EXHIBIT (1)
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
OF
WINTHROP FOCUS FUNDS
THIS AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST of
Winthrop Focus Funds made this _____ of _______, 1995 by the parties
signatory hereto, as trustees (such persons, so long as they shall continue
in office in accordance with the terms of this Declaration of Trust, and
all other persons who at the time in question have been duly elected or
appointed as trustees in accordance with the provisions of this Declaration
of Trust and are then in office, being hereinafter called the "Trustees")
W I T N E S S E T H T H A T:
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WHEREAS, the Trustees are authorized to employ any funds coming
into their hands or the hands of their successor or successors as such
Trustees, to carry on the business of an investment company, and as such of
buying, selling, investing in or otherwise dealing in and with stocks,
bonds, debentures, warrants, options, futures contracts and other
securities and interests therein, or calls or puts with respect to any of
the same, or such other and further investment media and other property as
the Trustees may deem advisable, which are not prohibited by law or the
terms of this Declaration; and
WHEREAS, the assets held by the Trustees are and may in the
future be divided into separate funds, each with its own separate
investment portfolio, investment objectives, policies and purposes, and
that the beneficial interest in each such fund shall be divided into
transferable Shares of Beneficial Interest, a separate Series of Shares for
each fund, all in accordance with the provisions hereinafter set forth; and
WHEREAS, it is desired that the trust established hereby (the
"Trust") be managed and operated as a trust with transferable shares under
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the laws of Massachusetts, of the type commonly known as and referred to as
a Massachusetts business trust, in accordance with the provisions herein-
after set forth;
NOW, THEREFORE, the Trustees hereby declare and agree for
themselves and for all Persons who shall hereafter become holders of Shares
of Beneficial Interest of the Trust, of any Series, that the Trustees will
hold cash,
securities and other property of every type and description which they may
in any way acquire in their capacity as such Trustees, together with the
income therefrom and the proceeds thereof, IN TRUST NEVERTHELESS, to manage
and dispose of the same for the benefit of the holders from time to time of
the Shares of Beneficial Interest of the several Series being issued and to
be issued hereunder and in the manner and subject to the provisions hereof,
to wit:
ARTICLE I
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THE TRUST
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SECTION 1.1. Name. The name of the Trust shall be
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"WINTHROP FOCUS FUNDS",
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and so far as may be practicable the Trustees shall conduct the Trust's
activities, execute all documents and xxx or be sued under that name, which
name (and the word "Trust" wherever used in this Agreement and Declaration
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of Trust, except where the context otherwise requires) shall refer to the
Trustees in their capacity as Trustees, and not individually or personally,
and shall not refer to the officers, agents or employees of the Trust or of
such Trustees, or to the holders of the Shares of Beneficial Interest of
the Trust, of any Series. If the Trustees determine that the use of such
name is not practicable, legal or convenient at any time or in any
jurisdiction, or if the Trust is required to discontinue the use of such
name pursuant to Section 10.5 hereof, then subject to that Section, the
Trustees may use such other designation, or they may adopt such other name
for the Trust as they deem proper, and the Trust may hold property and
conduct its activities under such designation or name.
SECTION 1.2. Location. The Trust shall have an office in
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Boston, Massachusetts, unless changed by the Trustees to another location
in Massachusetts or elsewhere, but such office need not be the sole or
principal office of the Trust. The Trust may have such other offices or
places of business as the Trustees may from time to time determine to be
necessary or expedient.
SECTION 1.3. Nature of Trust. The Trust shall be a trust with
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transferable shares under the laws of The Commonwealth of Massachusetts, of
the type referred to in Section 1 of Chapter 182 of the Massachusetts
General Laws and commonly termed a Massachusetts business trust. The
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Trust is not intended to be, shall not be deemed to be, and shall not be
treated as, a general partnership, limited partnership, joint venture,
corporation or joint stock company. The Shareholders shall be
beneficiaries and their relationship to the Trustees shall be solely in
that capacity in accordance with the rights conferred upon them hereunder.
SECTION 1.4. Definitions. As used in this Agreement and
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Declaration of Trust, the following terms shall have the meanings set forth
below unless the context thereof otherwise requires:
"Accounting Agent" shall have the meaning designated in Section
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5.2(g) hereof.
"Administrator" shall have the meaning designated in Section
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5.2(b) hereof.
"Affiliated Person" shall have the meaning assigned to it in the
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1940 Act.
"By-Laws" shall mean the By-Laws of the Trust, as amended from
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time to time.
"Certificate of Designation" shall have the meaning designated in
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Section 6.1 hereof.
"Certificate of Termination" shall have the meaning designated in
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Section 6.1 hereof.
"Class" shall mean one of the classes of Shares authorized by the
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Trustees to represent the beneficial interest in any one of the Portfolios.
"Commission" shall have the same meaning as in the 1940 Act.
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"Contracting Party" shall have the meaning designated in the
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preamble to Section 5.2 hereof.
"Covered Person" shall have the meaning designated in Section 8.4
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hereof.
"Custodian" shall have the meaning designated in Section 5.2(d)
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hereof.
"Declaration" and "Declaration of Trust" shall mean this
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Agreement and Declaration of Trust and all amendments or modifications
thereof as from time to time in effect. References in this Agreement and
Declaration of
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Trust to "hereof", "herein" and "hereunder" shall be deemed to refer to the
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Declaration of Trust generally, and shall not be limited to the particular
text, Article or Section in which such words appear.
"Disabling Conduct" shall have the meaning designated in Section
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8.4 hereof.
"Distributor" shall have the meaning designated in Section 5.2(c)
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hereof.
"Dividend Disbursing Agent" shall have the meaning designated in
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Section 5.2(e) hereof.
"General Items" shall have the meaning defined in Section 6.2(a)
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hereof.
"Investment Advisor" shall have the meaning stated in Section
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5.2(a) hereof.
"Majority of the Trustees" shall mean a majority of the Trustees
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in office at the time in question. At any time at which there shall be
only one (1) Trustee in office, such term shall mean such Trustee.
"Majority Shareholder Vote," as used with respect to the election
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of any Trustee at a meeting of Shareholders, shall mean the vote for the
election of such Trustee of a plurality of all outstanding Shares of the
Trust, without regard to Series or Class voted in person or by proxy and
entitled to vote thereon, provided that a quorum (as determined in
accordance with the By-Laws) is present, and as used with respect to any
other action required or permitted to be taken by Shareholders, shall mean
the vote for such action of the holders of that majority of all outstanding
Shares (or, where a separate vote of Shares of any particular Series or
Class is to be taken, the affirmative vote of that majority of the
outstanding Shares of that Series or Class, respectively) of the Trust
which consists of: (i) a majority of all Shares (or of Shares of the
particular Series or Class) represented in person or by proxy and entitled
to vote on such action at the meeting of Shareholders at which such action
is to be taken, provided that a quorum (as determined in accordance with
the By-Laws) is present; or (ii) if such action is to be taken by written
consent of Shareholders, a majority of all Shares (or of Shares of the
particular Series or Class) issued and outstanding and entitled to vote on
such action; provided, that (iii) as used with respect to any action
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requiring the affirmative vote of "a majority of the outstanding voting
securities", as the quoted phrase is defined in the 1940
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Act, of the Trust or of any Series or Class, "Majority Shareholder Vote"
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means the vote for such action at a meeting of Shareholders of the smallest
majority of all outstanding Shares of the Trust (or of Shares of the
particular Series or Class) entitled to vote on such action which satisfies
such 1940 Act voting requirement.
"NASD" shall have the meaning designated in Section 6.1(e)(2)(a)
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hereof.
"1940 Act" shall mean the provisions of the Investment Company
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Act of 1940 and the rules and regulations thereunder, both as amended from
time to time, and any order or orders thereunder which may from time to
time be applicable to the Trust.
"Person" shall mean and include individuals, as well as
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corporations, limited partnerships, general partnerships, joint stock
companies, joint ventures, associations, banks, trust companies, land
trusts, business trusts or other organizations established under the laws
of any jurisdiction, whether or not considered to be legal entities, and
governments and agencies and political subdivisions thereof.
"Portfolio" or "Portfolios" shall mean one or more of the
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separate components of the assets of the Trust which are now or hereafter
established and designated under or in accordance with the provisions of
Article VI hereof.
"Portfolio Assets" shall have the meaning defined in Section
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6.2(a) hereof.
"Principal Underwriter" shall have the meaning designated in
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Section 5.2(c) hereof.
"Prospectus," as used with respect to any Portfolio or Series of
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Shares, shall mean the prospectus relating to such Portfolio or Series
which constitutes part of the currently effective Registration Statement of
the Trust under the Securities Act of 1933, as such prospectus may be
amended or supplemented from time to time.
"Securities" shall mean any and all bills, notes, bonds,
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debentures or other obligations or evidences of indebtedness, certificates
of deposit, bankers' acceptances, commercial paper, repurchase agreements
or other money market instruments; stocks, shares or other equity ownership
interests; and warrants, options or other instruments representing rights
to subscribe for, purchase, receive or otherwise acquire or to sell,
transfer, assign or otherwise
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dispose of, and scrip, certificates, receipts or other instruments
evidencing any ownership rights or interests in, any of the foregoing and
"when issued" and "delayed delivery" contracts for securities, issued,
guaranteed or sponsored by any governments, political subdivisions or
governmental authorities, agencies or instrumentalities, by any
individuals, firms, companies, corporations, syndicates, associations or
trusts, or by any other organizations or entities whatsoever, irrespective
of their forms or the names by which they may be described, whether or not
they be organized and operated for profit, and whether they be domestic or
foreign with respect to The Commonwealth of Massachusetts or the United
States of America.
"Securities of the Trust" shall mean any Securities issued by the
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Trust.
"Series" shall mean one or more of the series of Shares
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authorized by the Trustees to represent the beneficial interest in one or
more of the Portfolios.
"Settlor" shall have the meaning stated in the first "Whereas"
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clause set forth above.
"Shareholder" shall mean as of any particular time any Person
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shown of record at such time on the books of the Trust as a holder of
outstanding Shares of any Series, and shall include a pledgee into whose
name any such Shares are transferred in pledge.
"Shareholder Servicing Agent" shall have the meaning designated
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in Section 5.2(f) hereof.
"Shares" shall mean the transferable units into which the
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beneficial interest in the Trust and each Portfolio of the Trust (as the
context may require) shall be divided from time to time, and includes
fractions of Shares as well as whole Shares. All references herein to
"Shares" shall be deemed to be to Shares of any or all Series or of a
single Class of a Series or all Classes of a Series, as the context may
require.
"Single Class Voting," as used with respect to any matter to be
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acted upon at a meeting or by written consent of Shareholders, shall mean a
style of voting in which each holder of one or more Shares shall be
entitled to one vote on the matter in question for each Share standing in
his name on the records of the Trust, irrespective of Series, and all
outstanding Shares of all Series vote as a single class.
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"Statement of Additional Information," as used with respect to
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any Portfolio or Series of Shares, shall mean the statement of additional
information relating to such Portfolio or Series, which constitutes part of
the currently effective Registration Statement of the Trust under the
Securities Act of 1933, as such statement of additional information may be
amended or supplemented from time to time.
"Transfer Agent" shall have the meaning defined in Section 5.2(e)
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hereof.
"Trust" shall have the meaning stated in the fourth "Whereas"
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clause set forth above.
"Trust Property" shall mean, as of any particular time, any and
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all property which shall have been transferred, conveyed or paid to the
Trust or the Trustees, and all interest, dividends, income, earnings,
profits and gains therefrom, and proceeds thereof, including any proceeds
derived from the sale, exchange or liquidation thereof, and any funds or
payments derived from any reinvestment of such proceeds in whatever form
the same may be, and which at such time is owned or held by, or for the
account of, the Trust or the Trustees, without regard to the Portfolio to
which such property is allocated.
"Trustees" shall mean, collectively, all individuals who at the
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time in question have been duly elected or appointed as Trustees of the
Trust in accordance with the provisions hereof and who have qualified and
are then in office. At any time at which there shall be only one (1)
Trustee in office, such term shall mean such single Trustee.
SECTION 1.5. Real Property to be Converted into Personal
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Property. Notwithstanding any other provision hereof, any real property at
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any time forming part of the Trust Property shall be held in trust for sale
and conversion into personal property at such time or times and in such
manner and upon such terms as the Trustees shall approve, but the Trustees
shall have power until the termination of this Trust to postpone such
conversion as long as they in their uncontrolled discretion shall think
fit, and for the purpose of determining the nature of the interest of the
Shareholders therein, all such real property shall at all times be
considered as personal property.
ARTICLE II
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PURPOSE OF THE TRUST
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The purpose of the Trust shall be to engage in the business of being
an investment company, and as such of subscribing for, purchasing or
otherwise acquiring, holding for investment or trading in, borrowing,
lending and selling short, selling, assigning, negotiating or exchanging
and otherwise disposing of, and turning to account, realizing upon and
generally dealing in and with, in any manner, (a) Securities of all kinds,
(b) precious metals and other minerals, contracts to purchase and sell, and
other interests of every nature and kind in, such metals or minerals, and
(c) rare coins and other numismatic items, and all as the Trustees in their
discretion shall determine to be necessary, desirable or appropriate, and
to exercise and perform any and every act, thing or power necessary,
suitable or desirable for the accomplishment of such purpose, the
attainment of any of the objects or the furtherance of any of the powers
given hereby which are lawful purposes, objects or powers of a trust with
transferable shares of the type commonly termed a Massachusetts business
trust; and to do every other act or acts or thing or things incidental or
appurtenant to or growing out of or in connection with the aforesaid
objects, purposes or powers, or any of them, which a trust of the type
commonly termed a Massachusetts business trust is not now or hereafter
prohibited from doing, exercising or performing.
ARTICLE III
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POWERS OF THE TRUSTEES
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SECTION 3.1. Powers in General. The Trustees shall have,
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without other or further authorization, full, entire, exclusive and
absolute power, control and authority over, and management of, the business
of the Trust and over the Trust Property, to the same extent as if the
Trustees were the sole owners of the business and property of the Trust in
their own right, and with such powers of delegation as may be permitted by
this Declaration, subject only to such limitations as may be expressly
imposed by this Declaration of Trust or by applicable law. The enumeration
of any specific power or authority herein shall not be construed as
limiting the aforesaid power or authority or any specific power or
authority. 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
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that right to the Shareholders; they may select, and from time to time
change, the fiscal year of the Trust; they may adopt and use a seal for the
Trust, provided, that unless otherwise required by the Trustees, it shall
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not be necessary to place the seal upon, and its absence shall not impair
the validity of, any document, instrument or other paper executed and
delivered by or on behalf of the Trust; they may from time to time in
accordance with the provisions of Section 6.1 hereof establish one or more
Portfolios to which they may allocate such of the Trust Property, subject
to such liabilities, as they shall deem appropriate, each such Portfolio to
be operated by the Trustees as a separate and distinct investment medium
and with separately defined investment objectives and policies and distinct
investment purposes, all as established by the Trustees, or from time to
time changed by them; they may as they consider appropriate elect and
remove officers and appoint and terminate agents and consultants and hire
and terminate employees, any one or more of the foregoing of whom may be a
Trustee; they may appoint from their own number, and terminate, any one or
more committees consisting of one 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 5.2 they may employ one or more Investment
Advisors, Administrators and Custodians and may authorize any 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,
retain Transfer, Dividend Disbursing, 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
entitled to participate in, benefit from or act with respect to various
matters; and in general they may delegate to any officer of the Trust, to
any Committee of the Trustees and to any employee, Investment Advisor,
Administrator, Distributor, Custodian, Transfer Agent, 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:
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(a) Investments. To invest and reinvest cash and other
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property; to buy, for cash or on margin, and otherwise acquire and
hold, Securities created or issued by any Persons, including
Securities maturing after the possible termination of the Trust; to
make payment therefor in any lawful manner in exchange for any of the
Trust 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. Upon such terms and conditions as
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they deem best, to lend, sell, exchange, mortgage, pledge,
hypothecate, grant security interests in, encumber, negotiate, convey,
transfer or otherwise dispose of, and to trade in, any and all of the
Trust Property, free and clear of all trusts, for cash or on terms,
with or without advertisement, and on such terms as to payment,
security or otherwise, all as they shall deem necessary or expedient;
(c) Ownership Powers. To vote or give assent, or exercise any
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and all other rights, powers and privileges of ownership with respect
to, and to perform any and all duties and obligations as owners of,
any Securities or other property forming part of the Trust Property,
the same as any individual might do; to exercise powers and rights of
subscription or otherwise which in any manner arise out of ownership
of Securities, and to receive powers of attorney from, and to execute
and deliver proxies or powers of attorney to, such Person or Persons
as the Trustees shall deem proper, receiving from or granting to such
Person or Persons such power and discretion with relation to
Securities or other property of the Trust, all as the Trustees shall
deem proper;
(d) Form of Holding. To hold any Security or other property in
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a 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 the Portfolio to which such Securities or property belong, or in
the name of a Custodian, subcustodian or other nominee or nominees, or
otherwise, upon such terms, in such manner or with such powers, as the
Trustees may determine, and with or without indicating any trust or
the interest of the Trustees therein;
(e) Reorganization, etc. To consent to or participate in any
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plan for the reorganization,
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consolidation or merger of any corporation or issuer, any Security of
which is or was held in the Trust or any Portfolio; 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 forming part of the Trust Property;
(f) Voting Trusts, etc. To join with other holders of any
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Securities in acting through a committee, depository, voting trustee
or otherwise, and in that connection to deposit any Security with, or
transfer any Security to, any such committee, depository 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, depository or trustee
as the Trustees shall deem proper;
(g) Contracts, etc. To enter into, make and perform all such
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obligations, contracts, agreements and undertakings of every kind and
description, with any Person or Persons, as the Trustees shall in
their discretion deem expedient in the conduct of the business of the
Trust, for such terms as they shall see fit, whether or not extending
beyond the term of office of the Trustees, or beyond the possible
expiration of the Trust; to amend, extend, release or cancel any such
obligations, contracts, agreements or understandings; and to execute,
acknowledge, deliver and record all written instruments which they may
deem necessary or expedient in the exercise of their powers;
(h) Guarantees etc. To endorse or guarantee the payment of any
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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;
(i) Partnerships, etc. To enter into joint ventures, general or
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limited partnerships and any other combinations or associations;
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(j) Insurance. To purchase and pay for entirely out of Trust
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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 Advisors, managers, Administrators,
Distributors, Principal Underwriters, or other 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
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;
(k) Pensions, etc. To pay pensions for faithful service, as
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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;
(l) Power of Collection and Litigation. To collect, xxx for and
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receive all sums of money coming due to the Trust, to employ counsel,
and to commence, engage in, prosecute, intervene in, join, defend,
compound, compromise, adjust or abandon, in the name of the Trust, any
and all actions, suits, proceedings, disputes, claims, controversies,
demands or other litigation or legal proceedings relating to the
Trust, the business of the Trust, the Trust Property, or the Trustees,
officers, employees, agents and other independent contractors of the
Trust, in their capacity as such, at law or in equity, or before any
other bodies or tribunals, and to compromise, arbitrate or otherwise
adjust any dispute to which the Trust may be a party, whether or not
any suit is commenced or any claim shall have been made or asserted;
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(m) Issuance and Repurchase of Shares. To issue, sell,
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repurchase, redeem, retire, cancel, acquire, hold, resell, reissue,
dispose of, transfer, and otherwise deal in Shares of any Series, and,
subject to Article VI hereof, to apply to any such repurchase,
redemption, retirement, cancellation or acquisition of Shares of any
Series, any of the Portfolio Assets belonging to the Portfolio to
which such Series relates, whether constituting capital or surplus or
otherwise, to the full extent now or hereafter permitted by applicable
law; provided, that any Shares belonging to the Trust shall not be
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voted, directly or indirectly;
(n) Offices. To have one or more offices, and to carry on all
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or any of the operations and business of the Trust, in any of the
States, Districts or Territories of the United States, and in any and
all foreign countries, subject to the laws of such State, District,
Territory or country;
(o) Expenses. To incur and pay any and all such expenses and
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charges as they may deem advisable (including without limitation
appropriate fees to themselves as Trustees), and to pay all such sums
of money for which they may be held liable by way of damages, penalty,
fine or otherwise;
(p) Agents, etc. To retain and employ any and all such
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servants, agents, employees, attorneys, brokers, investment advisers,
accountants, architects, engineers, builders, escrow agents,
depositories, consultants, ancillary trustees, custodians, agents for
collection, insurers, banks and officers, as they think best for the
business of the Trust or any Portfolio, to supervise and direct the
acts of any of the same, and to fix and pay their compensation and
define their duties;
(q) Accounts. To determine, and from time to time change, the
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method or form in which the accounts of the Trust shall be kept;
(r) Valuation. Subject to the requirements of the 1940 Act, to
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determine from time to time the value of all or any part of the Trust
Property and of any services, Securities, property or other
consideration to be furnished to or acquired by the Trust, and from
time to time to revalue all or any part of the Trust Property in
accordance with such appraisals or other
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information as is, in the Trustees' sole judgment, necessary and
satisfactory;
(s) Indemnification. In addition to the mandatory
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indemnification provided for in Article VIII hereof and to the extent
permitted by law, to indemnify or enter into agreements with respect
to indemnification with any Person with whom this Trust has dealings,
including, without limitation, any independent contractor, to such
extent as the Trustees shall determine; and
(t) General. To do all such other acts and things and to
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conduct, operate, carry on and engage in such other lawful businesses
or business activities as they shall in their sole and absolute
discretion consider to be incidental to the business of the Trust or
any Portfolio as an investment company, and to exercise all powers
which they shall in their discretion consider necessary, useful or
appropriate to carry on the business of the Trust or any Portfolio, to
promote any of the purposes for which the Trust is formed, whether or
not such things are specifically mentioned herein, in order to protect
or promote the interests of the Trust or any Portfolio, or otherwise
to carry out the provisions of this Declaration.
SECTION 3.2. Borrowings; Financings; Issuance of Securities.
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The Trustees have power to borrow or in any other manner raise such sum or
sums of money, and to incur such other indebtedness for goods or services,
or for or in connection with the purchase or other acquisition of property,
as they shall deem advisable for the purposes of the Trust, in any manner
and on any terms, and to evidence the same by negotiable or non-negotiable
Securities which may mature at any time or times, even beyond the possible
date of termination of the Trust; to issue Securities of any type for such
cash, property, services or other considerations, and at such time or times
and upon such terms, as they may deem advisable; and to reacquire any such
Securities. Any such Securities of the Trust may, at the discretion of the
Trustees, be made convertible into Shares of any Series, or may evidence
the right to purchase, subscribe for or otherwise acquire Shares of any
Series, at such times and on such terms as the Trustees may prescribe.
SECTION 3.3. Deposits. Subject to the requirements of the 1940
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Act, the Trustees shall have power to deposit any moneys or Securities
included in the Trust Property with any one or more banks, trust companies
or other banking institutions, whether or not such deposits
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will draw interest. Such deposits are to be subject to withdrawal in such
manner as the Trustees may determine, and the Trustees shall have no
responsibility for any loss which may occur by reason of the failure of the
bank, trust company or other banking institution with which any such moneys
or Securities have been deposited, other than liability based on their
gross negligence or willful fault.
SECTION 3.4. Allocations. The Trustees shall have power to
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determine whether moneys or other assets received by the Trust shall be
charged or credited to income or capital, or allocated between income and
capital, including the power to amortize or fail to amortize any part or
all of any premium or discount, to treat any part or all of the profit
resulting from the maturity or sale of any asset, whether purchased at a
premium or at a discount, as income or capital, or to apportion the same
between income and capital, to apportion the sale price of any asset
between income and capital, and to determine in what manner any expenses or
disbursements are to be borne as between income and capital, whether or not
in the absence of the power and authority conferred by this Section 3.4
such assets would be regarded as income or as capital or such expense or
disbursement would be charged to income or to capital; to treat any
dividend or other distribution on any investment as income or capital, or
to apportion the same between income and capital; to provide or fail to
provide reserves, including reserves for depreciation, amortization or
obsolescence in respect of any Trust Property in such amounts and by such
methods as they shall determine; to allocate less than all consideration
paid for Shares of any Series to the shares of beneficial interest account
of the Portfolio to which such Shares relate and to allocate the balance
thereof to paid-in capital of that Portfolio, and to reallocate such
amounts from time to time; all as the Trustees may reasonably deem proper.
SECTION 3.5. Further Powers; Limitations. The Trustees shall
---------------------------
have power to do all such other matters and things, and execute all such
instruments, as they deem necessary, proper or desirable in order to carry
out, promote or advance the interests of the Trust, although such matters
or things are not herein specifically mentioned. Any determination as to
what is in the interests of the Trust made by the Trustees in good faith
shall be conclusive. In construing the provisions of this Declaration of
Trust, the presumption shall be in favor of a grant of power to the
Trustees. The Trustees shall not be required to obtain any court order to
deal with the Trust Property. The Trustees may limit their right to
exercise any of their powers through express restrictive provisions
-15-
in the instruments evidencing or providing the terms for any Securities of
the Trust or in other contractual instruments adopted on behalf of the
Trust.
ARTICLE IV
----------
TRUSTEES AND OFFICERS
---------------------
SECTION 4.1. Number, Designation, Election, Term, etc.
-----------------------------------------
(a) Number. The Trustees serving as such may increase (to not
------
more than twenty (20)) or decrease the number of Trustees to a number
other than the number theretofore determined by a written instrument
signed by a Majority of the Trustees (or by an officer of the Trust
pursuant to the vote of a Majority of the Trustees). 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 4.1.
(b) Election and Term. The Trustees shall be elected by the
-----------------
Shareholders of the Trust at the first meeting of Shareholders
immediately prior to the initial public offering of Shares of the
Trust, and the term of office of any Trustees in office before such
election shall terminate at the time of such election. Subject to
Section 16(a) of the 1940 Act and to the preceding sentence of this
subsection (c), the Trustees shall have the power to set and alter the
terms of office of the Trustees, and at any time to lengthen or
shorten their own terms or make their terms of unlimited duration, to
elect their own successors and, pursuant to subsection (f) of this
Section 4.1, to appoint Trustees to fill vacancies; provided, that
--------
Trustees shall be elected by a Majority Shareholder Vote at any such
time or times as the Trustees shall determine that such action is
required under Section 16(a) of the 1940 Act or, if not so required,
that such action is advisable; and further provided, that, after the
------- --------
initial election of Trustees by the Shareholders, the term of office
of any incumbent Trustee shall continue until the termination of this
Trust or his earlier death, resignation, retirement, bankruptcy,
adjudicated incompetency or other incapacity or removal, or if not so
terminated, until the election of
-16-
such Trustee's successor in office has become effective in accordance
with this subsection (c).
(c) Resignation and Retirement. Any Trustee may resign his
--------------------------
trust or retire as a Trustee, by a 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.
(d) Removal. Any Trustee may be removed with or without cause
-------
at any time: (i) by written instrument, signed by at least two-thirds
(2/3) 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 (2/3) of the Shares
of each Series 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 (2/3) of the
Shares of each Series then outstanding and filed with the Trust's
Custodian.
(e) Vacancies. Any vacancy or anticipated vacancy resulting
---------
from any reason, including an increase in the number of Trustees, may
(but need not unless required by the 0000 Xxx) be filled by a Majority
of the Trustees, subject to the provisions of Section 16(a) of the
1940 Act, through the appointment in writing of such other individual
as such remaining Trustees in their discretion shall determine;
provided, that if there shall be no Trustees in office, such vacancy
--------
or vacancies shall be filled by vote of the Shareholders. Any such
appointment or election shall be effective upon such individual's
written acceptance of his appointment as a Trustee and his agreement
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 the 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 the number of Trustees.
(f) Acceptance of Trusts. Any individual appointed as a Trustee
--------------------
under subsection (f), and any individual elected as a Trustee under
subsection (c), of this Section 4.1 who was not, immediately prior to
such election, acting as a Trustee, shall accept such appointment or
election in writing and agree in such
-17-
writing to be bound by the provisions hereof, and whenever such
individual shall have executed such writing and any conditions to such
appointment or election shall have been satisfied, such individual
shall become a Trustee and the Trust Property shall vest in the new
Trustee, together with the continuing Trustees, without any further
act or conveyance.
(g) Effect of Death, Resignation, etc. No vacancy, whether
----------------------------------
resulting from the death, resignation, retirement, removal or
incapacity of any Trustee, an increase in the number of Trustees or
otherwise, shall operate to annul or terminate the 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.
Until such vacancy is filled as provided in this Section 4.1, the
Trustees in office (if any), regardless of their number, shall have
all the powers granted to the Trustees and shall discharge all the
duties imposed upon the Trustees by this Declaration. A written
instrument certifying the existence of such vacancy signed by a
Majority of the Trustees shall be conclusive evidence of the existence
of such vacancy.
(h) Conveyance. In the event of the resignation or removal of a
----------
Trustee or his otherwise ceasing to be a Trustee, such former Trustee
or his legal representative shall, upon request of the continuing
Trustees, execute and deliver such documents as may be required for
the purpose of consummating or evidencing the conveyance to the Trust
or the remaining Trustees of any Trust Property held in such former
Trustee's name, but the execution and delivery of such documents shall
not be requisite to the vesting of title to the Trust Property in the
remaining Trustees, as provided in subsection (g) of this Section 4.1
and in Section 4.13 hereof.
(i) 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 (nor the estate of any such Person)
shall be required to make an accounting to the Shareholders or
remaining Trustees upon such cessation.
(j) Filings. Whenever there shall be a change in the
-------
composition of the Trustees, the Trust shall cause to be filed in the
office of the Secretary of The Commonwealth of Massachusetts and in
each other place where the Trust is required to file amendments to
this
-18-
Declaration a copy of (i) the instrument by which (in the case of the
appointment of a new Trustee, or the election of an individual who was
not theretofore a Trustee) the new Trustee accepted his appointment or
election and agreed to be bound by the terms of this Declaration, or
(in the case of a resignation) by which the former Trustee resigned as
such, together in either case with a certificate of one of the other
Trustees as to the circumstances of such election, appointment or
resignation, or (ii) in the case of the removal or death of a Trustee,
a certificate of one of the Trustees as to the circumstances of such
removal or resignation.
SECTION 4.2. Trustees' Meetings; Participation by Telephone,
-----------------------------------------------
etc. An annual meeting of Trustees shall be held not later than the last
----
day of the fourth month after the end of each fiscal year of the Trust and
special meetings may be held from time to time, in each case, upon the call
of such officers as may be thereunto authorized by the By-Laws or vote of
the Trustees, or by any two (2) Trustees, or pursuant to a vote of the
Trustees adopted at a duly constituted meeting of the Trustees, and upon
such notice as shall be provided in the By-Laws. The Trustees may act with
or without a meeting, and a written consent to any matter, signed by a
Majority of the Trustees, shall be equivalent to action duly taken at a
meeting of the Trustees, duly called and held. Except as otherwise
provided by the 1940 Act or other applicable law, or by this Declaration of
Trust or the By-Laws, any action to be taken by the Trustees 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, being present), within
or without Massachusetts. If authorized by the By-Laws, all or any one or
more Trustees may participate in a meeting of the Trustees or any Committee
thereof by means of conference telephone or similar means of communication
by means of which all Persons participating in the meeting can hear each
other, and participation in a meeting pursuant to such means of
communication shall constitute presence in person at such meeting. The
minutes of any meeting thus held shall be prepared in the same manner as a
meeting at which all participants were present in person.
-19-
SECTION 4.3. Committees; Delegation. The Trustees shall have
----------------------
power, consistent with their ultimate responsibility to supervise the
affairs of the Trust, to delegate from time to time to an Executive
Committee, and to one or more other Committees, or to any single Trustee,
the doing of such things and the execution of such deeds or other
instruments, either in the name of the Trust or the names of the Trustees
or as their attorney or attorneys in fact, or otherwise as the Trustees may
from time to time deem expedient, and any agreement, deed, mortgage, lease
or other instrument or writing executed by the Trustee or Trustees or other
Person to whom such delegation was made shall be valid and binding upon the
Trustees and upon the Trust.
SECTION 4.4. Officers. The Trustees shall annually elect such
--------
officers or agents, who shall have such powers, duties and responsibilities
as the Trustees may deem to be advisable, and as they shall specify by
resolution or in the By-Laws. Except as may be provided in the By-Laws,
any officer elected by the Trustees may be removed at any time with or
without cause. Any two (2) or more offices may be held by the same
individual.
SECTION 4.5. Compensation of Trustees and Officers. The
-------------------------------------
Trustees shall fix the compensation of all officers and Trustees. Without
limiting the generality of any of the provisions hereof, the Trustees shall
be entitled to receive reasonable compensation for their general services
as such, and to fix the amount of such compensation, and to pay themselves
or any one or more of themselves such compensation for special services,
including legal, accounting, or other professional services, as they in
good faith may deem reasonable. No Trustee or officer resigning and
(except where a right to receive compensation for a definite future period
shall be expressly provided in a written agreement with the Trust, duly
approved by the Trustees) no Trustee or officer removed shall have any
right to any compensation as such Trustee or officer for any period
following his resignation or removal, or any right to damages on account of
his removal, whether his compensation be by the month, by the year or
otherwise.
SECTION 4.6. Ownership of Shares and Securities of the Trust.
-----------------------------------------------
Any Trustee, and any officer, employee or agent of the Trust, and any
organization in which any such Person is interested, may acquire, own, hold
and dispose of Shares of any Series and other Securities of the Trust for
his or its individual account, and may exercise all rights of a holder of
such Shares or Securities to the same extent and in the same manner as if
such Person were not such a
-20-
Trustee, officer, employee or agent of the Trust; subject, in the case of
Trustees and officers, to the same limitations as directors or officers (as
the case may be) of a Massachusetts business corporation; and the Trust may
issue and sell or cause to be issued and sold and may purchase any such
Shares or other Securities 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 Series or other
Securities of the Trust generally.
SECTION 4.7. Right of Trustees and Officers to Own Property or
-------------------------------------------------
to Engage in Business; Authority of Trustee to Permit Others to Do
------------------------------------------------------------------
Likewise. The Trustees, in their capacity as Trustees, and (unless
--------
otherwise specifically directed by vote of the Trustees) the officers of
the Trust in their capacity as such, shall not be required to devote their
entire time to the business and affairs of the Trust. Except as otherwise
specifically provided by vote of the Trustees, or by agreement in any
particular case, any Trustee or officer of the Trust may acquire, own, hold
and dispose of, for his own individual account, any property, and acquire,
own, hold, carry on and dispose of, for his own individual account, any
business entity or business activity, whether similar or dissimilar to any
property or business entity or business activity invested in or carried on
by the Trust, and without first offering the same as an investment
opportunity to the Trust, and may exercise all rights in respect thereof as
if he were not a Trustee or officer of the Trust. The Trustees shall also
have power, generally or in specific cases, to permit employees or agents
of the Trust to have the same rights (or lesser rights) to acquire, hold,
own and dispose of property and businesses, to carry on businesses, and to
accept investment opportunities without offering them to the Trust, as the
Trustees have by virtue of this Section 4.7.
SECTION 4.8. Reliance on Experts. The Trustees and officers may
-------------------
consult with counsel, engineers, brokers, appraisers, auctioneers,
accountants, investment bankers, securities analysts or other Persons (any
of which may be a firm in which one or more of the Trustees or officers is
or are members or otherwise interested) whose profession gives authority to
a statement made by them on the subject in question, and who are reasonably
deemed by the Trustees or officers in question to be competent, and the
advice or opinion of such Persons shall be full and complete personal
protection to all of the Trustees and officers in respect of any action
taken or suffered by them in good faith and in reliance on or in accordance
with such advice or opinion. In discharging their duties, Trustees and
officers, when
-21-
acting in good faith, may rely upon financial statements of the Trust
represented to them to be correct by any officer of the Trust having charge
of its books of account, or stated in a written report by an independent
certified public accountant fairly to present the financial position of the
Trust. The Trustees and officers may rely, and shall be personally
protected in acting, upon any instrument or other document believed by them
to be genuine.
SECTION 4.9. Surety Bonds. No Trustee, officer, employee or
------------
agent of the Trust shall, as such, be obligated to give any bond or surety
or other security for the performance of any of his duties, unless required
by applicable law or regulation, or unless the Trustees shall otherwise
determine in any particular case.
SECTION 4.10. Apparent Authority of Trustees and Officers. No
-------------------------------------------
purchaser, lender, transfer agent or other Person dealing with the Trustees
or any officer of the Trust shall be bound to make any inquiry concerning
the validity of any transaction purporting to be made by the Trustees or by
such officer, or to make inquiry concerning or be liable for the
application of money or property paid, loaned or delivered to or on the
order of the Trustees or of such officer.
SECTION 4.11. Other Relationships Not Prohibited. 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 (as defined in Section 5.2 hereof), 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 Portfolio, 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 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 or to the holders of Shares of any
Series;
-22-
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 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 4.12. Payment of Trust Expenses. The Trustees are
-------------------------
authorized to pay or to cause to be paid out of the principal or income of
the Trust, or partly out of principal and partly out of income, and
according to any allocation to particular Portfolios made by them pursuant
to Section 6.2(b) hereof, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the business and affairs
of the Trust or in connection with the management thereof, including, but
not limited to, the Trustees' compensation and such expenses and charges
for the services of the Trust's officers, employees, Investment Advisor,
Administrator, Distributor, Principal Underwriter, auditor, counsel,
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.
SECTION 4.13. Ownership of the Trust Property. Legal title to
-------------------------------
all the Trust Property shall be vested in the Trustees as joint tenants,
except that the Trustees shall have power to cause legal title to any Trust
Property to be held by or in the name of one or more of the Trustees, or in
the name of the Trust, or of any particular Portfolio, or in the name of
any other Person as nominee, on such terms as the Trustees may determine;
provided, that the interest of the Trust and of the respective Portfolio
--------
therein is appropriately protected. The right, title and interest of the
Trustees in the Trust Property shall vest automatically in each Person who
may hereafter become a Trustee. Upon the termination of the term of office
of a Trustee as provided
-23-
in Section 4.1(c), (d) or (e) hereof, such Trustee shall automatically
cease to have any right, title or interest in any of the Trust Property,
and the right, title and interest of such Trustee in the Trust Property
shall vest automatically in the remaining Trustees. Such vesting and
cessation of title shall be effective whether or not conveyancing documents
have been executed and delivered pursuant to Section 4.1(i) hereof.
ARTICLE V
---------
DELEGATION OF MANAGERIAL RESPONSIBILITIES
-----------------------------------------
SECTION 5.1. Appointment; Action by Less than All Trustees. The
---------------------------------------------
Trustees shall be responsible for the general operating policy of the Trust
and for the general supervision of the business of the Trust conducted by
officers, agents, employees or advisers of the Trust or by independent
contractors, but the Trustees shall not be required personally to conduct
all the business of the Trust and, consistent with their ultimate
responsibility as stated herein, the Trustees may appoint, employ or
contract with one or more officers, employees and agents to conduct, manage
and/or supervise the operations of the Trust, and may grant or delegate
such authority to such officers, employees and/or agents as the Trustees
may, in their sole discretion, deem to be necessary or desirable, without
regard to whether such authority is normally granted or delegated by
trustees. With respect to those matters of the operation and business of
the Trust which they shall elect to conduct themselves, except as otherwise
provided by this Declaration or the By-Laws, if any, the Trustees may
authorize any single Trustee or defined group of Trustees, or any committee
consisting of a number of Trustees less than the whole number of Trustees
then in office without specification of the particular Trustees required to
be included therein, to act for and to bind the Trust, to the same extent
as the whole number of Trustees could do, either with respect to one or
more particular matters or classes of matters, or generally.
SECTION 5.2. 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 in their
discretion 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 or other types of organizations, or individuals
-24-
("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 Portfolio, 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 deem appropriate:
(a) Advisory. An investment advisory or management agreement
--------
whereby an advisor (any such advisor being referred herein as an
"Investment Advisor") shall undertake to furnish the Trust such
------------------
management, investment advisory or supervisory, administrative,
accounting, legal, statistical and research facilities and services,
and such other facilities and services, if any, as the Trustees shall
from time to time consider desirable, all upon such terms and
conditions as the Trustees may in their discretion determine to be not
inconsistent with this Declaration, the applicable provisions of the
1940 Act or any applicable provisions of the By-Laws. Any such
advisory or management agreement and any amendment thereto shall be
subject to approval by a Majority Shareholder Vote at a meeting of the
Shareholders of the Trust. Notwithstanding any provisions of this
Declaration, the Trustees may authorize the Investment Advisor
(subject to such general or specific instructions as the Trustees may
from time to time adopt) to effect purchases, sales, loans or
exchanges of portfolio securities of the Trust on behalf of the
Trustees or may authorize any officer or employee of the Trust or any
Trustee to effect such purchases, sales, loans or exchanges pursuant
to recommendations of the Investment Advisor (and all without further
action by the Trustees). Any such purchases, sales, loans and
exchanges shall be deemed to have been authorized by all of the
Trustees. The Trustees may, in their sole discretion, call a meeting
of Shareholders in order to submit to a vote of Shareholders at such
meeting the approval of continuance of any such investment advisory or
management agreement. If the Shareholders of any Portfolio should
fail to approve any such investment advisory or management agreement,
the Investment Advisor may nonetheless serve as Investment Advisor
with respect to any other Portfolio whose Shareholders shall have
approved such contract.
-25-
(b) Administration. An agreement whereby the agent, 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 Portfolio, will supervise all or any part of the operations
of the Trust and each Portfolio, and will 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 Portfolio (any such agent being
herein referred to as an "Administrator").
-------------
(c) Distribution. An agreement providing for the sale of Shares
------------
of any one or more Series to net the Trust not less than the net asset
value per Share (as described in Section 6.2(h) hereof) and pursuant
to which the Trust may appoint the other party to such agreement as
its principal underwriter or sales agent for the distribution of such
Shares. The agreement shall contain such terms and conditions as the
Trustees may in their discretion determine to be not inconsistent with
this Declaration, the applicable provisions of the 1940 Act and any
applicable provisions of the By-Laws (any such agent being herein
referred to as a "Distributor" or a "Principal Underwriter", as the
----------- ---------------------
case may be).
(d) Custodian. The appointment of a bank or trust company
---------
having an aggregate capital, surplus and undivided profits (as shown
in its last published report) of at least two million dollars
($2,000,000) as custodian of the Securities and cash of the Trust and
of each Portfolio and of the accounting records in connection
therewith (any such agent being herein referred to as a "Custodian").
---------
(e) Transfer and Dividend Disbursing Agency. An agreement with
---------------------------------------
an agent to maintain records of the ownership of outstanding Shares,
the issuance and redemption and the transfer thereof (any such agent
being herein referred to as a "Transfer Agent"), 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 (any such agent being herein referred
to as a "Dividend Disbursing Agent").
-------------------------
-26-
(f) Shareholder Servicing. An agreement with an agent 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 (any such agent being herein referred to as a
"Shareholder Servicing Agent").
---------------------------
(g) Accounting. An agreement with an agent to handle all or any
----------
part of the accounting responsibilities, whether with respect to the
Trust's properties, Shareholders or otherwise (any such agent being
herein referred to as an "Accounting Agent").
----------------
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 subsections (a)
through (g) of this Section 5.2.
ARTICLE VI
----------
PORTFOLIOS AND SHARES
---------------------
SECTION 6.1. Description of Portfolios and Shares.
------------------------------------
(a) Shares; Portfolios; Series of Shares. The beneficial
------------------------------------
interest in the Trust shall be divided into Shares having a nominal or
par value of one cent ($.01) per Share, of which an unlimited number
may be issued. The Trustees shall have the authority from time to
time to establish and designate one or more separate, distinct and
independent Portfolios into which the assets of the Trust shall be
divided, and to authorize a separate Series of Shares for each such
Portfolio (each of which Series, including without limitation each
Series authorized in Section 6.2 hereof, shall represent interests
only in the Portfolio with respect to which such Series was
authorized), as they deem necessary or desirable. Except as otherwise
provided as to a particular Portfolio herein, or in the Certificate of
Designation therefor, the Trustees shall
-27-
have all the rights and powers, and be subject to all the duties and
obligations, with respect to each such Portfolio and the assets and
affairs thereof as they have under this Declaration with respect to
the Trust and the Trust Property in general.
(b) Establishment, etc. of Portfolios; Authorization of Shares.
----------------------------------------------------------
The establishment and designation of any Portfolio in addition to the
Portfolios established and designated in Section 6.2 hereof and the
authorization of the Shares thereof shall be effective upon the
execution by a Majority of the Trustees (or by an officer of the Trust
pursuant to the vote of a Majority of the Trustees) of an instrument
setting forth such establishment and designation and the relative
rights and preferences of the Shares of such Portfolio and the manner
in which the same may be amended (a "Certificate of Designation"), and
--------------------------
may provide that the number of Shares or Classes of Shares of such
Series which may be issued is unlimited, or may limit the number
issuable. At any time that there are no Shares outstanding of any
particular Portfolio previously established and designated, including
any Portfolio established and designated in Section 6.2 hereof, the
Trustees may by an instrument executed by a Majority of the Trustees
(or by an officer of the Trust pursuant to the vote of a Majority of
the Trustees) terminate such Portfolio and the establishment and
designation thereof and the authorization of its Shares (a
"Certificate of Termination"). Each Certificate of Designation,
--------------------------
Certificate of Termination and any instrument amending a Certificate
of Designation shall have the status of an amendment to this
Declaration of Trust, and shall be filed and become effective as pro-
vided in Section 9.4 hereof.
(c) Character of Separate Portfolios and Shares Thereof. Each
---------------------------------------------------
Portfolio established hereunder shall be a separate component of the
assets of the Trust, and the holders of Shares of the Series
representing the beneficial interest in the assets of that Portfolio
shall be considered Shareholders of such Portfolio, but such
Shareholders shall also be considered Shareholders of the Trust for
purposes of receiving reports and notices and, except as otherwise
provided herein or in the Certificate of Designation of a particular
Portfolio as to such Portfolio, or as required by the 1940 Act or
other applicable law, the right to vote, all without distinction by
Series. The Trustees shall have exclusive power without the
requirement of Shareholder approval to establish and designate such
-28-
separate and distinct Portfolios, and to fix and determine the
relative rights and preferences as between the shares of the
respective Portfolios as to rights 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
Shareholders of the several Portfolios shall have separate voting
rights or no voting rights.
(d) Establishment of Classes. The Trustees, in their discretion
------------------------
without a vote of the Shareholders, may divide the Shares of any
Series into Classes. In such event, each Class of a Series shall
represent interests in the assets of that Portfolio and, as described
in Section 6.2, have identical voting, dividend, liquidation and other
rights and the same terms and conditions except that expenses related
directly or indirectly to the distribution, transfer agency,
shareholder servicing or other appropriate expenses of the Shares of a
Class of a Series may be borne solely by such Class (as shall be
determined by the Trustees) and, as provided in Section 6.1(f), a
Class of a Series may have exclusive voting rights with respect to
matters relating to the expenses being borne solely by such Class.
The bearing of such expenses solely by a Class of Shares shall be
appropriately reflected (in the manner determined by the Trustees) in
the net asset value, dividend and liquidation rights of the Shares of
such Class.
(e) Consideration for Shares. The Trustees may issue Shares of
------------------------
any Series or Classes of Shares of any Series for such consideration
(which may include property subject to, or acquired in connection with
the assumption of, liabilities) 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 Section 6.2(h) hereof).
The Trustees may classify or reclassify any unissued Shares, or any
Shares of any Series or any Class of any Series previously issued and
reacquired by the Trust, into Shares of one or more other Portfolios
that may be established and designated from time to time.
-29-
(f) The terms of each Series existing as of the date of this
Amended and Restated Declaration of Trust as further set by the
Trustees are as follows:
(1) As of the date hereof, the shares of beneficial interest
of the Shares of each Series shall have three Classes of shares,
which shall be designated Class A, Class B and Class O.
(2) Each Class of each Series shall represent the same
beneficial interest in the assets of that Portfolio and have
identical voting, dividend, liquidation, and other rights;
provided, however, that notwithstanding anything in this
Declaration to the contrary:
(a) Class A Shares may be subject to (i) such front-end
sales loads as may be established by the Trustees from time
to time and (ii) a Plan of Distribution under Rule 12b-1 of
the 1940 Act, in each case in accordance with the 1940 Act
and applicable rules and regulations of the National
Association of Securities Dealers, Inc. (the "NASD").
----
(b) Class B Shares may be subject to (i) such
contingent deferred sales charge as may be established from
time to time by the Trustees and (ii) a plan of distribution
under Rule 12b-1 of the 1940 Act, each in accordance with
the 1940 Act and applicable rules and regulations of the
NASD.
(c) Class O Shares shall consist of all outstanding
shares of a Series outstanding on the date of this Amended
and Restated Agreement and Declaration of Trust.
(3) Expenses related solely to a particular class (including
without limitation, distribution expenses under a Rule 12b-1 plan
and administrative expenses under an administration or service
agreement, plan or other arrangement, however designated, which
may differ between the Classes) shall be borne by the Class and
shall be appropriately reflected (in the manner determined by the
Board of Directors) in the net asset value, dividends,
distribution and liquidation rights of the shares of that Class.
-30-
(4) At such time as shall be permitted under the 1940 Act,
any applicable rules and regulations thereunder and the
provisions of any exemptive order applicable to the Trust, and as
may be determined by the Trustees and disclosed in the then
current prospectus for a Series, shares of a particular Class of
a Series may be automatically converted into shares of another
Class of a Series; provided, however, that such conversion shall
be subject to the continuing availability of an opinion of
counsel to the effect that such conversion does not constitute a
taxable event under federal income tax law. The Trustees, in
their sole discretion, may suspend any conversion rights if such
opinion is no longer available.
(5) As to any matter with respect to which a separate vote
of any Class of a Series is required by the 1940 Act or by
Massachusetts law (including, without limitation, approval of any
plan, agreement or other arrangement referred to in subsection
(3) above), such requirement as to a separate vote by that Class
of a Series shall apply, and, if permitted by the 1940 Act or any
rules, regulations or orders thereunder and Massachusetts law,
the Classes shall vote together as a single Class on any such
matter that shall have the same effect on each such Class. As to
any matter that does not affect the interest of a particular
Class, only the holders of shares of the affected Class shall be
entitled to vote.
SECTION 6.2. Establishment and Designation of Certain
----------------------------------------
Portfolios; General Provisions for All Portfolios. Without limiting the
-------------------------------------------------
authority of the Trustees set forth in Section 6.1(a) hereof to establish
and designate further Portfolios, there are hereby established and
designated the following Portfolios: the Growth Fund, the Money Market
Portfolio, Aggressive Growth Fund, Growth and Income Fund, Fixed Income
Fund, and the Municipal Trust Fund. The Shares of such Portfolios, and the
Shares of any further Portfolios that may from time to time be established
and designated by the Trustees shall (unless the Trustees otherwise
determine with respect to some further Portfolio at the time of
establishing and designating the same) have the following relative rights
and preferences:
(a) Assets Belonging to Portfolios. Any portion of the Trust
------------------------------
Property allocated to a particular Portfolio, and all consideration
received by the Trust for the issue or sale of Shares of such
Portfolio,
-31-
together with all assets in which such consideration is invested or
reinvested, all interest, dividends, income, earnings, profits and
gains therefrom, 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 Portfolio and shall
irrevocably belong to that Portfolio for all purposes, and shall be so
recorded upon the books of account of the Trust, and the Shareholders
of such Portfolio shall not have, and shall be conclusively deemed to
have waived, any claims to the assets of any Portfolio of which they
are not Shareholders. Such consideration, assets, interest,
dividends, income, earnings, profits, gains and proceeds, together
with any General Items allocated to that Portfolio as provided in the
following sentence, are herein referred to collectively as "Portfolio
---------
Assets" of such Portfolio, and as assets "belonging to" that
------ ------------
Portfolio. 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 Portfolio
(collectively "General Items"), the Trustees shall allocate such
-------------
General Items to and among any one or more of the Portfolios
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 Portfolio shall
belong to and be part of the Portfolio Assets of that Portfolio. Each
such allocation by the Trustees shall be conclusive and binding upon
the Shareholders of all Portfolios for all purposes.
(b) Liabilities of Portfolios. The assets belonging to each
-------------------------
particular Portfolio shall be charged with the liabilities in respect
of that Portfolio and all expenses, costs, charges and reserves
attributable to that Portfolio, and any general liabilities, expenses,
costs, charges or reserves of the Trust which are not readily
identifiable as pertaining to any particular Portfolio shall be
allocated and charged by the Trustees to and among any one or more of
the Portfolios 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 indebtedness, expenses, costs, charges and
reserves allocated and so charged to a particular Portfolio are herein
referred to as "liabilities of" that Portfolio. Each allocation of
--------------
liabilities, expenses, costs,
-32-
charges and reserves by the Trustees shall be conclusive and binding
upon the Shareholders of all Portfolios for all purposes. Any
creditor of any Portfolio may look only to the assets of that
Portfolio to satisfy such creditor's debt.
(c) Dividends. Dividends and distributions on Shares of a
---------
particular Portfolio 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 Shareholders of that Portfolio,
from such of the income, accrued or realized, and capital gains,
realized or unrealized, and out of the assets belonging to that
Portfolio, as the Trustees may determine, after providing for actual
and accrued liabilities of that Portfolio. All dividends and
distributions on Shares of a particular Portfolio shall be distributed
pro rata to the Shareholders of that Portfolio in proportion to the
number of such Shares held by such holders at the date and time of
record established for the payment of such dividends or distributions,
except that such dividends and distributions shall appropriately
reflect expenses related directly or indirectly to the distribution of
shares of a Class or other expenses attributable to a Class of such
portfolio and except 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, or
that dividends or distributions shall be payable on Shares which have
been tendered by the holder thereof for redemption or repurchase, but
the redemption or repurchase proceeds of which have not yet been paid
to such Shareholder. Such dividends and distributions may be made in
cash or Shares of that Portfolio 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 this Section 6.2.
(d) Liquidation. In the event of the liquidation or dissolution
-----------
of the Trust, the Shareholders of each Portfolio of which Shares are
outstanding shall be
-33-
entitled to receive, when and as declared by the Trustees, the excess
of the Portfolio Assets over the liabilities of such Portfolio. The
assets so distributable to the Shareholders of any particular
Portfolio shall be distributed among such Shareholders and each Class
of such Portfolio, according to their respective rights taking into
account their respective net asset values and the proper allocation of
expenses being borne solely by any Portfolio or and Class of Shares of
a Portfolio. The liquidation of any particular Portfolio may be
authorized by vote of a Majority of the Trustees, subject to the
affirmative vote of "a majority of the outstanding voting securities"
of that Portfolio, as the quoted phrase is defined in the 1940 Act,
determined in accordance with clause (iii) of the definition of
"Majority Shareholder Vote" in Section 1.4 hereof.
-------------------------
(e) Voting. The Shareholders shall have the voting rights set
------
forth in or determined under Article VII hereof.
(f) Redemption by Shareholder. Each holder of Shares of a
-------------------------
particular Portfolio 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
Portfolio at a redemption price equal to the net asset value per Share
of that Portfolio next determined in accordance with subsection (h) of
this Section 6.2 after the Shares are properly tendered for
redemption; provided, that the Trustees may from time to time, in
--------
their discretion, determine and impose a fee for such 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 such Portfolio at the value of
such Securities or assets used in such determination of net asset
value. Notwithstanding the foregoing, the Trust may postpone payment
of the redemption price and may suspend the right of the holders of
Shares of any Portfolio to require the Trust to redeem Shares of that
Portfolio during any period or at any time when and to the extent
permissible under the 0000 Xxx.
(g) Redemption at the Option of the Trust. Each Share of any
-------------------------------------
Portfolio shall be subject to redemption at the option of the Trust at
the redemption price
-34-
which would be applicable if such Share were then being redeemed by
the Shareholder pursuant to subsection (f) of this Section 6.2: (i) 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 of any Portfolio, or (ii) upon
such other conditions with respect to maintenance of Shareholder
accounts of a minimum amount as may from time to time be determined by
the Trustees and set forth in the then current Prospectus of such
Portfolio. 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
---------------
Portfolio at any time shall be the quotient obtained by dividing the
value of the net assets of such Portfolio at such time (being the
current value of the assets belonging to such Portfolio, less its then
existing liabilities) by the total number of Shares of that Portfolio
then outstanding, subject, in the case of any Class, to deduction of
expenses related solely to that Class as contemplated in Section (d)
of Section 6.1, 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
Portfolio at a designated constant dollar amount and in connection
therewith may adopt procedures not inconsistent with the 1940 Act for
the continuing declaration of income attributable to that Portfolio as
dividends payable in additional Shares of that Portfolio at the
designated constant dollar amount and for the handling of any losses
attributable to that Portfolio. Such procedures may provide that in
the event of any loss each Shareholder shall be deemed to have
contributed to the shares of beneficial interest account of that
Portfolio 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 Portfolio to be maintained, after reflecting such loss, at the
designated constant dollar amount. Each Shareholder of the Trust
shall be deemed to have expressly agreed, by his investment in any
Portfolio 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.
-35-
(i) Transfer. All Shares of each particular Portfolio shall be
--------
transferable, but transfers of Shares of a particular Portfolio will
be recorded on the Share transfer records of the Trust applicable to
that Portfolio only at such times as Shareholders shall have the right
to require the Trust to redeem Shares of that Portfolio and at such
other times as may be permitted by the Trustees.
(j) Equality. All Shares of each particular Portfolio shall
--------
represent an equal proportionate interest in the assets belonging to
that Portfolio (subject to the liabilities of that Portfolio), and
each Share of any particular Portfolio shall be equal to each other
Share thereof; but the provisions of this sentence shall not restrict
any distinctions permissible under this Declaration of Trust including
any distinctions contemplated by (i) subsection (f) of Section 6.1 or
(ii) subsection (c) of this Section 6.2 that may exist with respect to
dividends and distributions on Shares of the same Portfolio. The
Trustees may from time to time divide or combine the Shares of any
particular Portfolio into a greater or lesser number of Shares or
Classes of Shares of that Portfolio without thereby changing the
proportionate beneficial interest in the assets belonging to that
Portfolio or in any way affecting the rights of the holders of Shares
of any other Portfolio.
(k) Rights of Fractional Shares. Any fractional Share of any
---------------------------
Series shall carry proportionately all the rights and obligations of a
whole Share of that Series, including rights and obligations with
respect to voting, receipt of dividends and distributions, redemption
of Shares, and liquidation of the Trust or of the Portfolio to which
they pertain.
(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 Portfolio or Class shall have
the right to convert said Shares into Shares of one or more other
Portfolios or Classes in accordance with such requirements and
procedures as the Trustees may establish.
-36-
SECTION 6.3. Ownership of Shares. The ownership of Shares shall
-------------------
be recorded on the books of the Trust or of a Transfer Agent or similar
agent for the Trust, which books shall be maintained separately for the
Shares of each Series that has been authorized. Certificates evidencing
the ownership of Shares need not be issued except as the Trustees may
otherwise determine from time to time, and the Trustees shall have power to
call outstanding Share certificates and to replace them with book entries.
The Trustees may make such rules as they consider appropriate for the
issuance of Share 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 Agent 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 Portfolio held from time to time by each such
Shareholder.
The holders of Shares of each Portfolio shall upon demand
disclose to the Trustees in writing such information with respect to their
direct and indirect ownership of Shares of such Portfolio as the Trustees
deem necessary to comply with the provisions of the Internal Revenue Code,
or to comply with the requirements of any other authority.
SECTION 6.4. Investments in the Trust. The Trustees may accept
------------------------
investments in any Portfolio of the Trust 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 6.5. No Pre-emptive Rights. No Shareholder, by virtue
---------------------
of holding Shares of any Portfolio, shall have any pre-emptive or other
right to subscribe to any additional Shares of that Portfolio, or to any
shares of any other Portfolio, or any other Securities issued by the Trust.
SECTION 6.6. Status of Shares. 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. Shares shall
be deemed to be personal property, giving only the rights provided herein.
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
-37-
division of the same or for an accounting, nor shall the ownership of
Shares constitute the Shareholders partners. The death of a Shareholder
during the continuance of the Trust shall not operate to terminate the
Trust or any Portfolio, 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 Declaration of Trust.
ARTICLE VII
-----------
SHAREHOLDERS' VOTING POWERS AND MEETINGS
----------------------------------------
SECTION 7.1. Voting Powers. The Shareholders shall have power
-------------
to vote only (i) for the election or removal of Trustees as provided in
Sections 4.1(c) and (e) hereof, (ii) with respect to the approval or
termination in accordance with the 1940 Act of any contract with a
Contracting Party as provided in Section 5.2 hereof as to which Shareholder
approval is as required by the 1940 Act, (iii) with respect to any
termination or reorganization of the Trust or any Portfolio to the extent
and as provided in Sections 9.1 and 9.2 hereof, (iv) with respect to any
amendment of this Declaration of Trust to the extent and as provided in
Section 9.3 hereof, (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 Portfolio,
or the Shareholders of any of them (provided, however, that a Shareholder
-------- -------
of a particular Portfolio or Class shall not in any event be entitled to
maintain a derivative or class action on behalf of any other Portfolio or
Class or the Shareholders thereof), 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. If and to the extent that
the Trustees shall determine that such action is required by law, they
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 separate vote of
the outstanding Shares of each Portfolio or Class entitled to vote thereon;
provided, that (i) when expressly required by this Declaration or by the
--------
1940 Act, actions of Shareholders shall be taken by Single Class Voting of
all outstanding Shares of each Series whose holders are entitled to vote
thereon; and (ii) when the Trustees determine that any matter to be
submitted to a vote of Shareholders affects
-38-
only the rights or interests of Shareholders of one or more but not all
Portfolios or Classes, then only the Shareholders of the Portfolios or
Classes so affected shall be entitled to vote thereon.
SECTION 7.2. Number of Votes and Manner of Voting; Proxies. On
---------------------------------------------
each matter submitted to a vote of the Shareholders, each holder of Shares
of any Series or Class, as relevant, shall be entitled to a number of votes
equal to the number of Shares of such Series or Class standing in his name
on the books of the Trust. 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 (2) 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 7.3. 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
(7) days before such meeting, postage prepaid, stating the time, place and
purpose of the meeting, to each Shareholder at the 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 ten percent (10%) of the Shares then
outstanding. If the Trustees shall fail to call or give notice of any
meeting of Shareholders for a period of thirty (30) days after written
application by Shareholders holding at least ten percent (10%) of the
Shares then outstanding requesting that 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 ten percent (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.
-39-
SECTION 7.4. 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 thirty
(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 sixty (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 7.5. 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 Shareholder Vote at a meeting of
which a quorum is present shall decide any question, 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, or
when the Trustees shall in their discretion require a larger vote or the
vote of a majority or larger fraction of the Shares of one or more
particular Series.
SECTION 7.6. 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 or of the
Shares of any particular Series as shall be required by the 1940 Act or by
any express provision of this Declaration of Trust or the By-Laws or as
shall be permitted by the Trustees) consent to the action in writing and if
the writings in which such consent is given are filed with the records of
the meetings of Shareholders, to the same extent
-40-
and for the same period as proxies given in connection with a Shareholders'
meeting. Such consent shall be treated for all purposes as a vote taken at
a meeting of Shareholders.
SECTION 7.7. Inspection of Records. The records of the Trust
---------------------
shall be open to inspection by Shareholders to the same extent as is
permitted stockholders of a Massachusetts business corporation under the
Massachusetts Business Corporation Law.
SECTION 7.8. Additional Provisions. The By-Laws may include
---------------------
further provisions for Shareholders' votes and meetings and related matters
not inconsistent with the provisions hereof.
ARTICLE VIII
------------
LIMITATION OF LIABILITY; INDEMNIFICATION
----------------------------------------
SECTION 8.1. Trustees, Shareholders, etc. Not Personally Liable;
---------------------------------------------------
Notice. The Trustees and officers of the Trust, in incurring any debts,
------
liabilities or obligations, or in limiting or omitting any other actions
for or in connection with the Trust, are or shall be deemed to be acting as
Trustees or officers of the Trust and not in their own capacities. No
Shareholder shall be subject to any personal liability whatsoever in tort,
contract or otherwise to any other Person or Persons in connection with the
assets or the affairs of the Trust or of any Portfolio, and subject to
Section 8.4 hereof, no Trustee, officer, employee or agent of the Trust
shall be subject to any personal liability whatsoever in tort, contract, or
otherwise, to any other Person or Persons in connection with the assets or
affairs of the Trust or of any Portfolio, save only that arising from his
own willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his office or the discharge of his
functions. The Trust (or if the matter relates only to a particular
Portfolio, that Portfolio) shall be solely liable for any and all debts,
claims, demands, judgments, decrees, liabilities or obligations of any and
every kind, against or with respect to the Trust or such Portfolio in tort,
contract or otherwise in connection with the assets or the affairs of the
Trust or such Portfolio, and all Persons dealing with the Trust or any
Portfolio shall be deemed to have agreed that resort shall be had solely to
the Trust Property of the Trust or the Portfolio Assets of such Portfolio,
as the case may be, for the payment or performance thereof.
-41-
The Trustees shall use their best efforts to ensure that 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 Portfolio 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, or to
subject the Portfolio Assets of any Portfolio to the obligations of any
other Portfolio.
SECTION 8.2. Trustees' 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. Subject to Section
8.4 hereof, 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, (i) the Trustees shall not be responsible or liable in any event
for any neglect or wrongdoing of any officer, agent, employee, consultant,
Investment Advisor, Administrator, Distributor or Principal Underwriter,
Custodian or Transfer Agent, Dividend Disbursing Agent, Shareholder
Servicing Agent or Accounting Agent of the Trust, nor shall any Trustee be
responsible for the act or omission of any other Trustee; (ii) 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 (iii) 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 5.2 hereof. The
Trustees as such shall not be required to give any bond or surety or any
other security for the performance of their duties.
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SECTION 8.3. Indemnification of Shareholders. If any
-------------------------------
Shareholder (or former Shareholder) 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, the 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 the heirs, executors, administrators or other
legal representatives thereof, or in the case of a corporation or other
entity, its corporate or other general successor) shall be entitled (but
solely out of the assets of the Portfolio of which such Shareholder or
former Shareholder is or was the holder of Shares) to be held harmless from
and indemnified against all loss and expense arising from such liability.
SECTION 8.4. Indemnification of Trustees, Officers, etc.
------------------------------------------
Subject to the limitations set forth hereinafter in this Section 8.4, the
Trust shall indemnify (from the assets of the Portfolio or Portfolios to
which the conduct in question relates) 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, together with such
Person's heirs, executors, administrators or personal representative,
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 Covered 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
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final decision on the merits by a court or other body before whom the
proceeding was brought that the Covered Person to be indemnified was not
liable by reason of Disabling Conduct, (ii) dismissal of a court action or
an administrative proceeding against a Covered Person for insufficiency of
evidence of Disabling Conduct, or (iii) a reasonable determination, based
upon a review of the facts, that the indemnitee was not liable by reason of
Disabling Conduct by (a) a vote of a majority of a quorum of Trustees who
are neither "interested persons" of the Trust as defined in Section
2(a)(19) of the 1940 Act nor parties to the proceeding, or (b) an
independent legal counsel in a written opinion. Expenses, including
accountants' and counsel fees so incurred by any such Covered Person (but
excluding amounts paid in satisfaction of judgments, in compromise or as
fines or penalties), may be paid from time to time by the Portfolio or
Portfolios to which the conduct in question related 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 such
Portfolio or Portfolios if it is ultimately determined that indemnification
of such expenses is not authorized under this Article VIII 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, 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 8.5. Compromise Payment. As to any matter disposed of
------------------
by a compromise payment by any such Covered Person referred to in Section
8.4 hereof, 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 (i) by a majority of
a quorum of the disinterested Trustees or (ii) by an independent legal
counsel in a written opinion. Approval by the Trustees pursuant to clause
(i) or by independent legal counsel pursuant to clause (ii) shall not
prevent the recovery from any Covered Person of any amount paid to such
Covered Person in accordance with either 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
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disregard of the duties involved in the conduct of such Covered Person's
office.
SECTION 8.6. Indemnification Not Exclusive, etc. The right of
----------------------------------
indemnification provided by this Article VIII shall not be exclusive of or
affect any other rights to which any such Covered Person may be entitled.
As used in this Article VIII, a "disinterested" Person is one against whom
-------------
none of the actions, suits or other proceedings in question, and no other
action, suit or other proceeding on the same or similar grounds is then or
has been pending or threatened. Nothing contained in this Article VIII
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 8.7. Liability of Third Persons Dealing with Trustees.
------------------------------------------------
No person dealing with the Trustees shall be bound to make any inquiry
concerning the validity of any transaction made or to be made by the
Trustees or to see to the application of any payments made or property
transferred to the Trust or upon its order.
ARTICLE IX
----------
DURATION; REORGANIZATION; AMENDMENTS
------------------------------------
SECTION 9.1. 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 Portfolio or Series of
Shares shall operate to terminate the Trust. The Trust may be terminated
at any time by a Majority of the Trustees, subject to the favorable vote of
the holders of not less than a majority of the Shares outstanding and
entitled to vote of each Portfolio of the Trust, or by an instrument or
instruments in writing without a meeting, consented to by the holders of
not less than a majority of such Shares, or by such greater or different
vote of Shareholders of any Series as may be established by the Certificate
of Designation by which such Series was authorized. 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
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any combination thereof, and distribute the proceeds to the Shareholders,
in conformity with the provisions of Section 6.2(d) hereof.
SECTION 9.2. Reorganization. The Trustees may sell, convey and
--------------
transfer all or substantially all of the assets of the Trust, or the assets
belonging to any one or more Portfolios, to another trust, partnership,
association or corporation organized under the laws of any state of the
United States, or may transfer such assets to another Portfolio of the
Trust, in exchange for cash, Shares or other Securities (including, in the
case of a transfer to another Portfolio of the Trust, Shares of such other
Portfolio), or to the extent permitted by law then in effect may merge or
consolidate the Trust or any Portfolio with any other Trust or any
corporation, partnership, or association organized under the laws of any
state of the United States, all upon such terms and conditions and for such
consideration when and as authorized by vote or written consent of a
Majority of the Trustees and approved by the affirmative vote of the
holders of not less than a majority of the Shares outstanding and entitled
to vote of each Portfolio whose assets are affected by such transaction, or
by an instrument or instruments in writing without a meeting, consented to
by the holders of not less than a majority of such Shares, and/or by such
other vote of any Series as may be established by the Certificate of
Designation with respect to such Series. Following such transfer, the
Trustees shall distribute the cash, Shares or other Securities or other
consideration received in such transaction (giving due effect to the assets
belonging to and indebtedness of, and any other differences among, the
various Portfolios of which the assets have so been transferred) among the
Shareholders of the Portfolio of which the assets have been so transferred;
and if all of the assets of the Trust have been so transferred, the Trust
shall be terminated. Nothing in this Section 9.2 shall be construed as
requiring approval of Shareholders for the Trustees (i) to organize or
assist in organizing one or more corporations, trusts, partnerships,
associations or other organizations, and to sell, convey or transfer less
than substantially all of the Trust Property or the assets belonging to any
Portfolio to such organizations or entities, or (ii) to issue Shares of one
or more Portfolios, or to create one or more new Portfolios and issue the
Shares thereof, in order to purchase or otherwise acquire all or part of
the assets of any corporation, trust, partnership, association or other
organization and to hold such assets as part of the Trust Property, so long
as the assets so acquired are assets in which the Trust may invest and
which it may hold in accordance herewith.
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SECTION 9.3. Amendments; etc. 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
liability of any Shareholder or Trustee or the prohibition of assessment
upon the Shareholders (otherwise than as permitted under Section 6.2(h))
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 Trustees (or by an officer of the Trust pursuant to
the vote of a Majority of the Trustees). Any amendment to this Declaration
of Trust that adversely affects the rights of all Shareholders may be
adopted at any time by an instrument in writing signed by a Majority of the
Trustees (or by an officer of the Trust pursuant to a vote of a Majority of
the Trustees) when authorized to do so by the vote in accordance with
Section 7.1 hereof of Shareholders holding a majority of all the Shares
outstanding and entitled to vote, without regard to Series, or if said
amendment adversely affects the rights of the Shareholders of less than all
of the Portfolios, by the vote of the holders of a majority of all the
Shares entitled to vote of each Portfolio so affected. Subject to the
foregoing, any such amendment shall be effective when the instrument
containing the terms thereof and a certificate (which may be a part of such
instrument) to the effect that such amendment has been duly adopted, and
setting forth the circumstances thereof, shall have been executed and
acknowledged by a Trustee or officer of the Trust and filed as provided in
Section 9.4 hereof.
SECTION 9.4. Filing of Copies of Declaration and Amendments.
----------------------------------------------
The original or a copy of this Declaration and of each amendment hereto
(including each Certificate of Designation and Certificate of Termination),
as well as the certificates called for by Section 4.1(k) hereof as to
changes in the Trustees, shall be kept at the office of the Trust where it
may be inspected by any Shareholder, and one copy of each such instrument
shall be filed with the Secretary of The Commonwealth of Massachusetts, as
well as with any other governmental office where such filing may from time
to time be required by the laws of Massachusetts. A restated Declaration,
integrating into a single instrument all of the provisions of this
Declaration which are then in
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effect and operative, may be executed from time to time by a Majority of
the Trustees and shall, upon filing with the Secretary of The Commonwealth
of Massachusetts, be conclusive evidence of all amendments contained
therein and may thereafter be referred to in lieu of the original
Declaration and the various amendments thereto.
ARTICLE X
---------
MISCELLANEOUSS
--------------
SECTION 10.1. Governing Law. This Declaration of Trust is
-------------
executed and delivered in The Commonwealth of Massachusetts and with
reference to the laws thereof, and the rights of all parties and the
construction and effect of every provision hereof shall be subject to and
construed according to the laws of said Commonwealth.
SECTION 10.2. Counterparts. This Declaration of Trust and any
------------
amendment thereto may be simultaneously executed in several counterparts,
each of which so executed shall be deemed to be an original, and such
counterparts, together, shall constitute but one and the same instrument,
which shall be sufficiently evidenced by any such original counterpart.
SECTION 10.3. Reliance by Third Parties. Any certificate
-------------------------
executed by an individual who, according to the records in the office of
the Secretary of The Commonwealth of Massachusetts appears to be a Trustee
hereunder, certifying to: (a) the number or identity of Trustees or
Shareholders, (b) the due authorization of the execution of any instrument
or writing, (c) the form of any vote passed as a meeting of Trustees or
Shareholders, (d) the fact that the number of Trustees or Shareholders
present at any meeting or executing any written instrument satisfies the
requirements of this Declaration of Trust, (e) the form of any By-Law
adopted, or the identity of any officers elected, by the Trustees, or (f)
the existence or non-existence of any fact or facts which in any manner
relate to the affairs of the Trust, shall be conclusive evidence as to the
matters so certified in favor of any Person dealing with the Trustees, or
any of them, and the successors of such Person.
SECTION 10.4. References; Headings. 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 of this
Declaration or control or affect the meaning, construction or effect
hereof.
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SECTION 10.5. Use of the Name "Winthrop". Wood, Xxxxxxxxx &
--------------------------
Winthrop Management Corp. ("Wood, Xxxxxxxxx & Winthrop") has consented to
--------------------------
the use by the Trust of the identifying name ("Winthrop"), which is a
--------
property right of Wood, Xxxxxxxxx & Winthrop. The Trust will only use the
name "Winthrop" as a component of its name and for no other purpose, and
will not purport to grant to any third party the right to use the name
"Winthrop" for any purpose. Winthrop or any corporate affiliate of Wood,
Xxxxxxxxx & Winthrop may use or grant to others the right to use the name
"Winthrop", as all or a portion of a corporate or business name or for any
commercial purpose, including a grant of such right to any other investment
company. At the request of Wood, Xxxxxxxxx & Winthrop, the Trust will take
such action as may be required to provide its consent to the use of such
name by Wood, Xxxxxxxxx & Winthrop, or any corporate affiliate of Wood,
Xxxxxxxxx & Winthrop, or by any Person to whom Wood, Xxxxxxxxx & Winthrop
or an affiliate of Wood, Xxxxxxxxx & Winthrop shall have granted the right
to the use of the name "Winthrop". Upon the termination of any investment
advisory or management agreement into which Wood, Xxxxxxxxx & Winthrop and
the Trust may enter, the Trust shall, upon request by Wood, Xxxxxxxxx &
Winthrop, cease to use the name "Winthrop" as a component of its name, and
shall not use such name or initials as a part of its name or for any other
commercial purpose, and shall cause its officers and Trustees to take any
and all actions which Wood, Xxxxxxxxx & Winthrop may request to effect the
foregoing and to reconvey to Wood, Xxxxxxxxx & Winthrop or such corporate
affiliate any and all rights to such name.
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IN WITNESS WHEREOF, the undersigned being at least a Majority of
the Trustees of the Trust have executed this instrument as of the date
first above written.
XXXXXX X. XXXX, as Trustee
and not individually
-------------------------
X. XXXXXXX XXXXXXX, as Trustee
and not individually
-------------------------
XXXXX X. XXXXX, as Trustee
and not individually
-------------------------
XXXX X. XXXXXX, as Trustee
and not individually
-------------------------
STIG HOST, as Trustee
and not individually
-------------------------
XXXXX X. XXXXX, as Trustee
and not individually
-------------------------
XXXXXX X. XXXXXX, as Trustee
and not individually
-------------------------
XXXXXXX X. XXXXXXX, as Trustee
and not individually
-------------------------
XXXX X. XxXXXX, as Trustee
and not individually
-------------------------
XXXX X. XXXXXX, as Trustee
and not individually
-------------------------
XXXX X. XXXXXXX, as Trustee
and not individually
-------------------------
XXXXXXX X. XXXXXXX, as Trustee
and not individually
-------------------------
XXXXXXX X. XXXX, as Trustee
and not individually
-------------------------
The address of each of the above is:
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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