: NEW ENGLAND FUNDS TRUST IV
AGREEMENT AND DECLARATION OF TRUST
THIS AGREEMENT AND DECLARATION OF TRUST made at Boston,
Massachusetts this 30th day of October, 1997 by the Trustees
hereunder and the holders of shares of beneficial interest issued
hereunder and to be issued hereunder as hereinafter provided:
WITNESSETH that
WHEREAS, this Trust has been formed to carry on the business
of an investment company; and
WHEREAS, the Trustees have agreed to manage all property
coming into their hands as trustees of a Massachusetts voluntary
association with transferable shares in accordance with the
provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that they will
hold all cash, securities and other assets, which they may from
time to time acquire in any manner as Trustee hereunder, IN TRUST
to manage and dispose of the same upon the following terms and
conditions for the benefit of the holders from time to time of
shares in this Trust as hereinafter set forth.
ARTICLE I
Name and Definitions
SECTION 1. This Trust shall be known as "New England Funds
Trust IV" 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) "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 in accordance with such Article;
(c) "Shares" means the equal proportionate units of
interest into which the beneficial interest in the Trust or in
the Trust property belonging to any Series of the Trust or in any
class of Shares of the Trust (as the context may require) shall
be divided from time to time;
(d) "Shareholder" means a record owner of Shares;
(e) "1940 Act" refers to the Investment Company Act of 1940
and the Rules and Regulations thereunder, all as amended from
time to time;
(f) The terms "Commission" and "principal underwriter"
shall have the meanings given them in the 1940 Act;
(g) "Declaration of Trust" or "Declaration" shall mean this
Agreement and Declaration of Trust, as amended or restated from
time to time;
(h) "By-Laws" shall mean the By-Laws of the Trust, as
amended from time to time;
(i) "Series Company" refers to the form of registered open-
end investment company described in Section 18(f)(2) of the 1940
Act or in any successor statutory provision;
(j) "Series" refers to Series of Shares established and
designated under or in accordance with the provisions of
Article III;
(k) "Multi-Class Series" refers to Series of Shares
established and designated as Multi-Class Series under or in
accordance with the provisions of Article III, Section 6; and
(l) The terms "class" and "class of Shares" refer to
the division of Shares representing any Multi-Class Series into
two or more classes in accordance with the provisions of
Article III.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to provide investors a managed
investment primarily in securities (including options), debt
instruments, commodities, commodity contracts and options
thereon.
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 Section 6 of this Article III, each Share shall
have voting rights as provided in Article V hereof, and holders
of the Shares of any Series or class shall be entitled to receive
dividends, when and as declared with respect thereto in the
manner provided in Article VI, Section 1 hereof. Except as
otherwise provided in Section 6 of this Article III with respect
to Shares of Multi-Class Series, no Share 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. Except as otherwise provided in Section 6 of this
Article III with respect to Shares of Multi-Class Series, 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 such Shareholders on the record date for any
dividend or distribution 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. The Trustees may from time to time divide
or combine the Shares of any particular Series or class into a
greater or lesser number of Shares of that Series or class
without thereby changing the proportionate beneficial interest of
the Shares of that Series or class in the assets belonging to
that Series or attributable to that class or in any way affecting
the rights of Shares of any other Series or class.
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 and class. 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 class and similar
matters. The record books of the Trust as kept by the Trust or
any transfer or similar agent, as the case may be, shall be
conclusive as to who are the Shareholders of each Series and
class and as to the number of Shares of each Series and class
held from time to time by each.
SECTION 3. INVESTMENTS IN THE TRUST. The Trustees shall
accept investments in the Trust from such persons and on such
terms and for such consideration as they from time to time
authorize.
SECTION 4. STATUS OF SHARES AND LIMITATION OF PERSONAL
LIABILITY. Shares shall be deemed to be personal property giving
only the rights provided in this instrument. Every Shareholder
by virtue of having become a Shareholder shall be held to have
expressly assented and agreed to the terms hereof and to have
become a party hereto. The death of a Shareholder during the
continuance of the Trust shall not operate to terminate the same
nor entitle the representative of any deceased Shareholder to an
accounting or to take any action in court or elsewhere against
the Trust or the Trustees, but 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 or
right to call for a partition or division of the same or for an
accounting, nor shall the ownership of Shares constitute the
Shareholders partners. Neither the Trust nor the Trustees, nor
any officer, employee or agent of the Trust, shall have any power
to bind personally any Shareholders, nor except as specifically
provided herein to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the
Shareholder may at any time personally agree to pay.
SECTION 5. POWER OF TRUSTEES TO CHANGE PROVISIONS RELATING
TO SHARES. Notwithstanding any other provisions 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 the need for Shareholder action, so as to add to, delete,
replace or otherwise modify any provisions relating to the Shares
contained in this Declaration of Trust for the purpose of
(i) responding to or complying with any regulations, orders,
rulings or interpretations of any governmental agency or any
laws, now or hereafter applicable to the Trust, or
(ii) designating and establishing Series or classes in addition
to those established in Section 6 of this Article III; 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. The
establishment and designation of any Series or classes of Shares
in addition to the Series established and designated in Section 6
of this Article III shall be effective upon the execution by a
majority of the then Trustees of an amendment to this Declaration
of Trust, taking the form of a complete restatement or otherwise,
setting forth such establishment and designation and the relative
rights and preferences of such Series, or as otherwise provided
in such instrument. The establishment and designation of any
class of Shares shall be effective upon either the execution by a
majority of the then Trustees of an amendment to this Declaration
of Trust or the adoption by vote or written consent of a majority
of the then Trustees of a resolution setting forth such
establishment and designation and the relative rights and
preferences of such class and such eligibility requirements for
investment therein as the Trustees may determine, or as otherwise
provided in such amendment or resolution.
Without limiting the generality of the foregoing, the
Trustees may, for the above-stated purposes, amend the
Declaration of Trust to:
(a) create one or more Series or classes of Shares (in
addition to any Series or classes already existing or otherwise)
with such rights and preferences and such eligibility
requirements for investment therein as the Trustees shall
determine and reclassify any or all outstanding Shares as shares
of particular Series or classes in accordance with such
eligibility requirements;
(b) amend any of the provisions set forth in paragraphs (a)
through (j) of Section 6 of this Article III;
(c) combine one or more Series or classes of Shares into a
single Series or class on such terms and conditions as the
Trustees shall determine;
(d) change or eliminate any eligibility requirements for
investment in Shares of any Series or class, including without
limitation the power to provide for the issue of Shares of any
Series or class 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 company;
(e) change the designation of any Series or class of
Shares;
(f) change the method of allocating dividends among the
various Series and classes 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 or classes of Shares; and
(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 or any classes of Shares
thereof.
SECTION 6. ESTABLISHMENT AND DESIGNATION OF SERIES AND
CLASSES. Without limiting the authority of the Trustees set
forth in Section 5, INTER ALIA, to establish and designate any
further Series or classes or to modify the rights and preferences
of any Series or class, the following Series shall be, and are
hereby, established and designated as Multi-Class Series: (1) New
England One Growth Fund, (2) New England One Moderate Fund and
(3) New England One Conservative Fund.
Shares of each Series established in this Section 6 shall
have the following rights and preferences relative to Shares of
each other Series, and Shares of each class of a Multi-Class
Series shall have such rights and preferences relative to other
classes of the same Series as are set forth below, together with
such other rights and preferences relative to such other classes
as are set forth in any resolution of the Trustees establishing
and designating such class of Shares:
(a) ASSETS BELONGING TO SERIES. Subject to the provisions
of paragraph (c) of this Section 6:
All consideration received by the Trust for the issue or
sale of Shares of a particular Series, together with all assets
in which such consideration is invested or reinvested, all
income, earnings, profits and proceeds thereof from whatever
source derived, including, without limitation, any proceeds
derived from the sale, exchange or liquidation of such assets,
and any funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall irrevocably
belong to that Series for all purposes, subject only to the
rights of creditors, and shall be so recorded upon the books of
account of the Trust. Such consideration, assets, income,
earnings, profits and proceeds thereof, from whatever source
derived, including, without limitation, any proceeds derived from
the sale, exchange or liquidation of such assets, and any funds
or payments derived from any reinvestment of such proceeds, in
whatever form the same may be, are herein referred to as "assets
belonging to" that Series. In the event that there are any
assets, income, earnings, profits and proceeds thereof, funds or
payments which are not readily identifiable as belonging to any
particular Series (collectively "General Assets"), the Trustees
shall allocate such General Assets to, between or among any one
or more of the Series established and designated from time to
time in such manner and on such basis as they, in their sole
discretion, deem fair and equitable, and any General Asset 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. Subject to the
provisions of paragraph (c) of this Section 6:
The assets belonging to each particular Series shall be
charged solely with the liabilities of the Trust in respect to
that Series, the expenses, costs, charges and reserves
attributable to that Series, and any general liabilities of the
Trust which are not readily identifiable as belonging to any
particular Series but which are allocated and charged by the
Trustees to and among any one or more of the Series established
and designated from time to time in a 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 Trustees shall be conclusive and
binding upon the Shareholders of all Series for all purposes.
(c) APPORTIONMENT OF ASSETS ETC. IN CASE OF MULTI-CLASS
SERIES. In the case of any Multi-Class Series, to the extent
necessary or appropriate to give effect to the relative rights
and preferences of any classes of Shares of such Series, (i) any
assets, income, earnings, profits, proceeds, liabilities,
expenses, charges, costs and reserves belonging or attributable
to that Series may be allocated or attributed to a particular
class of Shares of that Series or apportioned among two or more
classes of Shares of that Series; and (ii) Shares of any class of
such Series may have priority or preference over shares of other
classes of such Series with respect to dividends or distributions
upon termination of the Trust or of such Series or class or
otherwise, provided that no Share shall have any priority or
preference over any other Shares of the same class and that all
dividends and distributions to Shareholders of a particular class
shall be made ratably among all Shareholders of such class
according to the number of Shares of such class held of record by
such Shareholders on the record date for any dividend or
distribution or on the date of termination, as the case may be.
(d) DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES.
Notwithstanding any other provisions of this Declaration,
including, without limitation, Article VI, no dividend or
distribution (including, without limitation, any distribution
paid upon termination of the Trust or of any Series or class)
with respect to, nor any redemption or repurchase of, the Shares
of any Series or class shall be effected by the Trust other than
from the assets belonging to such Series or attributable to such
class, nor shall any Shareholder of any particular Series or
class otherwise have any right or claim against the assets
belonging to any other Series or attributable to any other class
except to the extent that such Shareholder has such a right or
claim hereunder as a Shareholder of such other Series or class.
(e) VOTING. Notwithstanding any of the other provisions of
this Declaration, including, without limitation, Section 1 of
Article V, the Shareholders of any particular Series or class
shall not be entitled to vote on any matters as to which such
Series or class is not affected. On any matter submitted to a
vote of Shareholders, all Shares of the Trust then entitled to
vote shall, except as otherwise provided in the By-Laws, be voted
in the aggregate as a single class without regard to Series or
classes of Shares, except that (1) when required by the 1940 Act
or when the Trustees shall have determined that the matter
affects one or more Series or classes of Shares materially
differently, Shares shall be voted by individual Series or class
and (2) when the matter affects only the interests of one or more
Series or classes, only Shareholders of such Series or classes
shall be entitled to vote thereon.
(f) EQUALITY. Except to the extent necessary or
appropriate to give effect to the relative rights and preferences
of any classes of Shares of a Multi-Class Series, 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. All the Shares of each particular class of Shares within
a Multi-Class Series shall represent an equal proportionate
interest in the assets belonging to such Series that are
attributable to such class (subject to the liabilities
attributable to such class), and each Share of any particular
class within a Multi-Class Series shall be equal to each other
Share of such class.
(g) FRACTIONS. Any fractional Share of a Series or class
shall carry proportionately all the rights and obligations of a
whole Share of that Series or class, including rights with
respect to voting, receipt of dividends and distributions,
redemption of Shares and termination of the Trust.
(h) EXCHANGE PRIVILEGE. The Trustees shall have the
authority to provide that the holders of Shares of any Series or
class shall have the right to exchange said Shares for Shares of
one or more other Series or classes of Shares in accordance with
such requirements and procedures as may be established by the
Trustees.
(i) COMBINATION OF SERIES OR CLASSES. 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 or attributable to any class into assets and liabilities
belonging to a single Series or attributable to a single class.
(j) ELIMINATION OF SERIES OR CLASS. At any time that there
are no Shares outstanding of any particular Series previously
established and designated, the Trustees may amend this
Declaration of Trust to abolish that Series and to rescind the
establishment and designation thereof, such amendment to be
effected in the manner provided in Section 5 of this Article III.
At any time that there are no Shares outstanding of any
particular class previously established and designated of a
Multi-Series Class, the Trustees may abolish that class and
rescind the establishment and designation thereof, either by
amending this Declaration of Trust in the manner provided in
Section 5 of this Article III (if such class was established and
designated by an amendment to this Declaration of Trust), or by
vote or written consent of a majority of the then Trustees (if
such class was established and designated by Trustee vote or
written consent).
SECTION 7. INDEMNIFICATION OF SHAREHOLDERS. In case any
Shareholder or former Shareholder shall be held to be personally
liable solely by reason of his or her being or having been a
Shareholder of the Trust or of a particular Series or class and
not because of his or her acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his or her
heirs, executors, administrators or other legal representatives
or, in the case of a corporation or other entity, its corporate
or other general successor) shall be entitled out of the assets
of the Series (or attributable to the class) of which he or she
is a Shareholder or former Shareholder to be held harmless from
and indemnified against all loss and expense arising from such
liability.
SECTION 8. NO PREEMPTIVE RIGHTS. Shareholders shall have
no preemptive or other right to subscribe to any additional
Shares or other securities issued by the Trust.
SECTION 9. DERIVATIVE CLAIMS. No Shareholder shall have
the right to bring or maintain any court action, proceeding or
claim on behalf of the Trust or any Series without first making
demand on the Trustees requesting the Trustees to bring or
maintain such action, proceeding or claim. Such demand shall be
excused only when the plaintiff makes a specific showing that
irreparable injury to the Trust or Series would otherwise result.
Such demand shall be mailed to the Clerk of the Trust at the
Trust's principal office and shall set forth in reasonable detail
the nature of the proposed court action, proceeding or claim and
the essential facts relied upon by the Shareholder to support the
allegations made in the demand. The Trustees shall consider such
demand within 45 days of its receipt by the Trust. In their sole
discretion, the Trustees may submit the matter to a vote of
Shareholders of the Trust or Series, as appropriate. Any
decision by the Trustees to bring, maintain or settle (or not to
bring, maintain or settle) such court action, proceeding or
claim, or to submit the matter to a vote of Shareholders shall be
made by the Trustees in their business judgment and shall be
binding upon the Shareholders. Any decision by the Trustees to
bring or maintain a court action, proceeding or suit on behalf of
the Trust or a Series shall be subject to the right of the
Shareholders under Article V, Section 1 hereof to vote on whether
or not such court action, proceeding or suit should or should not
be brought or maintained.
ARTICLE IV
The Trustees
SECTION 1. ELECTION AND TENURE. The initial Trustee shall
be Xxxxx X.X. Xxxxxxxxx. The Trustees may fix the number of
Trustees, fill vacancies in the Trustees, including vacancies
arising from an increase in the number of Trustees, or remove
Trustees with or without cause. Each Trustee shall serve during
the continued lifetime of the Trust until he or she dies, resigns
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 or her successor.
Any Trustee may resign at any time by written instrument signed
by him or her and delivered to any officer of the Trust or to a
meeting of the Trustees. Such resignation shall be effective
upon receipt unless specified to be effective at some other time.
Except to the extent expressly provided in a written agreement
with the Trust, no Trustee resigning and no Trustee removed shall
have any right to any compensation for any period following his
or her resignation or removal, or any right to damages on account
of such removal. The Shareholders may fix the number of Trustees
and elect Trustees at any meeting of Shareholders called by the
Trustees for that purpose and to the extent required by
applicable law, including paragraphs (a) and (b) of Section 16 of
the 1940 Act.
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.
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 By-Laws not inconsistent with this Declaration of Trust
providing for the regulation and management of the affairs of the
Trust and may amend and repeal them to the extent that such By-
Laws do not reserve that right to the Shareholders; they may
elect and remove such officers and appoint and terminate such
agents as they consider appropriate; they may appoint from their
own number 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,
retain a transfer agent or a 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 Shareholders with respect
to various matters, and in general delegate such authority as
they consider desirable to any officer of the Trust, to any
committee of the Trustees and to any agent or employee of the
Trust or to any such custodian or underwriter.
Without limiting the foregoing, the Trustees shall have
power and authority:
(a) To invest and reinvest cash, and to hold cash
uninvested;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate,
lease, 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 in a form not
indicating any trust, whether in bearer, unregistered or other
negotiable form, or in its own name or in the name of a custodian
or subcustodian or a nominee or nominees or otherwise;
(f) 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; and to make contracts of
guaranty or suretyship, or otherwise assume liability for payment
of such notes or other obligations;
(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 business of the Trust, including, without
limitation, insurance policies insuring the assets of the Trust
and payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, investment advisers,
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 adviser, principal underwriter or
independent contractor, including any action taken or omitted
that may be determined to constitute negligence, whether or not
the Trust would have the power to indemnify such person against
liability; and
(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.
The Trustees shall not in any way be bound or limited by any
present or future law or custom in regard to investments by
Trustees. 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 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 advisers or managers, principal underwriter, auditor,
counsel, custodian, transfer agent, shareholder servicing agent,
and such other agents or independent contractors and such other
expenses and charges as the Trustees may deem necessary or proper
to incur.
SECTION 5. PAYMENT OF EXPENSES BY SHAREHOLDERS. The
Trustees shall have the power, as frequently as they may
determine, to cause each Shareholder, or each Shareholder of any
particular Series or class, to pay directly, in advance or
arrears, for charges of the Trust's custodian or transfer,
shareholder servicing or similar agent, an amount fixed from time
to time by the Trustees, by setting off such charges due from
such Shareholder from declared but unpaid dividends owed such
Shareholder and/or by reducing the number of Shares in the
account of such Shareholder by that number of full and/or
fractional Shares which represents the outstanding amount of such
charges due from such Shareholder.
SECTION6. 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. ADVISORY, MANAGEMENT AND DISTRIBUTION CONTRACTS.
Subject to such requirements and restrictions as may be set forth
in the By-Laws, the Trustees may, at any time and from time to
time, contract for exclusive or nonexclusive advisory and/or
management services for the Trust or for any Series or class with
New England Funds Management, L.P. or any other corporation,
trust, association or other organization (the "Manager"); and any
such contract may contain such other terms as the Trustees may
determine, including without limitation, authority for a Manager
to determine from time to time without prior consultation with
the Trustees what investments shall be purchased, held, sold or
exchanged and what portion, if any, of the assets of the Trust
shall be held uninvested and to make changes in the Trust's
investments. The Trustees may also, at any time and from time to
time, contract with New England Funds, L.P., the Manager or any
other corporation, trust, association or other organization,
appointing it exclusive or nonexclusive distributor or principal
underwriter for the Shares, every such contract to comply with
such requirements and restrictions as may be set forth in the By-
Laws; and any such contract may contain such other terms as the
Trustees may determine.
The fact that:
(i) any of the Shareholders, Trustees or officers of
the Trust is a shareholder, director, officer, partner,
trustee, employee, manager, adviser, principal underwriter,
distributor or affiliate or agent of or for any corporation,
trust, association or other organization, or of 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,
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, 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 Meetings
SECTION 1. VOTING POWERS. The Shareholders shall have
power to vote only (i) for the election of Trustees as provided
in Article IV, Section 1, (ii) with respect to any amendment of
this Declaration of Trust to the extent and as provided in
Article VIII, Section 8, (iii) to the same extent as the
stockholders of a Massachusetts business corporation as to
whether or not a court action, proceeding or claim should or
should not be brought or maintained derivatively or as a class
action on behalf of the Trust or the Shareholders, (iv) with
respect to the termination of the Trust or any Series or class to
the extent and as provided in Article VIII, Section 4, (v) to
remove Trustees from office to the extent and as provided in
Article V, Section 7 and (vi) with respect to such additional
matters relating to the Trust as may be required by this
Declaration of Trust, the By-Laws or any registration of the
Trust with the Commission (or any successor agency) or any state,
or as the Trustees may consider necessary or desirable. Each
whole Share shall be entitled to one vote as to any matter on
which it is entitled to vote and each fractional Share shall be
entitled to a proportionate fractional vote. There shall be no
cumulative voting in the election of Trustees. Shares may be
voted in person or by proxy. A proxy with respect to Shares held
in the name of two or more persons shall be valid if executed by
any one of them unless at or prior to exercise of the proxy the
Trust receives a specific written notice to the contrary from any
one of them. A proxy purporting to be executed by or on behalf
of a Shareholder shall be deemed valid unless challenged at or
prior to its exercise and the burden of proving invalidity shall
rest on the challenger. At any time when no Shares of a Series
or class are outstanding the Trustees may exercise all rights of
Shareholders of that Series or class with respect to matters
affecting that Series or class and may with respect to that
Series or class take any action required by law, this Declaration
of Trust or the By-Laws to be taken by the Shareholders thereof.
SECTION 2. VOTING POWER AND MEETINGS. Meetings of the
Shareholders may be called by the Trustees for the purpose of
electing Trustees as provided in Article IV, Section 1 and for
such other purposes as may be prescribed by law, by this
Declaration of Trust or by the By-Laws. Meetings of the
Shareholders may also be called by the Trustees from time to time
for the purpose of taking action upon any other matter deemed by
the Trustees to be necessary or desirable. A meeting of
Shareholders may be held at any place designated by the Trustees.
Written notice of any meeting of Shareholders shall be 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 By-Laws, a
written waiver thereof, executed before or after the meeting by
such Shareholder or 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 law, by the By-Laws or by this Declaration
of Trust, 40% of the Shares entitled to vote shall constitute a
quorum at a Shareholders' meeting. When any Series or class is
to vote separately from any other Shares which are to vote on the
same matters, 40% of the Shares of such Series or class entitled
to vote shall constitute a quorum at a Shareholders' meeting of
that Series or class. Any meeting of Shareholders 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. 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 or the By-Laws or by law.
If any question on which the Shareholders are entitled to vote
would adversely affect the rights of any Series or class of
Shares, the vote of a majority (or such larger vote as is
required as aforesaid) of the Shares of such Series or class
which are entitled to vote, voting separately, shall also be
required to decide such question.
SECTION 4. ACTION BY WRITTEN CONSENT. Any action taken by
Shareholders may be taken without a meeting if Shareholders
holding a majority of the Shares entitled to vote on the matter
(or such larger proportion thereof as shall be required by any
express provision of this Declaration of Trust or by the By-Laws)
and holding a majority (or such larger proportion as aforesaid)
of the Shares of any Series or class entitled to vote separately
on the matter consent to the action in writing and such written
consents are filed with the records of the meetings of
Shareholders. Such consent shall be treated for all purposes as
a vote taken at a meeting of Shareholders.
SECTION 5. RECORD DATES. For the purpose of determining
the Shareholders of any Series or class who are entitled to vote
or act at any meeting or any adjournment thereof, the Trustees
may from time to time fix a time, which shall be not more than 90
days before the date of any meeting of Shareholders, as the
record date for determining the Shareholders of such Series or
class having the right to notice of and to vote at such meeting
and any adjournment thereof, and in such case only Shareholders
of record on such record date shall have such right,
notwithstanding any transfer of Shares on the books of the Trust
after the record date. For the purpose of determining the
Shareholders of any Series or class who are entitled to receive
payment 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 or class having the right to receive such dividend or
distribution. Without fixing a record date the Trustees may for
voting and/or distribution purposes close the register or
transfer books for one or more Series or classes for all or any
part of the period prior to a meeting of Shareholders or the
payment of a distribution. Nothing in this Section shall be
construed as precluding the Trustees from setting different
record dates for different Series or classes.
SECTION 6. ADDITIONAL PROVISIONS. The By-Laws may include
further provisions for Shareholders' votes and meetings and
related matters.
SECTION 7. REMOVAL OF TRUSTEES. No natural person shall
serve as Trustee after the holders of record of not less than
two-thirds of the outstanding Shares have declared that such
Trustee be removed from that office either by declaration in
writing filed with the Trust's custodian or by votes cast in
person or by proxy at a meeting called for the purpose. The
Trustees shall promptly call a meeting of Shareholders for the
purpose of voting upon the question of removal of any Trustee
when requested in writing so to do by the record holders of not
less than 10 per centum of the outstanding Shares.
Whenever ten or more Shareholders of record who have been
such for at least six months preceding the date of application,
and who hold in the aggregate Shares having a net asset value of
at least 1 per centum of the outstanding Shares, shall apply to
the Trustees in writing, stating that they wish to communicate
with other Shareholders with a view to obtaining signatures to a
request for a meeting pursuant to this Section and accompanied by
a form of communication and request which they wish to transmit,
the Trustees shall within five business days after receipt of
such application either (a) afford to such applicants access to a
list of the names and addresses of all Shareholders as recorded
on the books of the Trust; or (b) inform such applicants as to
the approximate number of Shareholders of record, and the
approximate cost of mailing to them the proposed communication
and form of request. If the Trustees elect to follow the course
specified in clause (b), the Trustees, upon the written request
of such applicants, accompanied by a tender of the material to be
mailed and of the reasonable expenses of mailing, shall, with
reasonable promptness, mail such material to all Shareholders of
record at their addresses as recorded on the books of the Trust,
unless within five business days after such tender the Trustees
shall mail to such applicants and file with the Commission,
together with a copy of the material proposed to be mailed, a
written statement signed by at least a majority of the Trustees
to the effect that in their opinion either such material contains
untrue statements of fact or omits to state facts necessary to
make the statements contained therein not misleading, or would be
in violation of applicable law, and specifying the basis of such
opinion. If the Commission shall enter an order refusing to
sustain any of the objections specified in the written statement
so filed, or if, after the entry of an order sustaining one or
more of such objections, the Commission shall find, after notice
and opportunity for hearing, that all objections so sustained
have been met, and shall enter an order so declaring, the
Trustees shall mail copies of such material to all Shareholders
with reasonable promptness after the entry of such order and the
renewal of such tender.
ARTICLE VI
Net Income, Distributions, and Redemptions and Repurchases
SECTION 1. DISTRIBUTIONS OF NET INCOME. The Trustees shall
each year, or more frequently if they so determine in their sole
discretion, distribute to the Shareholders of each Series, in
Shares of that Series, cash or otherwise, an amount approximately
equal to the net income attributable to the assets belonging to
such Series and may from time to time distribute to the
Shareholders of each Series, in Shares of that Series, cash or
otherwise, such additional amounts, but only from the assets
belonging to such Series, as they may authorize. Except as
otherwise permitted by paragraph (c) of Section 6 of Article III
in the case of Multi-Class 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 and
recorded on the books of the Trust at the date and time of record
established for the payment of such dividend or distributions.
The manner of determining net income, income, asset values,
capital gains, expenses, liabilities and reserves of any Series
or class may from time to time be altered as necessary or
desirable in the judgment of the Trustees to conform such manner
of determination to any other method prescribed or permitted by
applicable law. Net income shall be determined by the Trustees
or by such person as they may authorize at the times and in the
manner provided in the By-Laws. Determinations of net income of
any Series or class and determinations of income, asset value,
capital gains, expenses, and liabilities made by the Trustees, or
by such person as they may authorize, in good faith, shall be
binding on all parties concerned. The foregoing sentence shall
not be construed to protect any Trustee, officer or agent of the
Trust against any liability to the Trust or its security holders
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.
If, for any reason, the net income of any Series or class
determined at any time is a negative amount, the pro rata share
of such negative amount allocable to each Shareholder of such
Series or class shall constitute a liability of such Shareholder
to that Series or class which shall be paid out of such
Shareholder's account at such times and in such manner as the
Trustees may from time to time determine (x) out of the accrued
dividend account of such Shareholder, (y) by reducing the number
of Shares of that Series or class in the account of such
Shareholder, or (z) otherwise.
SECTION 2. REDEMPTIONS AND REPURCHASES. The Trust shall
purchase such Shares as are offered by any Shareholder for
redemption, upon the presentation of a proper instrument of
transfer together with a request directed to the Trust or a
person designated by the Trust that the Trust purchase such
Shares or in accordance with such other procedures for redemption
as the Trustees may from time to time authorize; and the Trust
will pay therefor the net asset value thereof, as determined in
accordance with the By-Laws, next determined. Payment for said
Shares shall be made by the Trust to the Shareholder within seven
days after the date on which the request is made. The obligation
set forth in this Section 2 is subject to the provision that in
the event that any time the New York Stock Exchange is closed for
other than weekends or holidays, or if permitted by the rules of
the Commission during periods when trading on the New York Stock
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 attributable to any class
thereof or during any other period permitted by order of the
Commission for the protection of investors, such obligations may
be suspended or postponed by the Trustees. The Trust may also
purchase or repurchase Shares at a price not exceeding the net
asset value of such Shares in effect when the purchase or
repurchase or any contract to purchase or repurchase is made.
The redemption price may in any case or cases be paid wholly
or partly in kind if the Trustees determine that such payment is
advisable in the interest of the remaining Shareholders of the
Series the Shares of which are being redeemed. In making any
such payment wholly or partly in kind, the Trust shall, so far as
may be practicable, deliver assets which approximate the
diversification of all of the assets belonging at the time to the
Series the Shares of which are being redeemed. Subject to the
foregoing, the fair value, selection and quantity of securities
or other property so paid or delivered as all or part of the
redemption price may be determined by or under authority of the
Trustees. In no case shall the Trust be liable for any delay of
any corporation or other person in transferring securities
selected for delivery as all or part of any payment in kind.
SECTION 3. REDEMPTIONS AT THE OPTION OF THE TRUST. The
Trust shall have the right at its option and at any time to
redeem Shares of any Shareholder at the net asset value thereof
as described in Section 1 of this Article VI: (i) if at such time
such Shareholder owns Shares of any Series or class 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
determined from time to time by the Trustees of the outstanding
Shares of the Trust or of any Series or class.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
SECTION 1. COMPENSATION. The Trustees as such shall be
entitled to reasonable compensation from the Trust; they may fix
the amount of their compensation. Nothing herein shall in any
way prevent the employment of any Trustee for advisory,
management, legal, accounting, investment banking or other
services and payment for the same by the Trust.
SECTION 2. LIMITATION OF LIABILITY. The Trustees shall not
be responsible or liable in any event for any neglect or wrong-
doing of any officer, agent, employee, Manager or principal
underwriter of the Trust, nor shall any Trustee be responsible
for the act or omission of any other Trustee, but nothing herein
contained shall protect any Trustee against any liability to
which he or she would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of his or her office.
Every note, bond, contract, instrument, 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.
ARTICLE VIII
Miscellaneous
SECTION 1. TRUSTEES, SHAREHOLDERS, ETC. NOT PERSONALLY
LIABLE; NOTICE. All persons extending credit to, contracting
with or having any claim against the Trust or any Series or class
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 or attributable
to a particular class, only to the assets belonging to the
relevant Series or attributable to the relevant class, 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 any officers or officer or otherwise shall give
notice that this Declaration of Trust is on file with the
Secretary of the Commonwealth of Massachusetts and shall recite
that the same was executed or made by or on behalf of the Trust
or by them as Trustee or Trustees or as officers or officer or
otherwise and not individually and that the obligations of such
instrument are not binding upon any of them or the Shareholders
individually but are binding only upon the assets and property of
the Trust or upon the assets belonging to the Series or
attributable to the class for the benefit of which the Trustees
have caused the note, bond, contract, instrument, certificate or
undertaking to be made or issued, and may contain such further
recital as he or she or they may deem appropriate, but the
omission of any such recital shall not operate to bind any
Trustee or Trustees or officers or officer 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
discretions hereunder shall be binding upon everyone interested.
A Trustee shall be liable for his or her 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. 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, SERIES OR CLASS. Unless
terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be terminated at any time by
vote of at least 66-2/3% of the Shares of each Series entitled to
vote and voting separately by Series or by the Trustees by
written notice to the Shareholders. Any Series or class may be
terminated at any time by vote of at least 66-2/3% of the Shares
of that Series or class or by the Trustees by written notice to
the Shareholders of that Series or class.
Upon termination of the Trust (or any Series or class, as
the case may be), after paying or otherwise providing for all
charges, taxes, expenses and liabilities belonging, severally, to
each Series (or the applicable Series or attributable to the
particular class, 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 or attributable to the
particular class, 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 or attributable to the particular class, as the
case may be), to the Shareholders of that Series (or class, as
the case may be), as a Series (or class, as the case may be),
ratably according to the number of Shares of that Series (or
class, as the case may be) held by the several Shareholders on
the date of termination.
SECTION 5. MERGER AND CONSOLIDATION. The Trustees may
cause the Trust to be merged into or consolidated with another
trust or company or its shares exchanged under or pursuant to any
state or federal statute, if any, or otherwise to the extent
permitted by law, if such merger or consolidation or share
exchange has been authorized by vote of a majority of the
outstanding Shares; provided that in all respects not governed by
statute or applicable law, the Trustees shall have power to
prescribe the procedure necessary or appropriate to accomplish a
sale of assets, merger or consolidation.
SECTION 6. FILING OF COPIES, REFERENCE, HEADINGS. The
original or a copy of this instrument and of each amendment
hereto shall be kept at the office of the Trust where it may be
inspected by any Shareholder. A copy of this instrument and of
each amendment hereto shall be filed by the Trust with the
Secretary of the Commonwealth of Massachusetts and with any other
governmental office where such filing may from time to time be
required. Anyone dealing with the Trust may rely on a
certificate by an officer of the Trust as to whether or not any
such amendments have been made and as to any matters in
connection with the Trust hereunder; and, with the same effect as
if it were the original, may rely on a copy certified by an
officer of the Trust to be a copy of this instrument or of any
such amendments. In this instrument and in any such amendment,
references to this instrument, and all expressions like "herein,"
"hereof" and "hereunder," shall be deemed to refer to this
instrument as amended or affected by any such amendments.
Headings are placed herein for convenience of reference only and
shall not be taken as a part hereof or to control or affect the
meaning, construction or effect of this instrument. This
instrument may be executed in any number of counterparts each of
which shall be deemed an original.
SECTION 7. APPLICABLE LAW. This Declaration of Trust is
made in the Commonwealth of Massachusetts, and it is created
under and is to be governed by and construed and administered
according to the laws of said Commonwealth. The Trust shall be
of the type commonly called a Massachusetts business trust, and,
without limiting the provisions hereof, the Trust may exercise
all powers which are ordinarily exercised by such a trust.
SECTION 8. AMENDMENTS. This Declaration of Trust may be
amended at any time by an instrument in writing signed by a
majority of the then Trustees when authorized so to do by vote of
a majority of the Shares entitled to vote with respect to such
amendment, except that amendments described in Article III,
Section 5 hereof or having the purpose of changing the name of
the Trust or of supplying any omission, curing any ambiguity or
curing, correcting or supplementing any defective or inconsistent
provision contained herein shall not require authorization by
Shareholder vote.
SECTION 9. ADDRESSES. The address of the Trust is 000
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. The address of the
initial Trustee is c/o New England Funds, L.P., 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal for himself and for his successors and assigns this
30th day of October, 1997.
XXXXX X.X. XXXXXXXXX
Xxxxx X.X. Xxxxxxxxx
Initial Trustee
THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Boston, October 30, 1997
Then personally appeared the above named Xxxxx X.X.
Xxxxxxxxx, and acknowledged the foregoing instrument to be his
free act and deed, before me.
XXXXXXXX X. XXXXX
Notary Public
New England Funds Trust I, New England Funds Trust II and
New England Funds Trust III hereby consents to the use of the
name "New England Funds Trust IV" by the Massachusetts business
trust of that name organized under the Agreement and Declaration
of Trust dated October 30, 1997.
New England Funds Trust I
New England Funds Trust II
New England Funds Trust III
By: XXXXX X. X. XXXXXXXXX
Xxxxx X. X. Xxxxxxxxx,
President
Dated: October 30, 1997
