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EXHIBIT 1(a)
THE GW INVESTMENT FUNDS
MASTER TRUST AGREEMENT
FEBRUARY 22, 1989
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THE GW INVESTMENT FUNDS
MASTER TRUST AGREEMENT
ARTICLE I. NAME AND DEFINITIONS PAGE
Section 1.1 Name 2
Section 1.2 Definitions 2
a) "Trust" 2
b) "Trustees" 2
c) "Shares" 2
d) "Series" 2
e) "Shareholder" 2
f) "1940 Act" 2
g) "Commission" 2
h) "Declaration of Trust" 2
i) "By-Laws" 2
ARTICLE II. PURPOSE OF THE TRUST 2
ARTICLE III. THE TRUSTEES 3
Section 3.1 Number, Designation, Election, Term, etc. 3
a) Initial Trustees 3
b) Number 3
c) Election and Term 3
d) Resignation and Retirement 3
e) Removal 3
f) Vacancies 4
g) Effect of Death, Resignation, etc. 4
h) No Accounting 4
Section 3.2 Powers of Trustees 4
a) Investments 5
b) Disposition of Assets 5
c) Ownership Powers 5
d) Subscription 6
e) Form of Holding 6
f) Reorganization, etc. 6
g) Voting Trusts, etc. 6
h) Compromise 6
(i)
3
i) Partnerships, etc. 6
j) Borrowing and Security 6
k) Guarantees, etc. 6
l) Insurance 7
Section 3.3 Certain Contracts 7
a) Advisory 8
b) Administration 8
c) Distribution 8
d) Custodian and Depository 8
e) Transfer and Dividend 8
Disbursing Agency
f) Shareholder Servicing 8
g) Accounting 8
Section 3.4 Payment of Trust Expenses and Compensation
of Trustees 9
Section 3.5 Ownership of Assets of the Trust 10
ARTICLE IV. SHARES 10
Section 4.1 Description of Shares 10
Section 4.2 Establishment and Designation of
Sub-Trusts 11
a) Assets Belonging to Sub-Trusts 11
b) Liabilities Belonging to 12
Sub-Trusts
c) Dividends 13
d) Liquidation 13
e) Voting 13
f) Redemption by Shareholder 14
g) Redemption by Trust 14
h) Net Asset Value 14
i) Transfer 15
j) Equality 15
k) Fractions 15
l) Conversion of Rights 15
Section 4.3 Ownership of Shares 16
Section 4.4 Investment in the Trust 16
(ii)
4
Section 4.5 No Pre-emptive Rights 16
Section 4.6 Status of Shares and Limitation of 16
Personal Liability
ARTICLE V. SHAREHOLDERS' VOTING POWERS AND MEETINGS 17
Section 5.1 Voting Powers 17
Section 5.2 Meetings 17
Section 5.3 Record Dates 18
Section 5.4 Quorum and Required Vote 18
Section 5.5 Action by Written Consent 18
Section 5.6 Inspection of Records 19
Section 5.7 Additional Provisions 19
ARTICLE VI. LIMITATION OF LIABILITY; INDEMNIFICATION 20
Section 6.1 Trustees, Shareholders, etc. Not
Personally Liable; Notice 20
Section 6.2 Trustee's Good Faith Action; Expert 20
Advice; No Bond of Surety
Section 6.3 Indemnification of Shareholders 21
Section 6.4 Indemnification of Trustees, Officers,
etc. 21
Section 6.5 Compromise Payment 22
Section 6.6 Indemnification Not Exclusive, etc. 23
Section 6.7 Liability of Third Persons Dealing with 23
Trustees
ARTICLE VII. MISCELLANEOUS 23
Section 7.1 Duration and Termination of Trust 23
(iii)
5
Section 7.2 Reorganization 24
Section 7.3 Amendments 24
Section 7.4 Resident Agent 24
Section 7.5 Filing of Copies; References; Headings 25
Section 7.6 Applicable Law 25
(iv)
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THE GW INVESTMENT FUNDS
CROSS-REFERENCE SHEET
Pursuant to CMR 116.00:
116.03 (a) Name of organization or trust:
The GW Investment Funds
(b) Date of organization:
February 22, 1989
(c) Names and address of the trustees:
Xxxxxxxx X. Xxxxxxxx
Xxx Xxxxxxxx Xxxxx - 0xx Xxxxx
Xxxxxx, XX 00000
Xxxxx Xxxxxx
Xxx Xxxxxxxx Xxxxx - 0xx Xxxxx
Xxxxxx, XX 00000
(d) Original signatures of all trustees:
See page 26.
(e) Principal place of business:
Xxx Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
(f) Statement that beneficial interest is
divided into transferable certificates of
participation or shares;
See Section 4.1, pages 10-11.
(g) Ability to merge:
See Section 7.2, page 24.
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THE GW INVESTMENT FUNDS
MASTER TRUST AGREEMENT
AGREEMENT AND DECLARATION OF TRUST made at Boston,
Massachusetts this 22nd day of February, 1989, by the Trustees hereunder, and
by the holders of shares of beneficial interest to be issued hereunder as
hereinafter provided.
WITNESSETH
WHEREAS this Trust has been formed to carry on the business of an investment
company; and
WHEREAS this Trust is authorized to issue its shares of
beneficial interest in separate series, each separate series to be a Sub-Trust
hereunder, all in accordance with the provisions hereinafter set forth; and
WHEREAS the Trustees 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 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 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 of beneficial interest in this Trust or Sub-Trusts
created hereunder as hereinafter set forth.
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ARTICLE I
NAME AND DEFINITIONS
Section 1.1 Name. This Trust shall be known as "The GW
Investment Funds" and the Trustees shall conduct the business of the Trust
under that name or any other name or names as they may from time to time
determine.
Section 1.2 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 Trust Agreement, as amended from time to time,
inclusive of each and every Sub-Trust established hereunder;
(b) "Trustees" refers to the Trustees of the Trust and of
each Sub-Trust hereunder named herein or elected in accordance with Article
III;
(c) "Shares" refers to the transferable units of interest
into which the beneficial interest in the Trust and each Sub-Trust of the
Trust (as the context may require) shall be divided from time to time;
(d) "Series" refers to Series of Shares established and
designated under or in accordance with the provisions of Article IV, each of
which Series shall be a Sub-Trust of the Trust;
(e) "Shareholder" means a record owner of Shares;
(f) The "1940 Act" refers to the Investment Company Act
of 1940 and the Rules and Regulations thereunder, all as amended from time to
time;
(g) The term "Commission" shall have the meaning given it
in the 1940 Act;
(h) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust as amended or restated from time to time; and
(i) "By-Laws" shall mean the By-Laws of the Trust as
amended from time to time.
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ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to operate as an investment
company and to offer Shareholders of the Trust and each Sub-Trust of the Trust
one or more investment programs primarily in securities and debt instruments.
ARTICLE III
THE TRUSTEES
Section 3.1 Number, Designation, Election, Term, etc.
(a) Initial Trustees. Upon the execution of this
Declaration of Trust or a counterpart hereof or some other writing in which he
accepts such Trusteeship and agrees to the provisions hereof, each of Xxxxx
Xxxxxx and Xxxxxxxx X. Xxxxxxxx, shall become a Trustee hereof and of each
Sub-Trust hereunder.
(b) Number. The Trustees serving as such, whether named
above or hereafter becoming a Trustee, may increase or decrease (to not less
than two) the number of Trustees to a number other than the number theretofore
determined. No decrease in the number of Trustees shall have the effect of
removing any Trustee from office prior to the expiration of his term, but the
number of Trustees may be decreased in conjunction with the removal of a
Trustee pursuant to subsection (e) of this Section 3.1.
(c) Election and Term. The Trustees shall be elected by
the Shareholders of the Trust at the first meeting of Shareholders following
the initial public offering of shares of the Trust. Each Trustee, whether
named above or hereafter becoming a Trustee, shall serve as a Trustee of the
Trust and of each Sub-Trust hereunder during the lifetime of this Trust and
until its termination as hereinafter provided except as such Trustee sooner
dies, resigns or is removed. Subject to Section 16(a) of the 1940 Act, the
Trustees may elect their own successors and may, pursuant to Section 3.1(f)
hereof, appoint Trustees to fill vacancies.
(d) Resignation and Retirement. Any Trustee may resign
his trust or retire as a Trustee, by written instrument signed by him and
delivered to the other Trustees or to any officer of the Trust, and such
resignation or retirement shall take effect upon such delivery or upon such
later date as is specified in such instrument and shall be effective as to the
Trust and each Sub-Trust hereunder.
(e) Removal. Any Trustee may be removed with or without
cause at any time:
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(i) by written instrument, signed by at least two-thirds of the number of
Trustees prior to such removal, specifying the date upon which such removal
shall become effective; or (ii) by vote of Shareholders holding not less than
two-thirds of the Shares then outstanding, cast in person or by proxy at any
meeting called for the purpose; or (iii) by a written declaration signed by
Shareholders holding not less than two-thirds of the Shares then outstanding
and filed with the Trust's Custodian. Any such removal shall be effective as
to the Trust and each Sub-Trust hereunder.
(f) Vacancies. Any vacancy or anticipated vacancy
resulting from any reason, including without limitation the death, resignation,
retirement, removal or incapacity of any of the Trustees, or resulting from an
increase in the number of Trustees by the other Trustees may (but so long as
there are at least two remaining Trustees, need not unless required by the 0000
Xxx) be filled by a majority of the remaining Trustees, subject to the
provisions of Section 16(a) of the 1940 Act, through the appointment in writing
of such other person as such remaining Trustees in their discretion shall
determine and such appointment shall be effective upon the written acceptance
of the person named therein to serve as a Trustee and agreement by such person
to be bound by the provisions of this Declaration of Trust, except that any
such appointment in anticipation of a vacancy to occur by reason of retirement,
resignation, or increase in number of Trustees to be effective at a later date
shall become effective only at or after the effective date of said retirement,
resignation, or increase in number of Trustees. As soon as any Trustee so
appointed shall have accepted such appointment and shall have agreed in writing
to be bound by this Declaration of Trust and the appointment is effective, the
Trust estate shall vest in the new Trustee, together with the continuing
Trustees, without any further act or conveyance.
(g) Effect of Death, Resignation, etc. The death,
resignation, retirement, removal, or incapacity of the Trustees, or any one of
them, shall not operate to annul or terminate the Trust or any Sub-Trust
hereunder or to revoke or terminate any existing agency or contract created or
entered into pursuant to the terms of this Declaration of Trust.
(h) No Accounting. Except to the extent required by the
1940 Act or under circumstances which would justify his removal for cause, no
person ceasing to be a Trustee as a result of his death, resignation,
retirement, removal or incapacity (nor the estate of any such person) shall be
required to make an accounting to the Shareholders or remaining Trustees upon
such cessation.
Section 3.2. Powers of Trustees. 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 and the purpose of the Trust. Without limiting the
foregoing, the Trustees may adopt By-Laws not inconsistent with this
Declaration of Trust providing for the conduct of the business and affairs of
the Trust and may amend and repeal them to the extent that such By-Laws do not
reserve that right to the Shareholders; they may from time to time in
accordance with the provisions of Section 4.1 hereof establish Sub-Trusts, each
such Sub-Trust to operate as a separate and distinct investment medium and with
separately defined investment objectives and policies and distinct investment
purpose; they may as they
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consider appropriate elect and remove officers and appoint and terminate agents
and consultants and hire and terminate employees, any one or more of the
foregoing of whom may be a Trustee, and may provide for the compensation of all
of the foregoing; they may appoint from their own number, and terminate, any
one or more committees consisting of two or more Trustees, including without
implied limitation an executive committee, which may, when the Trustees are not
in session and subject to the 1940 Act, exercise some or all of the power and
authority of the Trustees as the Trustees may determine; in accordance with
Section 3.3 they may employ one or more advisers, administrators, distributor,
depositories and custodians and may authorize any depository or custodian to
employ subcustodians or agents and to deposit all or any part of such assets in
a system or systems for the central handling of securities and debt
instruments, retain transfer, dividend, accounting or Shareholder servicing
agents or any of the foregoing, provide for the distribution of Shares by the
Trust through one or more distributors, principal underwriters or otherwise,
set record dates or times for the determination of Shareholders or various of
them with respect to various matters; they may compensate or provide for the
compensation of the Trustees, officers, advisers, administrators, custodians,
other agents, consultants and employees of the Trust or the Trustees on such
terms as they deem appropriate; and in general they may delegate to any officer
of the Trust, to any committee of the Trustees and to any employee, adviser,
administrator, distributor, depository, custodian, transfer and dividend
disbursing agent, or any other agent or consultant of the Trust such authority,
powers, functions and duties as they consider desirable or appropriate for the
conduct of the business and affairs of the Trust, including without implied
limitation the power and authority to act in the name of the Trust and of the
Trustees, to sign documents and to act as attorney-in-fact for the Trustees.
Without limiting the foregoing and to the extent not
inconsistent with the 1940 Act or other applicable law, the Trustees shall have
power and authority for and on behalf of the Trust and each separate Sub-Trust
established hereunder:
(a) Investments. To invest and reinvest cash and other
property, and to hold cash or other property uninvested without in any event
being bound or limited by any present or future law or custom in regard to
investments by trustees;
(b) Disposition of Assets. To sell, exchange, lend,
pledge, mortgage, hypothecate, write options on and lease any or all of the
assets of the Trust;
(c) Ownership Powers. To vote or give assent, or
exercise any rights of ownership, with respect to stock or other securities,
debt instruments 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, debt instruments or property as the Trustees shall deem proper;
(d) Subscription. To exercise powers and rights of
subscription or otherwise which in any manner arise out of ownership of
securities or debt instruments;
(e) Form of Holding. To hold any security, debt
instrument or property in a
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form not indicating any trust, whether in bearer, unregistered or other
negotiable form, or in the name of the Trustees or of the Trust or of any
Sub-Trust or in the name of a custodian, subcustodian or other depository or a
nominee or nominees or otherwise;
(f) Reorganization, etc. To consent to or participate in
any plan for the reorganization, consolidation or merger of any corporation or
issuer, any security or debt instrument of which is or was 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 or debt instrument held in the Trust;
(g) Voting Trusts, etc. To join with other holders of
any securities or debt instruments in acting through a committee, depository,
voting trustee or otherwise, and in that connection to deposit any security or
debt instrument with, or transfer any security or debt instrument to, any
committee, depository or trustee, and to delegate to them such power and
authority with relation to any security or debt instrument (whether or not so
deposited or transferred) as the Trustees shall deem proper, and to agree to
pay, and to pay, such portion of the expenses and compensation of such
committee, depository or trustee as the Trustees shall deem proper;
(h) Compromise. To compromise, arbitrate or otherwise
adjust claims in favor of or against the Trust or any Sub-Trust of any matter
in controversy, including but not limited to claims for taxes;
(i) Partnerships, etc. To enter into joint ventures,
general or limited partnerships and any other combinations or associations;
(j) Borrowing and Security. To borrow funds and to
mortgage and pledge the assets of the Trust or any part thereof to secure
obligations arising in connection with such borrowing;
(k) Guarantees, etc. To endorse or guarantee the payment
of any notes or other obligations of any person; to make contracts of guaranty
or suretyship, or otherwise assume liability for payment thereof; and to
mortgage and pledge the Trust property or any part thereof to secure any of or
all such obligations;
(l) Insurance. To purchase and pay for entirely out of
Trust property such insurance as they may deem necessary or appropriate for the
conduct of the business, including, without limitation, insurance policies
insuring the assets of the Trust and payment of distributions and principal on
its portfolio investments, and insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, consultants, investment advisers,
managers, administrators, distributors, principal underwriters, or independent
contractors, or any thereof (or any person connected therewith), of the Trust
individually against all claims and liabilities of every nature arising by
reason of holding, being or having held any such office or position, or by
reason of any action alleged to have been taken or omitted by any such person
in any such capacity, including
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any action taken or omitted that may be determined to constitute negligence,
whether or not the Trust would have the power to indemnify such person against
such liability; and
Except as otherwise provided by the 1940 Act or other
applicable law, this Declaration of Trust or the By-Laws, any action to be
taken by the Trustees on behalf of the Trust or any Sub-Trust may be taken by a
majority of the Trustees present at a meeting of Trustees (a quorum, consisting
of at least a majority of the Trustees then in office, being present), within
or without Massachusetts, including any meeting held by means of a conference
telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other at the same time and
participation by such means shall constitute presence in person at a meeting,
or by written consents of a majority of the Trustees then in office (or such
larger or different number as may be required by the 1940 Act or other
applicable law).
Section 3.3 Certain Contracts. Subject to compliance with
the provisions of the 1940 Act, but notwithstanding any limitations of present
and future law or custom in regard to delegation of powers by trustees
generally, the Trustees may, at any time and from time to time and without
limiting the generality of their powers and authority otherwise set forth
herein, enter into one or more contracts with any one or more corporations,
trusts, associations, partnerships, limited partnerships, other types of
organizations, or individuals ("Contracting Party"), to provide for the
performance and assumption of some or all of the following services, duties and
responsibilities to, for or on behalf of the Trust and/or any Sub-Trust, and/or
the Trustees, and to provide for the performance and assumption of such other
services, duties and responsibilities in addition to those set forth below as
the Trustees may determine appropriate:
(a) Advisory. Subject to the general supervision of the
Trustees and in conformity with the stated policy of the Trustees with respect
to the investments of the Trust or of the assets belonging to any Sub-Trust of
the Trust (as that phrase is defined in subsection (a) of Section 4.2), to
manage such investments and assets, make investment decisions with respect
thereto, and to place purchase and sale orders for portfolio transactions
relating to such investments and assets;
(b) Administration. Subject to the general supervision
of the Trustees and in conformity with any policies of the Trustees with
respect to the operations of the Trust and each Sub-Trust, to supervise all or
any part of the operations of the Trust and each Sub-Trust, and to provide all
or any part of the administrative and clerical personnel, office space and
office equipment and services appropriate for the efficient administration and
operations of the Trust and each Sub-Trust;
(c) Distribution. To distribute the Shares of the Trust
and each Sub-Trust, to be principal underwriter of such Shares, and/or to act
as agent of the Trust and each Sub-Trust in the sale of Shares and the
acceptance or rejection of orders for the purchase of Shares;
(d) Custodian and Depository. To act as depository for
and to maintain custody of the property of the Trust and each Sub- Trust and
accounting records in connection
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therewith;
(e) Transfer and Dividend Disbursing Agency. To maintain
records of the ownership of outstanding Shares, the issuance and redemption and
the transfer thereof, and to disburse any dividends declared by the Trustees
and in accordance with the policies of the Trustees and/or the instructions of
any particular Shareholder to reinvest any such dividends;
(f) Shareholder Servicing. To provide service with
respect to the relationship of the Trust and its Shareholders, records with
respect to Shareholders and their Shares, and similar matters; and
(9) Accounting. To handle all or any part of the
accounting responsibilities, whether with respect to the Trust's properties,
Shareholders or otherwise.
The same person may be the Contracting Party for some or all
of the services, duties and responsibilities to, for and of the Trust and/or
the Trustees, and the contracts with respect thereto may contain such terms
interpretive of or in addition to the delineation of the services, duties and
responsibilities provided for, including provisions that are not inconsistent
with the 1940 Act relating to the standard of duty of and the rights to
indemnification of the Contracting Party and others, as the Trustees may
determine. Nothing herein shall preclude, prevent or limit the Trust or a
Contracting Party from entering into sub-contractual arrangements relative to
any of the matters referred to in Sections 3.3(a) through (g) hereof.
The fact that:
(i) any of the Shareholders, Trustees, or
officers of the Trust is a shareholder, director, officer,
partner, trustee, employee, manager, adviser, principal
underwriter or distributor or agent of or for any Contracting
Party, or of or for any parent or affiliate of any Contracting
Party or that the Contracting Party or any parent or affiliate
thereof is a Shareholder or has an interest in the Trust or
any Sub-Trust, or that
(ii) any Contracting Party may have a contract
providing for the rendering of any similar services to one or
more other corporations, trusts, associations, partnerships,
limited partnerships or other organizations, or have other
business or interests,
shall not affect the validity of any contract for the performance and
assumption of services, duties and responsibilities to, for or of the Trust or
any Sub-Trust and/or the Trustees 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, any Sub-Trust or its Shareholders,
provided that in the case of any relationship or interest referred to in the
preceding clause (i) on the part of any Trustee or officer of the Trust either
(x) the material facts as to such relationship or interest have been disclosed
to or are known by the Trustees not having any such relationship or interest
and the
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contract involved is approved in good faith by a majority of such Trustees not
having any such relationship or interest (even though such unrelated or
disinterested Trustees are less than a quorum of all of the Trustees), (y) the
material facts as to such relationship or interest and as to the contract have
been disclosed to or are known by the Shareholders entitled to vote thereon and
the contract involved is specifically approved in good faith by vote of the
Shareholders, or (z) the specific contract involved is fair to the Trust as of
the time it is authorized, approved or ratified by the Trustees or by the
Shareholders.
Section 3.4 Payment of Trust Expenses and Compensation of
Trustees. The Trustees are authorized to pay or to cause to be paid out of the
principal or income of the Trust or any Sub-Trust, or partly out of principal
and partly out of income, and to charge or allocate the same to, between or
among such one or more of the Sub-Trusts that may be established and designated
pursuant to Article IV, as the Trustees deem fair and as is consistent with
applicable federal and state law, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the Trust or any Sub-Trust,
or in connection with the management thereof, including, but not limited to,
the Trustees' compensation and such expenses and charges for the services of
the Trust's officers, employees, investment adviser, administrator,
distributor, principal underwriter, auditor, counsel, depository, custodian,
transfer agent, dividend disbursing agent, accounting agent, Shareholder
servicing agent, and such other agents, consultants, and independent
contractors and such other expenses and charges as the Trustees may deem
necessary or proper to incur. Without limiting the generality of any other
provision hereof, the Trustees shall be entitled to reasonable compensation
from the Trust for their services as Trustees and may fix the amount of such
compensation.
Section 3.5 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.
ARTICLE IV
SHARES
Section 4.1 Description of Shares. The beneficial interest
in the Trust shall be divided into Shares, all without par value and of one
class, but the Trustees shall have the authority from time to time to divide
the class of Shares into two or more Series of Shares (each of which Series of
Shares shall be a separate and distinct Sub-Trust of the Trust, including
without limitation those Sub-Trusts specifically established and designated in
section 4.2), as they deem necessary or desirable. Each Sub-Trust shall be
deemed to be a separate trust established under, and subject to the terms of,
this Declaration of Trust. The Trustees shall have exclusive power without the
requirement of shareholder approval to establish and designate such separate
and distinct Sub-Trusts, and to fix and determine the relative rights and
preferences as between the shares of the separate Sub-Trusts as to right of
redemption and the price, terms and manner of redemption, special and relative
rights as to dividends and other distributions and on liquidation, sinking or
purchase fund provisions, conversion rights, and conditions under which the
several Sub-Trusts shall have separate voting rights or no voting rights.
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The number of authorized Shares and the number of Shares of
each Sub-Trust that may be issued is unlimited, and the Trustees may issue
Shares of any Sub-Trust for such consideration and on such terms as they may
determine (or for no consideration if pursuant to a Share dividend or
split-up), all without action or approval of the Shareholders. All Shares when
so issued on the terms determined by the Trustees shall be fully paid and
non-assessable (but may be subject to mandatory contribution back to the Trust
as provided in subsection (h) of Section 4.2). The Trustees may classify or
reclassify any unissued Shares or any Shares previously issued and reacquired
of any Sub-Trust into one or more Sub-Trusts that may be established and
designated from time to time. The Trustees may hold as treasury Shares,
reissue for such consideration and on such terms as they may determine, or
cancel, at their discretion from time to time, any Shares of any Sub-Trust as
reacquired by the Trust.
The Trustees may from time to time close the transfer books or
establish record dates and times for the purposes of determining the holders of
Shares entitled to be treated as such, to the extent provided or referred to in
Section 5.3.
The establishment and designation of any Sub-Trust in addition
to that established and designated in Section 4.2 shall be effective upon the
execution by a majority of the then Trustees of an instrument setting forth
such establishment and designation and the relative rights and preferences of
the Shares of such Sub-Trust, or as otherwise provided in such instrument. At
any time that there are no Shares outstanding of any particular Sub-Trust
previously established and designated the Trustees may by an instrument
executed by a majority of their number abolish that Sub-Trust 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.
Any Trustee, officer or other agent of the Trust, and any
organization in which any such person is interested may acquire, own, hold and
dispose of Shares of any Sub-Trust of the Trust to the same extent as if such
person were not a Trustee, officer or other agent of the Trust; and the Trust
may issue and sell or cause to be issued and sold and may purchase Shares of
any Sub-Trust from any such person or any such organization subject only to the
general limitations, restrictions or other provisions applicable to the sale or
purchase of Shares of such Sub-Trust generally.
Section 4.2 Establishment and Designation of Sub-Trusts.
Without limiting the authority of the Trustees set forth in Section 4.1 to
establish and designate any further Sub-Trusts, the Trustees hereby establish
and designate five Sub-Trusts: the "U.S. Government Money Market Fund", the
"California Tax Exempt Money Market Fund", the "Federal Tax Exempt Money Market
Fund", the "U.S. Government Securities Fund" and the "California Tax Exempt
Income Fund." The Shares of each of the U.S. Government Money Market Fund, the
California Tax Exempt Money Market Fund, the Federal Tax Exempt Money Market
Fund, the U.S. Government Securities Fund and the California Tax Exempt Income
Fund and any Shares of any further Sub-Trusts that may from time to time be
established and designated by the Trustees shall (unless the Trustees otherwise
determine with respect to some further Sub-Trust at the time of establishing
and designating the same) have the following relative rights and preferences:
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(a) Assets Belonging to Sub-Trusts. All consideration
received by the Trust for the issue or sale of Shares of a particular
Sub-Trust, together with all assets in which such consideration is invested or
reinvested, all income, earnings, profits, and proceeds thereof, including any
proceeds derived from the sale, exchange or liquidation of such assets, and any
funds or payments derived from any reinvestment of such proceeds in whatever
form the same may be, shall be held by the Trustees in trust for the benefit of
the holders of Shares of that Sub-Trust and shall irrevocably belong to that
Sub-Trust for all purposes, and shall be so recorded upon the books of account
of the Trust. Such consideration, assets, income, earnings, profits, and
proceeds thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds, in whatever form the same may be, together with
any General Items allocated to that Sub-Trust as provided in the following
sentence, are herein referred to as "assets belonging to" that Sub-Trust. In
the event that there are any assets, income, earnings, profits, and proceeds
thereof, funds, or payments which are not readily identifiable as belonging to
any particular Sub-Trust (collectively "General Items"), the Trustees shall
allocate such General Items to and among any one or more of the Sub-Trusts
established and designated from time to time in such manner and on such basis
as they, in their sole discretion, deem fair and equitable; and any General
Items so allocated to a particular Sub-Trust shall belong to that Sub-Trust.
Each such allocation by the Trustees shall be conclusive and binding upon the
Shareholders of all Sub-Trusts for all purposes.
(b) Liabilities Belonging to Sub-Trusts. The assets
belonging to each particular Sub-Trust shall be charged with the liabilities in
respect of that Sub-Trust and all expenses, costs, charges and reserves
attributable to that Sub-Trust, and any general liabilities, expenses, costs,
charges or reserves of the Trust which are not readily identifiable as
belonging to any particular Sub-Trust shall be allocated and charged by the
Trustees to and among any one or more of the Sub-Trusts established and
designated from time to time in such manner and on such basis as the Trustees
in their sole discretion deem fair and equitable. The liabilities, expenses,
costs, charges and reserves allocated and so charged to a Sub-Trust are herein
referred to as "liabilities belonging to" that Sub-Trust. Each allocation of
liabilities, expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the Shareholders of all Sub-Trusts for all
purposes. Any creditor of any Sub-Trust may look only to the assets of that
Sub-Trust to satisfy such creditor's debt.
The Trustees shall have full discretion, to the extent not
inconsistent with the 1940 Act, to determine which items shall be treated as
income and which items as capital; and each such determination and allocation
shall be conclusive and binding upon the Shareholders.
(c) Dividends. Dividends and distributions on Shares of
a particular Sub-Trust may be paid with such frequency as the Trustees may
determine; which may be daily or otherwise pursuant to a standing resolution or
resolutions adopted only once or with such frequency as the Trustees may
determine, to the holders of Shares of that Sub-Trust, from such of the income
and capital gains, accrued or realized, from the assets belonging to that
Sub-Trust, as the Trustees may determine, after providing for actual and
accrued liabilities belonging to that Sub-Trust. All dividends and
distributions on Shares of a particular Sub-Trust shall be distributed pro rata
to the
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holders of Shares of that Sub-Trust in proportion to the number of Shares of
that Sub-Trust held by such holders at the date and time of record established
for the payment of such dividends or distributions, except that in connection
with any dividend or distribution program or procedure the Trustees may
determine that no dividend or distribution shall be payable on Shares as to
which the Shareholder's purchase order and/or payment have not been received by
the time or times established by the Trustees under such program or procedure.
Such dividends and distributions may be made in cash or Shares of that
Sub-Trust or a combination thereof as determined by the Trustees or pursuant to
any program that the Trustees may have in effect at the time for the election
by each Shareholder of the mode of the making of such dividend or distribution
to that Shareholder. Any such dividend or distribution paid in Shares will be
paid at the net asset value thereof as determined in accordance with subsection
(h) of Section 4.2.
(d) Liquidation. In the event of the liquidation or
dissolution of the Trust, the Shareholders of each Sub-Trust that has been
established and designated shall be entitled to receive, when and as declared
by the Trustees, the excess of the assets belonging to that Sub-Trust over the
liabilities belonging to that Sub-Trust. The assets so distributable to the
Shareholders of any particular Sub-Trust shall be distributed among such
Shareholders in proportion to the number of Shares of that Sub-Trust held by
them and recorded on the books of the Trust. The liquidation of any particular
Sub-Trust may be authorized by vote of a majority of the Trustees then in
office subject to the approval of a majority of the outstanding voting Shares
of that Sub-Trust, as defined in the 1940 Act.
(e) Voting. On each matter submitted to a vote of the
Shareholders, each holder of a Share of each Sub-Trust shall be entitled to one
vote for each whole Share and to a proportionate fractional vote for each
fractional Share standing in his name on the books of the Trust. The Trustees
shall cause each matter required or permitted to be voted upon at a meeting or
by written consent of Shareholders to be submitted to a vote of all classes of
outstanding Shares entitled to vote thereon (irrespective of class), unless the
1940 Act or other applicable law or regulations require that the actions of the
Shareholders be taken by a separate vote of one or more classes, or the
Trustees determine that any matter to be submitted to a vote of Shareholders
affects only the rights or interests of one or more (but not all) classes of
outstanding Shares, in which case only the Shareholders of the class or classes
so affected shall be entitled to vote thereon.
(f) Redemption by Shareholder. Each holder of Shares of
a particular Sub-Trust shall have the right at such times as may be permitted
by the Trust, but no less frequently than once each week, to require the Trust
to redeem all or any part of his Shares of that Sub-Trust at a redemption price
equal to the net asset value per Share of that Sub-Trust next determined in
accordance with subsection (h) of this Section 4.2 after the Shares are
properly tendered for redemption. Payment of the redemption price shall be in
cash; provided, however, that if the Trustees determine, which determination
shall be conclusive, that conditions exist which make payment wholly in cash
unwise or undesirable, the Trust may make payment wholly or partly in
securities or other assets belonging to the Sub-Trust of which the Shares being
redeemed are part at the value of such securities or assets used in such
determination of net asset value.
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Notwithstanding the foregoing, the Trust may postpone payment
of the redemption price and may suspend the right of the holders of Shares of
any Sub-Trust to require the Trust to redeem Shares of that Sub-Trust during
any period or at any time when and to the extent permissible under the 1940
Act.
(g) Redemption by Trust. Each Share of each Sub-Trust
that has been established and designated is subject to redemption by the Trust
at the redemption price which would be applicable if such Share was then being
redeemed by the Shareholder pursuant to subsection (f) of this Section 4.2:
(a) at any time, if the Trustees determine in their sole discretion that
failure to so redeem may have materially adverse consequences to the holders of
the Shares of the Trust or any Sub-Trust thereof, or (b) upon such other
conditions as may from time to time be determined by the Trustees and set forth
in the then current Prospectus of the Trust with respect to maintenance of
Shareholder accounts of a minimum amount. Upon such redemption the holders of
the Shares so redeemed shall have no further right with respect thereto other
than to receive payment of such redemption price.
(h) Net Asset Value. The net asset value per Share of
any Sub-Trust shall be the quotient obtained by dividing the value of the net
assets of that Sub-Trust (being the value of the assets belonging to that
Sub-Trust less the liabilities belonging to that Sub-Trust) by the total
number of Shares of that Sub-Trust outstanding, all determined in accordance
with the methods and procedures, including without limitation those with
respect to rounding, established by the Trustees from time to time.
The Trustees may determine to maintain the net asset value per
Share of any Sub-Trust at a designated constant dollar amount and in connection
therewith may adopt procedures not inconsistent with the 1940 Act for the
continuing declarations of income attributable to that Sub-Trust as dividends
payable in additional Shares of that Sub-Trust at the designated constant
dollar amount and for the handling of any losses attributable to that
Sub-Trust. Such procedures may provide that in the event of any loss each
Shareholder shall be deemed to have contributed to the capital of the Trust
attributable to that Sub-Trust his pro rata portion of the total number of
Shares required to be cancelled in order to permit the net asset value per
Share of that Sub-Trust to be maintained, after reflecting such loss, at the
designated constant dollar amount. Each Shareholder of the Trust shall be
deemed to have agreed, by his investment in any Sub-Trust with respect to which
the Trustees shall have adopted any such procedure, to make the contribution
referred to in the preceding sentence in the event of any such loss.
(i) Transfer. All Shares of each particular Sub-Trust
shall be transferable, but transfers of Shares of a particular Sub-Trust will
be recorded on the Share transfer records of the Trust applicable to that
Sub-Trust only at such times as Shareholders shall have the right to require
the Trust to redeem Shares of that Sub-Trust and at such other times as may be
permitted by the Trustees.
(j) Equality. All Shares of each particular Sub-Trust
shall represent an equal proportionate interest in the assets belonging to that
Sub-Trust (subject to the liabilities belonging
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to that Sub-Trust), and each Share of any particular Sub-Trust shall be equal
to each other Share of that Sub-Trust; but the provisions of this sentence
shall not restrict any distinctions permissible under subsection (c) of this
Section 4.2 that may exist with respect to dividends and distributions on
Shares of the same Sub-Trust. The Trustees may from time to time divide or
combine the Shares of any particular Sub-Trust into a greater or lesser number
of Shares of that Sub-Trust without thereby changing the proportionate
beneficial interest in the assets belonging to that Sub-Trust or in any way
affecting the rights of Shares of any other Sub-Trust.
(k) Fractions. Any fractional Share of any Sub-Trust, if
any such fractional Share is outstanding, shall carry proportionately all the
rights and obligations of a whole Share of that Sub-Trust, including rights and
obligations with respect to voting, receipt of dividends and distributions,
redemption of Shares, and liquidation of the Trust.
(l) Conversion Rights. Subject to compliance with the
requirements of the 1940 Act, the Trustees shall have the authority to provide
that holders of Shares of any Sub-Trust shall have the right to convert said
Shares into shares of one or more other Sub-Trust in accordance with such
requirements and procedures as may be established by the Trustees.
Section 4.3 Ownership of Shares. The ownership of Shares
shall be recorded on the books of the Trust or of a transfer or similar agent
for the Trust, which books shall be maintained separately for the Shares of
each Sub-Trust that has been established and designated. No certificate
certifying the ownership of Shares need 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 issuance of Shares certificates, the use of
facsimile signatures, the transfer of Shares and similar matters. The record
books of the Trust as kept by the Trust or any transfer or similar agent, as
the case may be, shall be conclusive as to who are the Shareholders and as to
the number of Shares of each Sub-Trust held from time to time by each such
Shareholder.
Section 4.4 Investments in the Trust. The Trustees may
accept investments in the Trust and each Sub-Trust thereof from such persons
and on such terms and for such consideration, not inconsistent with the
provisions of the 1940 Act, as they from time to time authorize. The Trustees
may authorize any distributor, principal underwriter, custodian, transfer agent
or other person to accept orders for the purchase of Shares that conform to
such authorized terms and to reject any purchase orders for Shares whether or
not conforming to such authorized terms.
Section 4.5 No Pre-emptive Rights. Shareholders shall have
no pre-emptive or other right to subscribe to any additional Shares or other
securities issued by the Trust.
Section 4.6 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 Trust or
any Sub-Trust
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thereof nor entitle the representative of any deceased Shareholder to an
accounting or to take any action in court or elsewhere against the Trust or the
Trustees, but only to the rights of said decedent under this 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
Shareholder, 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.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 5.1 Voting Powers. The Shareholders shall have power
to vote only (i) for the election or removal of Trustees as provided in Section
3.1, (ii) with respect to any contract with a Contracting Party as provided in
Section 3.3 as to which Shareholder approval is required by the 1940 Act, (iii)
with respect to any termination or reorganization of the Trust or any Sub-Trust
to the extent and as provided in Sections 7.1 and 7.2, (iv) with respect to any
amendment of this Declaration of Trust to the extent and as provided in Section
7.3, (v) to the same extent as the stockholders of a Massachusetts business
corporation as to whether or not a court action, proceeding or claim should or
should not be brought or maintained derivatively or as a class action on behalf
of the Trust or any Sub-Trust thereof or the Shareholders (provided, however,
that a shareholder of a particular Sub-Trust shall not be entitled to a
derivative or class action on behalf of any other Sub-Trust (or shareholder of
any other Sub-Trust) of the Trust) and (vi) with respect to such additional
matters relating to the Trust as may be required by the 1940 Act, this
Declaration of Trust, the By-Laws or any registration of the Trust with the
Commission (or any successor agency) or any state, or as the Trustees may
consider necessary or desirable. 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. Until Shares are issued, the
Trustees may exercise all rights of Shareholders and may take any action
required by law, this Declaration of Trust or the By-Laws to be taken by
Shareholders.
Section 5.2 Meetings. Meetings of Shareholders may be called
by the Trustees from time to time for the purpose of taking action upon any
matter requiring the vote or authority of the Shareholders as herein provided
or upon any other matter deemed by the Trustees to be necessary or desirable.
Written notice of any meeting of Shareholders shall be given or caused to be
given by the Trustees by mailing such notice at least seven days before such
meeting, postage prepaid, stating the time, place and purpose of the meeting,
to each Shareholder at the
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Shareholder's address as it appears on the records of the Trust. The Trustees
shall promptly call and give notice of a meeting of Shareholders for the
purpose of voting upon removal of any Trustee of the Trust when requested to do
so in writing by Shareholders holding not less than 10% of the Shares then
outstanding. If the Trustees fail to call or give notice of any meeting of
Shareholders for a period of 30 days after written application by Shareholders
holding at least 10% of the Shares then outstanding requesting a meeting be
called for any other purpose requiring action by the Shareholders as provided
herein or in the By-Laws, then Shareholders holding at least 10% of the Shares
then outstanding may call and give notice of such meeting, and thereupon the
meeting shall be held in the manner provided for herein in case of call thereof
by the Trustees.
Section 5.3 Record Dates. For the purpose of determining the
Shareholders who are entitled to vote or act at any meeting or any adjournment
thereof, or who are entitled to participate in any dividend or distribution, or
for the purpose of any other action, the Trustees may from time to time close
the transfer books for such period, not exceeding 30 days (except at or in
connection with the termination of the Trust), as the Trustees may determine;
or without closing the transfer books the Trustees may fix a date and time not
more than 60 days prior to the date of any meeting of Shareholders or other
action as the date and time of record for the determination of Shareholders
entitled to vote at such meeting or any adjournment thereof or to be treated as
Shareholders of record for purposes of such other action, and any shareholder
who was a Shareholder at the date and time so fixed shall be entitled to vote
at such meeting or any adjournment thereof or to be treated as a Shareholder of
record for purposes of such other action, even though he has since that date
and time disposed of his Shares, and no Shareholder becoming such after that
date and time shall be so entitled to vote at such meeting or any adjournment
thereof or to be treated as a Shareholder of record for purposes of such other
action.
Section 5.4 Quorum and Required Vote. A majority of the
Shares entitled to vote shall be a quorum for the transaction of business at a
Shareholders' meeting, but any lesser number shall be sufficient for
adjournments. Any adjourned session or sessions may be held, within a
reasonable time after the date set for the original meeting without the
necessity of further notice. A majority of the Shares voted, at a meeting of
which a quorum is present shall decide any questions and a plurality shall
elect a Trustee, except when a different vote is required or permitted by any
provision of the 1940 Act or other applicable law or by this Declaration of
Trust or the By-Laws.
Section 5.5 Action by Written Consent. Subject to the
provisions of the 1940 Act and other applicable law, any action taken by
Shareholders may be taken without a meeting if a majority of Shareholders
entitled to vote on the matter (or such larger proportion thereof as shall be
required by the 1940 Act or by any express provision of this Declaration of
Trust or the By-Laws) consent to the action in writing and such written
consents are filed with the records of the meetings of Shareholders. Such
consent shall be treated for all purposes as a vote taken at a meeting of
Shareholders.
Section 5.6 Inspection of Records. The records of the Trust
shall be open to
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inspection by Shareholders to the same extent as is permitted stockholders of a
Massachusetts business corporation under the Massachusetts Business Corporation
Law.
Section 5.7 Additional Provisions. The By-Laws may include
further provisions for Shareholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
ARTICLE VI
LIMITATION OF LIABILITY; INDEMNIFICATION
Section 6.1 Trustees, Shareholders, etc. Not Personally
Liable; Notice. All persons extending credit to, contracting with or having
any claim against the Trust shall look only to the assets of the Sub-Trust with
which such person dealt for payment under such credit, contract or claim; and
neither the Shareholders of any Sub-Trust nor the Trustees nor any of the
Trust's officers, employees or agents, whether past, present or future, nor any
other Sub-Trust shall be personally liable therefor. Every note, bond,
contract, instrument, certificate or undertaking and every other act or thing
whatsoever executed or done by or on behalf of the Trust, any Sub-Trust or the
Trustees or any of them in connection with the Trust shall be conclusively
deemed to have been executed or done only by or for the Trust (or the
Sub-Trust) or the Trustees and not personally. Nothing in this Declaration of
Trust shall protect any Trustee or officer against any liability to the Trust
or the Shareholders to which such Trustee or officer would otherwise be subject
by reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of Trustee or of
such officer.
Every note, bond, contract, instrument, certificate or
undertaking made or issued by the Trustees or by any officers or officer shall
give notice that this Declaration of Trust is on file with the Secretary of the
Commonwealth of Massachusetts and shall recite to the effect that the same was
executed or made by or on behalf of the Trust or by them as Trustees or Trustee
or as officers or officer and not individually and that the obligations of such
instrument are not binding upon any of them or the Shareholders individually
but are binding only upon the assets and property of the Trust, or the
particular Sub-Trust in question, as the case may be, but the omission thereof
shall not operate to bind any Trustees or Trustee or officers or officer or
Shareholders or Shareholder individually.
Section 6.2 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 own willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of Trustee, and
for nothing else, and shall not be liable for errors of judgment or mistakes of
fact or law. Subject to the foregoing, (a) the Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing of any
officer, agent, employee, consultant, adviser, administrator, distributor or
principal underwriter, custodian or transfer, dividend disbursing, Shareholder
servicing,
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accounting agent or any other service provider of the Trust, nor shall any
Trustee be responsible for the act or omission of any other Trustee; (b) the
Trustees may take advice of counsel or other experts with respect to the
meaning and operation of this Declaration of Trust and their duties as
Trustees, and shall be under no liability for any act or omission in accordance
with such advice or for failing to follow such advice; and (c) in discharging
their duties, the Trustees, when acting in good faith, shall be entitled to
rely upon the books of account of the Trust and upon written reports made to
the Trustees by any officer appointed by them, any independent public
accountant, and (with respect to the subject matter of the contract involved)
any officer, partner or responsible employee of a Contracting Party appointed
by the Trustees pursuant to Section 3.3. The Trustees as such shall not be
required to give any bond or surety or any other security for the performance
of their duties.
Section 6.3 Indemnification of Shareholders. In case any
Shareholder (or former Shareholder) of any Sub-Trust of the Trust shall be
charged or held to be personally liable for any obligation or liability of the
Trust solely by reason of being or having been a Shareholder and not because of
such Shareholder's acts or omissions or for some other reason, said Sub-Trust
(upon proper and timely request by the Shareholder) shall assume the defense
against such charge and satisfy any judgment thereon, and the Shareholder or
former Shareholder (or his heirs, executors, administrators or other legal
representatives or in the case of a corporation or other entity, its corporate
or other general successor) shall be entitled out of the assets of said
Sub-Trust estate to be held harmless from and indemnified against all loss and
expense arising from such liability.
Section 6.4 Indemnification of Trustees, Officers, etc. The
Trust shall indemnify (from the assets of the Sub-Trust or Sub-Trusts in
question) each of its Trustees and officers (including persons who serve at the
Trust's request as directors, officers or trustees of another organization in
which the Trust has any interest as a shareholder, creditor or otherwise
[hereinafter referred to as a "Covered Person"]) against all liabilities,
including but not limited to amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, and expenses, including reasonable
accountants' and counsel fees, incurred by any Covered Person in connection
with the defense or disposition of any action, suit or other proceeding,
whether civil or criminal, before any court or administrative or legislative
body, in which such Covered Person may be or may have been involved as a party
or otherwise or with which such person may be or may have been threatened,
while in office or thereafter, by reason of being or having been such a Trustee
or officer, director or trustee, except with respect to any matter as to which
it has been determined that such Covered Person (i) did not act in good faith
in the reasonable belief that such Covered Person's action was in or not
opposed to the best interests of the Trust or (ii) had acted with willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of such Covered Person's office (either and both of the
conduct described in (i) and (ii) being referred to hereafter as "Disabling
Conduct"). A determination that the Covered Person is entitled to
indemnification may be made by (i) a final decision on the merits by a court or
other body before whom the proceeding was brought that the person to be
indemnified was not liable by reason of
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Disabling Conduct, (ii) dismissal of a court action or an administrative
proceeding against a Covered Person for insufficiency of evidence of Disabling
Conduct, or (iii) a reasonable determination, based upon a review of the facts,
that the indemnitee was not liable by reason of Disabling Conduct by (a) a vote
of a majority of a quorum of Trustees who are neither "interested persons" of
the Trust as defined in section 2(a)(19) of the 1940 Act nor parties to the
proceeding, or (b) an independent legal counsel in a written opinion.
Expenses, including accountants' and counsel fees so incurred by any such
Covered Person (but excluding amounts paid in satisfaction of judgments, in
compromise or as fines or penalties), may be paid from time to time by the
Sub-Trust in question in advance of the final disposition of any such action,
suit or proceeding, provided that the Covered Person shall have undertaken to
repay the amounts so paid to the Sub-Trust in question if it is ultimately
determined that indemnification of such expenses is not authorized under this
Article VI and (i) the Covered Person shall have provided security for such
undertaking, (ii) the Trust shall be insured against losses arising by reason
of any lawful advances, or (iii) a majority of a quorum of the disinterested
Trustees who are not a party to the proceeding, or an independent legal counsel
in a written opinion, shall have determined, based on a review of readily
available facts (as opposed to a full trial-type inquiry), that there is reason
to believe that the Covered Person ultimately will be found entitled to
indemnification.
Section 6.5 Compromise Payment. As to any matter disposed of
by a compromise payment by any such Covered Person referred to in Section 6.4,
pursuant to a consent decree or otherwise, no such indemnification either for
said payment or for any other expenses shall be provided unless such
indemnification shall be approved (a) by a majority of the disinterested
Trustees who are not a party to the proceeding or (b) by an independent legal
counsel in a written opinion. Approval by the Trustees pursuant to clause (a)
or by independent legal counsel pursuant to clause (b) shall not prevent the
recovery from any Covered Person of any amount paid to such Covered Person in
accordance with any of such clauses as indemnification if such Covered Person
is subsequently adjudicated by a court of competent jurisdiction not to have
acted in good faith in the reasonable belief that such Covered Person's action
was in or not opposed to the best interests of the Trust or to have been liable
to the Trust or its Shareholders by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
such Covered Person's office.
Section 6.6 Indemnification Not Exclusive, etc. The right of
indemnification provided by this Article VI shall not be exclusive of or affect
any other rights to which any such Covered Person may be entitled. As used in
this Article VI, "Covered Person" shall include such person's heirs, executors
and administrators, an "interested Covered Person" is one against whom the
action, suit or other proceeding in question or another action, suit or other
proceeding on the same or similar grounds is then or has been pending or
threatened, and a "disinterested" person is a person against whom none of such
actions, suits or other proceedings or another action, suit or other proceeding
on the same or similar grounds is then or has been pending or threatened.
Nothing contained in this article shall affect any rights to indemnification to
which personnel of the Trust, other than Trustees and officers, and other
persons may be entitled by contract or otherwise under law, nor the power of
the Trust to purchase and maintain liability insurance on behalf of any such
person.
Section 6.7 Liability of Third Persons Dealing with Trustees.
No person dealing
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with the Trustees shall be bound to make any inquiry concerning the validity of
any transaction made or to be made by the Trustees or to see to the application
of any payments made or property transferred to the Trust or upon its order.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Duration and Termination of Trust. Unless
terminated as provided herein, the Trust shall continue without limitation of
time and, without limiting the generality of the foregoing, no change,
alteration or modification with respect to any Sub-Trust shall operate to
terminate the Trust. The Trust may be terminated at any time by a majority of
the Trustees then in office subject to a favorable vote of a majority of the
outstanding voting securities, as defined in the 1940 Act, Shares of each
Sub-Trust voting separately by Sub-Trust.
Upon termination, after paying or otherwise providing for all
charges, taxes, expenses and liabilities, whether due or accrued or anticipated
as may be determined by the Trustees, the Trust shall in accordance with such
procedures as the Trustees consider appropriate reduce the remaining assets to
distributable form in cash, securities or other property, or any combination
thereof, and distribute the proceeds to the Shareholders, in conformity with
the provisions of subsection (d) of Section 4.2.
Section 7.2 Reorganization. The Trust may merge or
consolidate with any other corporation, partnership, association, trust or
other organization and the Trustees may sell, convey, and transfer the assets
of the Trust, or the assets belonging to any one or more Sub-Trusts, to
another trust, partnership, association or corporation organized under the laws
of any state of the United States, or to the Trust to be held as assets
belonging to another Sub-Trust, in exchange for cash, shares or other
securities (including, in the case of a transfer to another Sub-Trust of the
Trust, Shares of such other Sub-Trust) with such transfer being made subject
to, or with the assumption by the transferee of, the liabilities belonging to
each Sub-Trust the assets of which are so transferred; provided, however, that
no assets belonging to any particular Sub-Trust shall be so transferred unless
the terms of such transfer shall have first been approved at a meeting called
for the purpose by the affirmative vote of the holders of a majority of the
outstanding voting Shares, as defined in the 1940 Act, of that Sub-Trust. Any
such consolidation or merger shall require approval by the affirmative vote of
the holders of a majority of the outstanding voting Shares, as defined in the
1940 Act, of the Trust (or each Sub-Trust affected thereby, as the case may
be), except that such affirmative vote of the holders of Shares shall not be
required if the Trust (or Sub-Trust affected thereby, as the case may be) shall
be the survivor of such consolidation or merger.
Section 7.3 Amendments. All rights granted to the
Shareholders under this Declaration of Trust are granted subject to the
reservation of the right to amend this Declaration of Trust as herein provided,
except that no amendment shall repeal the limitations on personal
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liability of any Shareholder or Trustee or repeal the prohibition of assessment
upon the Shareholders without the express consent of each Shareholder or
Trustee involved. Subject to the foregoing, the provisions of this Declaration
of Trust (whether or not related to the rights of Shareholders) may be amended
at any time, so long as such amendment does not adversely affect the rights of
any Shareholder with respect to which such amendment is or purports to be
applicable and so long as such amendment is not in contravention of applicable
law, including the 1940 Act, by an instrument in writing signed by a majority
of the then Trustees (or by an officer of the Trust pursuant to the vote of a
majority of such Trustees). Any amendment to this Declaration of Trust that
adversely affects the rights of Shareholders may be adopted at any time by an
instrument in writing signed by a majority of the then Trustees (or by an
officer of the Trust pursuant to a vote of a majority of such Trustees) when
authorized to do so by the vote in accordance with subsection (e) of Section
4.2 of Shareholders holding a majority of the Shares entitled to vote. Subject
to the foregoing, any such amendment shall be effective as provided in the
instrument containing the terms of such amendment or, if there is no provision
therein with respect to effectiveness, upon the execution of such instrument
and of a certificate (which may be a part of such instrument) executed by a
Trustee or officer of the Trust to the effect that such amendment has been duly
adopted.
Section 7.4 Resident Agent. The Trust may appoint and
maintain a resident agent in the Commonwealth of Massachusetts.
Section 7.5 Filing of Copies; References; Headings. The
original or a copy of this instrument and of each amendment hereto shall be
kept at the office of the Trust where it may be inspected by any Shareholder.
A copy of this instrument and of each amendment hereto shall be filed by the
Trust with the Secretary of the Commonwealth of Massachusetts and with the
Boston City Clerk, as well as any other governmental office where such filing
may from time to time be required, but the failure to make any such filing
shall not impair the effectiveness of this instrument or any such amendment.
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, as to the
identities of the Trustees and officers, 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 a whole
as the same may be amended or affected by any such amendments. The masculine
gender shall include the feminine and neuter genders. Headings are placed
herein for convenience of reference only and shall not be taken as a part
hereof or 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 7.6 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, including the Massachusetts Business Corporation Law as the same
may be amended from time to time, to which reference is
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made with the intention that matters not specifically covered herein or as to
which an ambiguity may exist shall be resolved as if the Trust were a business
corporation organized in Massachusetts, but the reference to said Business
Corporation Law is not intended to give the Trust, the Trustees, the
Shareholders or any other person any right, power, authority or responsibility
available only to or in connection with an entity organized in corporate form.
The Trust shall be of the type referred to in Section 1 of Chapter 182 of the
Massachusetts General Laws and 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.
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IN WITNESS WHEREOF, the undersigned have hereunto set their
hands and seals in the City of Boston, Massachusetts for themselves and their
assigns, as of the day and year first above written.
/s/ Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxxx, as Trustee
and not individually
/s/ Xxxxxxxx Xxxxxxxx
-----------------------------------
Xxxxxxxx X. Xxxxxxxx, as Trustee
and not individually
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