust 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 provisions in any other jurisdiction or any provision of this
Declaration of Trust in any jurisdiction.
IN WITNESS WHEREOF, the initial Trustees as aforesaid do hereto set
their hands this ____ day of July, 1994.
________________________ Xxxxxx X. Xxxxxxx, as Initial
Trustee and not individually
________________________ Xxxxxxx x. Xxxxx, as Initial
Trustee and not individually
Principal Office: 0000 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Resident Agent: CT Corporation System
0 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Trustees: Dechert Price & Xxxxxx
Ten Xxxx Xxxxxx Xxxxxx, Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000-0000
