GLOBAL CHINA GROWTH FUND
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AGREEMENT AND DECLARATION OF TRUST
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Dated: February 14, 2003
AGREEMENT AND DECLARATION OF TRUST
OF
GLOBAL CHINA GROWTH FUND
This AGREEMENT AND DECLARATION OF TRUST (this "DECLARATION" or
"DECLARATION OF TRUST") made at Boston, Massachusetts this 14th day of February,
2003 by and between Xxxxxxxx X. Xxxx, an individual residing in Marshfield,
Massachusetts, as settlor (the "SETTLOR"), and X. Xxx X. Xxxxxx, an individual
residing in Belmont, Massachusetts, as trustee (the "INITIAL TRUSTEE"),
W I T N E S S E T H T H A T:
WHEREAS, the Settlor proposes to deliver to the Initial Trustee the sum
of ten dollars ($10.00) lawful money of the United States of America in trust
hereunder, and to authorize the Initial Trustee and all other Persons acting as
Trustees under this Declaration to employ such funds, and any other 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 hereof; and
WHEREAS, the Initial Trustee is willing to accept such sum, together
with any and all additions thereto and the income or increments thereof, upon
the terms, conditions and trusts 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 the laws of
Massachusetts, of the type commonly known as and referred to as a Massachusetts
business trust, in accordance with the provisions hereinafter set forth, and
that the beneficial interest in the Trust be divided into transferable shares of
beneficial interest (as more fully defined in SECTION 1.4, below, "SHARES"); and
WHEREAS, it is desired that the Trustees be empowered to divide the
assets held by the Trustees into separate portfolios, each with its own separate
investment assets, investment objectives, policies and purposes, and to
establish a separate Series of Shares for each portfolio to represent the
beneficial interest therein, all in accordance with the provisions hereinafter
set forth,
NOW, THEREFORE, the Initial Trustee, for himself and his successors as
Trustees, hereby declares, and agrees with the Settlor, for herself 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 the sum delivered to them
upon the execution hereof, and all other and further 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
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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 1
THE TRUST
SECTION 1.1. NAME. The name of the Trust shall be "Global China Growth
Fund", 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 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
or Class. If the Trustees determine that the use of such name is not
practicable, legal or convenient at any time or in any jurisdiction, 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 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
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 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 Declaration of
Trust, the following terms shall have the meanings set forth below or at the
places indicated below, unless the context thereof otherwise requires:
"ACCOUNTING AGENT": as defined in SECTION 5.2(G).
"ADMINISTRATOR": as defined in SECTION 5.2(B).
"AFFILIATED PERSON": as defined in the 1940 Act.
"BY-LAWS": the By-Laws of the Trust, as amended from time to time.
"CERTIFICATE OF DESIGNATION": as defined in SECTION 6.1(C).
"CERTIFICATE OF TERMINATION": as defined in SECTION 6.1(C).
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"CLASS" or "CLASSES": with respect to any Series of Shares, any Shares
of such Series in respect of which the Trustees shall from time to time fix and
determine any special provisions relating to sales charges, any 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 such Class shall have separate voting rights or no voting
rights.
"COMMISSION": as defined in the 1940 Act.
"CONTRACTING PARTY": as defined in the preamble to SECTION 5.2.
"COVERED PERSON": as defined in SECTION 8.4.
"CUSTODIAN": as defined in SECTION 5.2(D).
"DECLARATION" and "DECLARATION OF TRUST": as defined in the preamble
hereto, PROVIDED, that such term shall include all amendments or modifications
thereof as from time to time in effect. Words such as "HEREOF", "HEREIN",
"HEREUNDER", "HEREBY" and the like shall be deemed to refer to the Declaration
of Trust generally, and shall not be limited to the particular text, Article or
Section in which such words appear.
"DISABLING CONDUCT": as defined in SECTION 8.4.
"DISTRIBUTOR": as defined in SECTION 5.2(C).
"DIVIDEND DISBURSING AGENT": as defined in SECTION 5.2(E).
"GENERAL ITEMS": as defined in SECTION 6.2(A).
"INITIAL FUND": as defined in the preamble to SECTION 6.2.
"INITIAL TRUSTEE": as defined in the preamble hereto.
"INTERNAL REVENUE CODE": the Internal Revenue Code of 1986, as from
time to time amended and in effect, or any substituted statute dealing with the
same general subject matter as the Internal Revenue Code of 1986, and in either
case the rules and regulations thereunder, as from time to time interpreted and
applied by applicable case law thereunder.
"INVESTMENT ADVISER": as defined in SECTION 5.2(A)
"MAJORITY OF THE TRUSTEES": a majority of the Trustees 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 of
any Trustee at a meeting of Shareholders, the vote for the election of such
Trustee of a plurality of all outstanding Shares of the Trust, without regard to
Series or Class, represented in person or by proxy and entitled to vote thereon,
provided that a quorum (determined as provided in SECTION 7.5 hereof) is
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present, and as used with respect to any other action required or permitted to
be taken by Shareholders, shall mean the affirmative vote for such action of the
holders of that number 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 number of the outstanding Shares of that Series or Class) of the Trust
which constitutes either: (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 as provided in SECTION 7.5 hereof)
is present; or (II) if such vote is to be given or 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 requiring the
affirmative vote of "a majority of the outstanding voting securities", as the
quoted phrase is defined in the 1940 Act, of the Trust or of any Series or
Class, "MAJORITY SHAREHOLDER VOTE" 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.
"1940 ACT": the provisions of the Investment Company 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": any individual, corporation, limited partnership, general
partnership, limited liability company, joint stock company, joint venture,
association, bank, trust company, land trust, business trust or other
organization established under the laws of any jurisdiction, whether or not
considered to be legal entities, and governments and agencies and political
subdivisions thereof.
"FUND" or "FUNDS": any one or more of the 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 6 hereof.
"FUND ASSETS": as defined in SECTION 6.2(A).
"PRINCIPAL UNDERWRITER": as defined in in SECTION 5.2(C).
"PROSPECTUS": with respect to any Fund or Series of Shares, the
prospectus relating to such Fund 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": any and all bills, notes, bonds, 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 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,
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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": any Securities issued by the Trust.
"SERIES": one or more of the series of Shares authorized by the
Trustees, each to represent the beneficial interests in one of the Funds of the
Trust.
"SETTLOR": as defined in the preamble hereto.
"SHAREHOLDER": as of any particular time, any Person shown of record at
such time on the books of the Trust as a holder of outstanding Shares of any
Series or Class, including a pledgee into whose name any such Shares are
transferred in pledge.
"SHAREHOLDER SERVICING AGENT": as defined in SECTION 5.2(F).
"SHARES": the transferable units into which the beneficial interest in
the Trust and each Fund 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" which are not accompanied by a
reference to any particular Series or Class shall be deemed to apply to
outstanding Shares without regard to Series or Class.
"SINGLE CLASS VOTING": with respect to any matter to be acted upon at a
meeting or by written consent of Shareholders, 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 or Class, and all outstanding Shares of all Series or
Class vote as a single class.
"STATEMENT OF ADDITIONAL INFORMATION,": with respect to any Series or
Class of Shares, the statement of additional information relating to such Series
or Class, 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": as defined in Section 5.2(e).
"TRUST: as defined in the third "Whereas" clause set forth above.
"TRUST PROPERTY": as of any particular time, any and 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 Fund to which such property is allocated.
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"TRUSTEES": collectively, the Initial Trustee, so long as he shall
continue in office, and all other individuals who at the 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.
ARTICLE 2
PURPOSE OF THE TRUST
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 objectives 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 objectives, 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 3
POWERS OF THE TRUSTEES
SECTION 3.1. POWERS IN GENERAL. The Trustees shall have, 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 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 providing for the conduct of the business and
affairs of the Trust and may amend and repeal them to the extent that such
By-Laws do not reserve that right to the Shareholders; they may 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 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
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SECTION 6.1 hereof establish one or more Funds to which they may allocate such
of the Trust Property, subject to such liabilities, as they shall deem
appropriate, each such Fund 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 Advisers, 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 Adviser,
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:
(a) INVESTMENTS. To invest and reinvest cash and other
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. 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 and conditions
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
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
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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
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 Fund 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
plan for the reorganization, consolidation or merger of any corporation
or issuer, any Security of which is or was held in the Trust or any
Fund; 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
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
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 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 limited partnerships and any other combinations or associations;
(j) INSURANCE. To purchase and pay for entirely out of Trust
Property such insurance as they may deem necessary or appropriate for
the conduct of the business, including, without limitation, insurance
policies insuring the assets of the Trust and payment of distributions
and principal on its PORTFOLIO investments, and insurance policies
insuring the Shareholders, Trustees, officers, employees, agents,
consultants, Investment
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Advisers, 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
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 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;
(m) ISSUANCE AND REPURCHASE OF SHARES. To issue, sell,
repurchase, redeem, retire, cancel, acquire, hold, resell, reissue,
dispose of, transfer, and otherwise deal in Shares of any Series, and,
subject to ARTICLE 6 hereof, to apply to any such repurchase,
redemption, retirement, cancellation or acquisition of Shares of any
Series, any of the Fund Assets belonging to the Fund 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 voted,
directly or indirectly;
(n) OFFICES. To have one or more offices, and to carry on all
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
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
servants, agents, employees, attorneys, brokers, investment advisers,
accountants, architects, engineers,
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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 Fund, 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
method or form in which the accounts of the Trust shall be kept;
(r) VALUATION. Subject to the requirements of the 1940 Act, to
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 information as is, in the
Trustees' sole judgment, necessary and satisfactory;
(s) INDEMNIFICATION. In addition to the mandatory
indemnification provided for in Article 8 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
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 Fund 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 Fund, 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 Fund, or otherwise to
carry out the provisions of this Declaration.
SECTION 3.2. BORROWINGS; FINANCINGS; ISSUANCE OF SECURITIES. The
Trustees shall 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 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 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
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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 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 of the consideration
paid for Shares of any Series to the shares of beneficial interest account of
the Fund to which such Shares relate and to allocate the balance thereof to
paid-in capital of that Fund, 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 to 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, 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 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 4
TRUSTEES AND OFFICERS
SECTION 4.1. NUMBER, DESIGNATION, ELECTION, TERM, ETC.
(a) INITIAL TRUSTEE. Upon his execution of this Declaration or
a counterpart hereof or some other writing in which he accepts such
Trusteeship and agrees to the provisions hereof, the individual whose
signature is affixed hereto as Initial Trustee shall become the Initial
Trustee hereof.
(b) NUMBER. The Trustees serving as such, whether named below
or hereafter becoming Trustees, may, 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), increase or
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decrease the number of Trustees to a number other than the number
theretofore determined. No decrease in the number of Trustees shall
have the effect of removing any Trustee from office prior to the
expiration of his term, but the number of Trustees may be decreased in
conjunction with the removal of a Trustee pursuant to SUBSECTION (E) of
this SECTION 4.L.
(c) 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 such Trustee's successor in office has become
effective in accordance with this SUBSECTION (C).
(d) 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.
(e) 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 at least two-thirds (2/3) of the Shares of each
Series then outstanding and filed with the Trust's Custodian.
(f) 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, except that any such appointment in
anticipation of a vacancy to occur by reason of retirement, resignation
or increase in the number of Trustees
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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.
(g) 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 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.
(h) 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. 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.
(i) 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.
(j) 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.
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 or the By-Laws, any action to be taken by the Trustees may be taken
by a majority of the Trustees present at
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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.
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 or Class 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 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,
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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 AND TO
ENGAGE IN BUSINESS; AUTHORITY OF TRUSTEES 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 or her own individual
account, any property, and acquire, own, hold, carry on and dispose of, for his
or her 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 or she 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 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.
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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 Fund, 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; 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 Funds 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 Adviser, 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 Fund, 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 Fund therein is appropriately protected. The right,
title and interest of the Trustees in
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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 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 5
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 to conduct all the business of the Trust in
person, 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 ("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 Fund, 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. One or more investment advisory or management
agreements, each with an investment manager or adviser (each, an
"INVESTMENT ADVISER"), whereby the Investment Adviser 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
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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 Adviser (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
Adviser (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
Fund should fail to approve any such investment advisory or management
agreement, the Investment Adviser may nonetheless serve as Investment
Adviser with respect to any other Fund whose Shareholders shall have
approved such contract.
(b) ADMINISTRATION. One or more agreements, each with a
provider of administrative and clerical services whereby the other
party shall, as agent for the Trustees, but 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 Fund,
supervise all or any part of the operations of the Trust and each Fund,
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
Fund (any such agent being herein referred to as an "ADMINISTRATOR").
(c) DISTRIBUTION. One or more agreements, each with a broker
or dealer in securities, providing for the sale of Shares of any one or
more Series, or Classes of any Series, to net the Trust not less than
the net asset value per Share (as described in SECTION 6.2(G) 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
underwriter or sales agent being herein referred to as a "PRINCIPAL
UNDERWRITER" or a "DISTRIBUTOR", as the case may be).
(d) CUSTODIAN. One or more agreements, each with a bank or
trust company as custodian of the Securities and cash of the Trust and
of each Fund and of the accounting records in connection therewith (any
bank or trust company so appointed being herein referred to as a
"CUSTODIAN").
(e) TRANSFER AND DIVIDEND DISBURSING AGENCY. One or more
agreements, each with an agent to maintain records of the ownership of
outstanding Shares, and the issuance
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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").
(f) SHAREHOLDER SERVICING. One or more agreements, each 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. One or more agreements, each 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 6
FUNDS AND SHARES
SECTION 6.1. DESCRIPTION OF FUNDS AND SHARES.
(a) SHARES; FUNDS; SERIES OF SHARES. The beneficial interest
in the Trust shall be divided into Shares having a nominal or par value
of one mill ($.001) per Share, of which an unlimited number may be
issued. The Trustees shall have the power and authority (without any
requirement of Shareholder approval) from time to time to establish and
designate one or more separate, distinct and independent Funds, in
addition to the Global China Growth Fund established and designated by
SECTION 6.2 hereof, into which the assets of the Trust shall be
divided, to authorize a separate Series of Shares for each such
additional Fund (each of which Series, including without limitation the
Global China Growth Fund Series authorized in SECTION 6.2 hereof, shall
represent beneficial interests only in the Fund with respect to which
such Series was authorized), and to fix and determine as to the Shares
of each such Series the rights of the holders as to redemption and the
price, terms and manner of redemption, rights as to dividends and other
distributions and on liquidation, sinking or purchase fund provisions,
conversion rights, and conditions under which the Shareholders of such
Series shall have separate voting
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rights or no voting rights. Each such Fund shall be a separate
component of the assets of the Trust, and the holders of Shares of the
Series representing the beneficial interests in that Fund shall be
considered Shareholders of such Fund, but 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 Fund as to such Fund, or as required by the
1940 Act or other applicable law, the right to vote, all without
distinction by Series. Except as otherwise provided as to a particular
Fund herein, or in the Certificate of Designation (as defined in
SUBSECTION (C) of this SECTION 6.1) therefor, the Trustees shall have
all the rights and powers, and be subject to all the duties and
obligations, with respect to each such Fund and the assets and affairs
thereof as they have under this Declaration with respect to the Trust
and the Trust Property in general.
(b) CLASSES OF A SERIES. The Trustees may in their discretion,
without a vote of Shareholders, classify or reclassify any unissued
Shares of any Series, or any Shares of any Series previously issued and
reacquired by the Trust (including in either case any Shares of the
Global China Growth Fund established and designated by SECTION 6.2
hereof), whether or not the Shares of such Series had theretofore been
divided into Classes, into any number of additional Classes of such
Series. The different Classes of a Series shall represent interests in
the Trust Property of that Series, and shall be identical, except that
the Trustees may provide that (i) expenses related directly or
indirectly to the distribution of the Shares of a particular Class (as
shall be determined by the Trustees) shall be borne solely by such
Class, and (ii) Shares of the separate Classes may be subject to
different sales charges, rights of redemption and the price, terms and
manner of redemption, special and relative rights as to dividends and
other distributions and on liquidation, and may be made convertible,
either after the lapse of time or upon the occurrence of specific
events, and either automatically or at the election of the holder
thereof, into Shares of a different Class of the same Series.
(c) ESTABLISHMENT, ETC. OF FUNDS AND CLASSES; AUTHORIZATION OF
SHARES. The establishment and designation of any Fund in addition to
the Global China Growth Fund established and designated in SECTION 6.2
hereof, or of any Class or Classes of Shares of any Series, and the
authorization of the Shares thereof, shall be effective when a Majority
of the Trustees (or an officer of the Trust pursuant to the vote of a
Majority of the Trustees) shall have executed an instrument
establishing and designating (i) such Fund and the Series (and Classes,
if any) of Shares representing the beneficial interests therein, or
(ii) the relative rights and preferences of such Class or Classes, as
the case may be, and in either case the manner in which the same may be
amended (a "CERTIFICATE OF DESIGNATION"), which may provide that the
number of Shares of any such Series or Class that may be issued is
unlimited, or may limit the number issuable. At any time that there are
outstanding (a) no Shares of a Series, including the Global China
Growth Fund Series established and designated by SECTION 6.2 hereof, or
(b) no shares of a particular Class previously established and
designated for any Series, and no Shares of any other Class of such
Series which are convertible into Shares of that Class, 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 Series and the Fund to which it pertains (in
case (a)), or such Class (in case (b)), and the establishment and
designation
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thereof and the authorization of its Shares (a "CERTIFICATE OF
TERMINATION"). Each Certificate of Designation or 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 as provided in SECTION 9.4 hereof, but such filing shall
not be a prerequisite to the effectiveness thereof.
(d) CONSIDERATION FOR SHARES. The Trustees may issue 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).
(e) RECLASSIFICATIONS. The Trustees may in their discretion,
without any vote of Shareholders, classify or reclassify any unissued
Shares of a Series or Class, or any Shares of any Series or Class
previously issued and thereafter reacquired by the Trust, into Shares
of one or more other Series or Classes that may be established and
designated from time to time.
SECTION 6.2. ESTABLISHMENT AND DESIGNATION OF THE GLOBAL CHINA GROWTH
FUND AND OF THE SHARES THEREOF; GENERAL PROVISIONS FOR ALL FUNDS. Without
limiting the authority of the Trustees set forth in SECTION 6.1(A) hereof to
establish and designate further Funds, there is hereby established and
designated the Global China Growth Fund (the "INITIAL FUND") and the Shares
thereof, of which an unlimited number may be issued, and which shall be known as
the Global China Growth Fund Series. The Shares of the Global China Growth Fund
Series, and the Shares representing the beneficial interest in any further Funds
that may from time to time be established and designated by the Trustees shall
(unless the Trustees otherwise determine with respect to some further Fund at
the time of establishing and designating the same) have the following relative
rights and preferences:
(a) ASSETS BELONGING TO FUNDS. Any portion of the Trust
Property allocated to a particular Fund, and all consideration received
by the Trust for the issue or sale of Shares of such Fund, 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 Fund and shall irrevocably belong to that
Fund for all purposes, and shall be so recorded upon the books of
account of the Trust, and the Shareholders of such Fund shall not have,
and shall be conclusively deemed to have waived, any claims to the
assets of any Fund 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
Fund as provided in the following sentence, are herein referred to
collectively as "FUND ASSETS" of such Fund, and as assets "BELONGING
TO" that Fund. If there shall be any assets, income, earnings, profits,
and proceeds thereof, funds, or
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payments which are not readily identifiable as belonging to any
particular Fund (collectively "GENERAL ITEMS"), the Trustees shall
allocate such General Items to and among any one or more of the Funds
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 Fund shall belong to and
be part of the Fund Assets of that Fund. Each such allocation by the
Trustees shall be conclusive and binding upon the Shareholders of all
Funds for all purposes.
(b) LIABILITIES OF FUNDS. The assets belonging to each
particular Fund shall be charged with the liabilities in respect of
that Fund and all expenses, costs, charges and reserves attributable to
that Fund, and any general liabilities, expenses, costs, charges or
reserves of the Trust which are not readily identifiable as pertaining
to any particular Fund shall be allocated and charged by the Trustees
to and among any one or more of the Funds 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 Fund are herein referred to as "LIABILITIES OF" that Fund.
Each allocation of liabilities, expenses, costs, charges and reserves
by the Trustees shall be conclusive and binding upon the Shareholders
of all Funds for all purposes. Any creditor of any Fund may look only
to the assets of that Fund to satisfy such creditor's debt, and the
creditors of a particular Class of a Fund may look only to the share of
that Class in the assets of the Fund to which it pertains to satisfy
their claims.
(c) DIVIDENDS. Dividends and distributions on Shares of a
particular Series may be paid with such frequency as the Trustees may
determine, which may be daily or otherwise pursuant to a standing
resolution or resolutions adopted only once or with such frequency as
the Trustees may determine, to the Shareholders of that Series, from
such of the income, accrued or realized, and capital gains, realized or
unrealized, and out of the assets belonging to the Fund to which such
Series pertains, as the Trustees may determine, after providing for
actual and accrued liabilities of that Fund. All dividends and
distributions on Shares of a Series without separate Classes shall be
distributed pro rata to the holders of Shares of that Series 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. Dividends and distributions on the Shares of a Fund
having separate Classes of Shares shall be in such amount as may be
declared from time to time by the Trustees, and such dividends and
distributions may vary as between such Classes to reflect differing
allocations among such Classes of the liabilities, expenses, costs,
charges and reserves of such Fund, and any resultant differences
between the net asset value of such several Classes, to such extent and
for such purposes as the Trustees may deem appropriate, but dividends
and distributions on the Shares of a particular Class shall be
distributed pro rata to the Shareholders of that Class 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 and distributions.
Notwithstanding the last two preceding sentences, the Trustees may
determine, in connection with any dividend or distribution program or
procedure, 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
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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. Dividends and distributions on the Shares of a Series
may be made in cash or Shares of any Class of that Series 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 Fund of which Shares
are outstanding shall be entitled to receive, when and as declared by
the Trustees, the excess of the Fund Assets over the liabilities of
such Fund. The assets so distributable to the Shareholders of any
particular Series without separate Classes of Shares shall be
distributed among such Shareholders in proportion to the number of
Shares of that Series held by them and recorded on the books of the
Trust. The assets so distributable to the Shareholders of any Fund
having separate Classes of Shares shall be allocated among such Classes
in proportion to the respective aggregate net asset value of the
outstanding Shares thereof, and shall be distributed to the
Shareholders of each such Class in proportion to the number of Shares
of that Class held by them and recorded on the books of the Trust. The
liquidation of any Fund, or any Class of any Fund, 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 the Series
representing the beneficial interests in that Fund, or in that Class of
such Series, 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 7 hereof.
(f) REDEMPTION BY SHAREHOLDER. Each holder of Shares of a
particular Series or Class 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 such Shares at a
redemption price equal to the net asset value per Share of that Series
or Class 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, and the proceeds of the
redemption of Shares (including a fractional Share) of any Series or
Class shall be reduced by the amount of any applicable contingent
deferred sales charge payable on such redemption pursuant to the terms
of the initial issuance of the Shares of such Series or Class (to the
extent consistent with the 1940 Act or regulations or exemptions
thereunder). The redemption price of Shares redeemed under this
SUBSECTION (F) shall be paid in cash; PROVIDED, that if the Trustees
determine, which determination shall be conclusive, that conditions
exist with respect to any Series or Shares, or one or more Classes of
any Series, which make payment wholly in cash unwise or undesirable,
the Trust may make payment
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wholly or partly in Securities or other assets belonging to the Fund to
which such Series or Class pertains, 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 Series or
Class to require the Trust to redeem such Shares during any period or
at any time when and to the extent permissible under the 1940 Act.
(g) REDEMPTION AT THE OPTION OF THE TRUST. Each Share of any
Fund shall be subject to redemption at the option of the Trust at the
redemption price 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 Fund,
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 Fund. 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. Subject to the provisions of the two
sentences immediately following, the net asset value per Share of any
Series without Classes, or of any Class of a Series having separate
Classes, at any time shall be the quotient obtained by dividing the
value of the net assets of the Fund to which such Series or Class
pertains, at such time (being the current value of the assets belonging
to such Fund, or the share of such Class therein, less the then
existing liabilities or such Fund, or the share of such Class in such
liabilities) by the total number of Shares of that Series or Class then
outstanding, all determined in accordance with the methods and
procedures, including without limitation those with respect to
rounding, established by the Trustees from time to time. The aggregate
net asset value of the several Classes of a Fund having separate
Classes of Shares shall be separately computed, and may vary from one
another. The Trustees shall establish procedures for the allocation of
investment income or capital gains and expenses and liabilities of a
Fund having separate Classes of Shares among the several Classes of
such Fund, in order to reflect the varying net asset values of, and the
liabilities and expenses attributable to, such Classes. The Trustees
may determine to maintain the net asset value per Share of any Fund 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 Fund as dividends payable in
additional Shares of that Fund at the designated constant dollar amount
and for the handling of any losses attributable to that Fund. 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 Fund his pro rata portion of the total number
of Shares required to be canceled in order to permit the net asset
value per Share of that Fund 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 investing in any
Fund 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.
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(i) TRANSFER. All Shares of the Trust shall be transferable,
but transfers of Shares of a particular Fund will be recorded on the
Share transfer records of the Trust applicable to that Fund only at
such times as Shareholders shall have the right to require the Trust to
redeem Shares of that Fund and at such other times as may be permitted
by the Trustees.
(j) EQUALITY. All Shares of each Series without Classes shall
represent an equal proportionate interest in the assets belonging to
the Fund to which such Series pertains (subject to the liabilities of
that Fund), and each Share of any such Fund shall be equal to each
other Share thereof. All Shares of each Class of Shares of any Series
having separate Classes of Shares shall represent an equal
proportionate interest in the share of such Class in the assets
belonging to the Fund to which such Series pertains, subject to a like
share of the liabilities of such Fund, adjusted for any liabilities
specifically allocable to that Class, and each Share of any such Class
shall be equal to each other Share thereof; but the interests
represented by the Shares of the different Classes of a Series having
separate Classes of Shares shall reflect any distinctions among the
several Classes of such Series existing under this SECTION 6.2 or
SECTION 7.1 hereof, or under the Certificate of Designation for the
Fund to which such Series pertains. The Trustees may from time to time
divide or combine the Shares of any Series, or any Class of any Series,
into a greater or lesser number of Shares of that Series or Class
without thereby changing the proportionate beneficial interest in the
assets belonging to the Fund to which such Series pertains, or in any
way affecting the rights of the holders of Shares of any other Series
or Class.
(k) RIGHTS OF FRACTIONAL SHARES. Any fractional Share of any
Series or Class of Shares shall carry proportionately all the rights
and obligations of a whole Share of that Series or Class, including
rights and obligations with respect to voting, receipt of dividends and
distributions, redemption of Shares, and liquidation of the Trust or of
the Fund 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 Series shall have the right to
convert said Shares into Shares of one or more other Series in
accordance with such requirements and procedures as the Trustees may
establish.
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 and Class 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 Series and/or Class held from time to
time by each such Shareholder.
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The holders of Shares of each Series and Class shall upon demand
disclose to the Trustees in writing such information with respect to their
direct and indirect ownership of Shares of such Series or Class 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 Fund 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 Series or Class, shall have any preemptive or other right
to subscribe to any additional Shares of that Series or Class, or to any shares
of any other Series or Class, 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 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 Fund, 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.
ARTICLE 7
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 required by the 1940 Act,
(III) with respect to any termination or reorganization of the Trust or any Fund
to the extent and as provided in SECTIONS 9.1 and 9.2 hereof, (IV) with respect
to any amendment of this Declaration 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 Fund, or the Shareholders of any of them
(PROVIDED, that no Shareholder shall be entitled to maintain a derivative or
class action only on behalf of a Fund (or the Shareholders thereof) of which he
or she is the record owner of outstanding Shares), 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
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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 or by this Declaration, 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 Fund entitled to vote thereon; PROVIDED, that (I) when expressly required
by the 1940 Act or other law, actions of Shareholders shall be taken by Single
Class Voting of all outstanding Shares of each Series and Class 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 only the rights or
interests of Shareholders of one or more but not all Funds, or of one or more
but not all Classes of a single Fund (including without limitation any
distribution plan pursuant to Rule 12b-1 under the 1940 Act applicable to any
such Fund or Class), then only the Shareholders of the Funds or Classes so
affected shall be entitled to vote thereon. Without limiting the generality of
the foregoing, and except as required by the 1940 Act or other law, the
Shareholders of each Class shall have exclusive voting rights with respect to
the provisions of any distribution plan adopted by the Trustees pursuant to Rule
12b-1 under the 1940 Act (a "PLAN") applicable to such Class.
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 shall be entitled to a number of votes equal to the number of Shares of
such Series standing in such Shareholder's 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 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.
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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 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 on a matter shall be a quorum for the transaction of business
with respect to such matter 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 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 or Classes.
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 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 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 8
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 taking or omitting
-29-
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 Fund, 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 Fund, 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 Fund, that Fund) 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 Fund in tort,
contract or otherwise in connection with the assets or the affairs of the Trust
or such Fund, and all Persons dealing with the Trust or any Fund shall be deemed
to have agreed that resort shall be had solely to the Trust Property of the
Trust or the Fund Assets of such Fund, as the case may be, for the payment or
performance thereof.
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
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 Fund 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 Fund Assets of any Fund to the obligations of any other Fund.
SECTION 8.2. TRUSTEES' GOOD FAITH ACTION; EXPERT ADVICE; NO BOND OR
SURETY. The exercise by the Trustees of their powers and discretion hereunder
shall be binding upon everyone interested. 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 Adviser, 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 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 Fund 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 Fund or Funds 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 he or she may be or may have been involved as a party or otherwise or with
which he or she 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 he or she (I) did not act in good faith in the reasonable belief
that his or her 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 his or her office
(either and both of the conduct described in clauses (I) and (II) of this
sentence being referred to hereafter as "DISABLING Conduct"). A determination
that a Covered Person is entitled to indemnification may be made by (I) a final
decision on the merits by a court or other body before whom the proceeding was
brought that he or she was not liable by reason of Disabling Conduct, (II)
dismissal of a court action or an administrative proceeding against him or her
for insufficiency of evidence of Disabling Conduct, or (III) a reasonable
determination, based upon a review of the facts, that he or she 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 Fund or Funds 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 Fund or Funds if it is ultimately determined that indemnification
of such expenses is not authorized under this ARTICLE 8 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
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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 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 8 shall not be exclusive of or affect
any other rights to which any such Covered Person may be entitled. As used in
this ARTICLE 8, 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 8 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 9
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 Fund 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 Fund 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
-32-
anticipated as may be determined by the Trustees, the Trust shall in accordance
with such procedures as the Trustees consider appropriate reduce the remaining
assets to distributable form in cash, Securities or other property, or any
combination thereof, and distribute the proceeds to the Shareholders, in
conformity with the provisions of 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 Fund Assets of any
one or more Funds of the Trust, to another trust, partnership, association or
corporation organized under the laws of any state of the United States, or may
transfer the assets of one Fund of the Trust to another Fund of the Trust, in
exchange for cash, shares of the transferee or other Securities, or to the
extent permitted by law then in effect may merge or consolidate the Trust or any
Fund 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 Fund 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 Funds whose assets have so been
transferred) among the Shareholders of such Funds; 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 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 Fund to such organizations or entities.
SECTION 9.3. AMENDMENTS; ETC. All rights granted to the Shareholders
under this Declaration are granted subject to the reservation of the right to
amend this Declaration as herein provided, except that no amendment shall repeal
the limitations on personal liability of any Shareholder or Trustee or the
prohibition of assessment upon the Shareholders (otherwise than as permitted
under SECTION 6.2(G)) without the express consent of each Shareholder or Trustee
involved. Subject to the foregoing, the provisions of this Declaration (whether
or not related to the rights of Shareholders) may be amended at any time, so
long as such amendment does not 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 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 Funds,
or of less than all of the Classes of any Fund having Classes, by the vote of
the holders of a majority of all the Shares entitled to vote of each Fund or
-33-
Class, as the case may be, so affected. Subject to the foregoing, any such
amendment shall be effective when an instrument stating 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.
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), 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, but such filing shall not be a prerequisite to the effectiveness
of this Declaration or any such amendment. A restated Declaration, integrating
into a single instrument all of the provisions of this Declaration which are
then in 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 10
MISCELLANEOUS
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.
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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 of Trust, or
control or affect the meaning, construction or effect hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal,
for himself and his assigns, and has thereby accepted the Trusteeship as the
Initial Trustee of Global China Growth Fund hereby granted and agreed to the
provisions hereof, all as of the day and year first above written.
/s/ X. XXX X. XXXXXX
--------------------
X. Xxx X. Xxxxxx, Initial Trustee
The undersigned Settlor hereby accepts, approves and authorizes the
foregoing Agreement and Declaration of Trust.
Dated: February 14th, 2003
/s/ XXXXXXXX X. XXXX
--------------------
Xxxxxxxx X. Xxxx, Settlor
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ACKNOWLEDGMENTS
M A S S A C H U S E T T S
Suffolk, ss.: February 14, 2003
Then personally appeared the above named X. Xxx X. Xxxxxx, to me known
and known to me to be the person named and who signed the foregoing instrument,
and acknowledged the same to be his free act and deed.
/S/ XXXXXX X. XXXXXXX
---------------------
Notary Public
[NOTARIAL SEAL] My Commission Expires
2/6/09
------------
M A S S A C H U S E T T S
Suffolk, ss.: February 14, 2003
Then personally appeared the above named Xxxxxxxx X. Xxxx, to me known
and known to me to be the person named and who signed the foregoing instrument,
and acknowledged the same to be her free act and deed.
Before me,
[NOTARIAL SEAL] /s/ XXXXXX X. XXXXXXX
---------------------
Notary Public
My Commission expires 2/6/09
------
TABLE OF CONTENTS
PAGE
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ARTICLE 1 THE TRUST.....................................................................................2
SECTION 1.1. NAME...............................................................................2
SECTION 1.2. LOCATION...........................................................................2
SECTION 1.3. NATURE OF TRUST....................................................................2
SECTION 1.4. DEFINITIONS........................................................................2
ARTICLE 2 PURPOSE OF THE TRUST..........................................................................6
ARTICLE 3 POWERS OF THE TRUSTEES........................................................................6
SECTION 3.1. POWERS IN GENERAL..................................................................6
SECTION 3.2. BORROWINGS; FINANCINGS; ISSUANCE OF SECURITIES....................................10
SECTION 3.3. DEPOSITS..........................................................................10
SECTION 3.4. ALLOCATIONS.......................................................................11
SECTION 3.5. FURTHER POWERS; LIMITATIONS.......................................................11
ARTICLE 4 TRUSTEES AND OFFICERS.......................................................................11
SECTION 4.1. NUMBER, DESIGNATION, ELECTION, TERM, ETC..........................................11
SECTION 4.2. TRUSTEES' MEETINGS; PARTICIPATION BY TELEPHONE, ETC...............................13
SECTION 4.3. COMMITTEES; DELEGATION............................................................14
SECTION 4.4. OFFICERS..........................................................................14
SECTION 4.5. COMPENSATION OF TRUSTEES AND OFFICERS.............................................14
SECTION 4.6. OWNERSHIP OF SHARES AND SECURITIES OF THE TRUST...................................14
SECTION 4.7. RIGHT OF TRUSTEES AND OFFICERS TO OWN PROPERTY AND TO ENGAGE IN BUSINESS;
AUTHORITY OF TRUSTEES TO PERMIT OTHERS TO DO LIKEWISE.............................15
SECTION 4.8. RELIANCE ON EXPERTS...............................................................15
SECTION 4.9. SURETY BONDS......................................................................15
SECTION 4.10. APPARENT AUTHORITY OF TRUSTEES AND OFFICERS.......................................15
SECTION 4.11. OTHER RELATIONSHIPS NOT PROHIBITED................................................16
SECTION 4.12. PAYMENT OF TRUST EXPENSES.........................................................16
SECTION 4.13. OWNERSHIP OF THE TRUST PROPERTY...................................................16
ARTICLE 5 DELEGATION OF MANAGERIAL RESPONSIBILITIES...................................................17
SECTION 5.1. APPOINTMENT; ACTION BY LESS THAN ALL TRUSTEES.....................................17
SECTION 5.2. CERTAIN CONTRACTS.................................................................17
ARTICLE 6 FUNDS AND SHARES............................................................................19
SECTION 6.1. DESCRIPTION OF FUNDS AND SHARES...................................................19
i
TABLE OF CONTENTS
(continued)
PAGE
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SECTION 6.2. ESTABLISHMENT AND DESIGNATION OF THE GLOBAL CHINA GROWTH FUND AND OF THE SHARES
THEREOF; GENERAL PROVISIONS FOR ALL FUNDS.........................................21
SECTION 6.3. OWNERSHIP OF SHARES...............................................................25
SECTION 6.4. INVESTMENTS IN THE TRUST..........................................................26
SECTION 6.5. NO PRE-EMPTIVE RIGHTS.............................................................26
SECTION 6.6. STATUS OF SHARES..................................................................26
ARTICLE 7 SHAREHOLDERS' VOTING POWERS AND MEETINGS.....................................................26
SECTION 7.1. VOTING POWERS.....................................................................26
SECTION 7.2. NUMBER OF VOTES AND MANNER OF VOTING; PROXIES.....................................27
SECTION 7.3. MEETINGS..........................................................................27
SECTION 7.4. RECORD DATES......................................................................28
SECTION 7.5. QUORUM AND REQUIRED VOTE..........................................................28
SECTION 7.6. ACTION BY WRITTEN CONSENT.........................................................28
SECTION 7.7. INSPECTION OF RECORDS.............................................................28
SECTION 7.8. ADDITIONAL PROVISIONS.............................................................28
ARTICLE 8 LIMITATION OF LIABILITY; INDEMNIFICATION.....................................................28
SECTION 8.1. TRUSTEES, SHAREHOLDERS, ETC. NOT PERSONALLY LIABLE; NOTICE........................28
SECTION 8.2. TRUSTEES' GOOD FAITH ACTION; EXPERT ADVICE; NO BOND OR SURETY.....................29
SECTION 8.3. INDEMNIFICATION OF SHAREHOLDERS...................................................30
SECTION 8.4. INDEMNIFICATION OF TRUSTEES, OFFICERS, ETC........................................30
SECTION 8.5. COMPROMISE PAYMENT................................................................31
SECTION 8.6. INDEMNIFICATION NOT EXCLUSIVE, ETC................................................31
SECTION 8.7. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES..................................31
ARTICLE 9 DURATION; REORGANIZATION; AMENDMENTS.........................................................31
SECTION 9.1. DURATION AND TERMINATION OF TRUST.................................................31
SECTION 9.2. REORGANIZATION....................................................................32
SECTION 9.3. AMENDMENTS; ETC...................................................................32
SECTION 9.4. FILING OF COPIES OF DECLARATION AND AMENDMENTS....................................33
ARTICLE 10 MISCELLANEOUS................................................................................33
SECTION 10.1. GOVERNING LAW.....................................................................33
SECTION 10.2. COUNTERPARTS......................................................................33
SECTION 10.3. RELIANCE BY THIRD PARTIES.........................................................33
SECTION 10.4. REFERENCES; HEADINGS..............................................................34
ii
