EXHIBIT 1
ROCHESTER PORTFOLIO SERIES
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
TABLE OF CONTENTS
Page
ARTICLE 1
Name and Definitions.................................................... 1
Section 1.1: Name ................................................. 1
Section 1.2: Definitions .......................................... 1
Section 1.3: Resident Agent ....................................... 2
Section 1.4: Principal Place of Business .......................... 2
ARTICLE 2
Purpose of the Trust.................................................... 2
Section 2.1: ...................................................... 2
Section 2.2: ...................................................... 3
Section 2.3: ...................................................... 3
Section 2.4: ...................................................... 3
Section 2.5: ...................................................... 3
Section 2.6: ...................................................... 3
Section 2.7: ...................................................... 3
ARTICLE 3
The Trustees............................................................ 4
Section 3.1: Number, Designation, Election, Term, etc. ............ 4
Section 3.2: Power of Trustees..................................... 5
Section 3.3: Certain Contracts..................................... 7
Section 3.4: Payment of Trust Expenses and
Compensation of Trustees............................. 9
Section 3.5: Assets and Liabilities of
the Trust............................................ 9
ARTICLE 4
Shares.................................................................. 10
Section 4.1: Description of Shares ................................ 10
Section 4.2: Establishment and Designation of
Classes of Shares.................................. 11
Section 4.3: Establishment and Designation of Series .............. 11
Section 4.4: Ownership of Shares .................................. 15
Section 4.5: Investments in the Trust ............................. 15
Section 4.6: No Preemptive Rights ................................. 15
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ARTICLE 5
Shareholders' Voting Powers and Meetings................................ 16
Section 5.1: Voting Powers ........................................ 16
Section 5.2: Meetings ............................................. 16
Section 5.3: Record Dates ......................................... 17
Section 5.4: Quorum and Required Vote ............................. 17
Section 5.5: Action by Written Consent ............................ 17
Section 5.6: Inspection of Record ................................. 17
Section 5.7: Additional Provisions ................................ 17
Section 5.8: Shareholder Communications ........................... 17
ARTICLE 6
Limitation of Liability, Indemnification................................ 18
Section 6.1: Trustees, Shareholders, etc.
Not Personally Liable; Notice...................... 18
Section 6.2: Trustee's Good Faith Action;
Expert Advice; No Bond or Surety................... 19
Section 6.3: Indemnification of Shareholders ...................... 19
Section 6.4: Indemnification of Trustees, Officers, etc. .......... 19
Section 6.5: Compromise Payment ................................... 20
Section 6.6: Indemnification Not Exclusive, etc. .................. 20
Section 6.7: Liability of Third Persons
Dealing with Trustees.............................. 20
ARTICLE 7
Miscellaneous........................................................... 21
Section 7.1: Duration and Termination of Trust. ................... 21
Section 7.2: Reorganization ....................................... 21
Section 7.3: Amendments ........................................... 22
Section 7.4: Filing of Copies; References; Headings ............... 22
Section 7.5: Applicable Law ....................................... 23
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AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
OF
ROCHESTER PORTFOLIO SERIES
This AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made this 26th
day of January, 1995, by and among the individuals executing this Amended and
Restated Declaration of Trust as the Trustees.
WHEREAS, the Trustees established Rochester Portfolio Series (the "Trust"), a
business trust currently with one series, Limited Term New York Municipal Fund
(the "Fund"), under the laws of the Commonwealth of Massachusetts, for the
investment and reinvestment of funds contributed thereto, under an Agreement and
Declaration of Trust (the "Declaration of Trust") dated June 13, 1991 and filed
with the Commonwealth of Massachusetts on June 14, 1991, as amended pursuant to
an Amendment dated February 6, 1992:
WHEREAS, The Trustees desire to make permitted changes to said Declaration of
Trust; and
WHEREAS, such changes have been approved by the Trustees by a unanimous consent;
NOW, THEREFORE, the Trustees declare that all money and property contributed to
the Trust hereunder shall henceforth be held and managed under this Amended and
Restated Declaration of Trust IN TRUST as herein set forth below.
ARTICLE 1
NAME AND DEFINITIONS
Section 1.1 NAME. This Trust shall be known as Rochester Portfolio Series
and the Trustees shall conduct the business of the Trust under that name or any
other name or names as they may from time to time determine.
Section 1.2 DEFINITIONS. Whenever used herein, unless otherwise required by
the context or specifically provided:
(a) The "Trust" refers to the Massachusetts business trust established by
this Amended and Restated Agreement and Declaration of Trust, as amended from
time to time, inclusive of each and every Series and Class established
hereunder;
(b) "Trustees" refers to the Trustees of the Trust and of each Series
hereunder named herein or elected in accordance with Article 3;
(c) "Shares" refers to the equal, proportionate, transferable units of
interest into which the beneficial interest of the Trust and each Series or
Class 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 consistent with
the requirements of federal and/or state securities laws;
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(d) "Series" refers to Series of Shares established and designated under or
in accordance with the provisions of Article 4;
(e) "Class" means a class of a series of shares established and designated
under or in accordance with the provisions of Article 4;
(f) "Shareholder" means a record owner of Shares;
(g) The "1940 Act" refers to the Investment Company Act of 1940 and the
Rules and Regulations thereunder, all as amended from time to time;
(h) The term "Commission" shall have the meaning given it in the 1940 Act;
(i) "Declaration of Trust" shall mean this Amended and Restated Agreement
and Declaration of Trust as amended or restated from time to time; and
(j) "By-Laws" shall mean the By-Laws of the Trust as amended from time to
time.
Section 1.3 RESIDENT AGENT. The name and address of the Trust's Resident
Agent is CT Corporation, 0 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
Section 1.4 PRINCIPAL PLACE OF BUSINESS. The Trust's principal place of
business is 000 Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000. The Trust is in
compliance with and will continue to comply with Massachusetts law.
ARTICLE 2
PURPOSE OF TRUST
The purpose or purposes for which the Trust is formed and the business or
objects to be transacted, carried on and prompted by it are as follows:
Section 2.1 To hold, invest, or reinvest its funds, and in connection
therewith to hold part or all of its funds in cash, and to purchase or otherwise
acquire, hold for investment or otherwise, sell, sell short, assign, negotiate,
transfer, exchange or otherwise dispose of or turn to account or realize upon,
securities (which term "securities" shall for the purpose of this Declaration of
Trust, without limitation of the generality thereof, be deemed to include any
stocks, shares, bonds, financial futures contracts, indexes, debentures, notes,
mortgages or other obligations, and any certificates, receipts, warrants or
other instruments representing rights to receive, purchase or subscribe for the
same, or evidencing or representing any other rights or interests therein, or in
any property or assets) created or issued by an issuer (which term "issuer"
shall for the purpose of this Declaration of Trust, without limitation of the
generality thereof be deemed to any include any persons, firms, associations,
corporations, syndicates, business trusts, partnerships, investment companies,
combinations, organizations, governments, or subdivisions thereof) and in
financial instruments (whether they are considered as securities or
commodities); and to exercise, as owner or holder of any and all acts and things
for the preservation, protection, improvement and enhancement in value of any or
all such securities or financial instruments.
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Section 2.2 To borrow money and pledge assets in connection with any of the
objects or purposes of the Trust, and to issue notes or other obligations
evidencing such borrowings, to the extent permitted by the 1940 Act and by the
Trust's fundamental investment policies under the 1940 Act.
Section 2.3 To issue and sell its Shares in such Series and Classes and
amounts and on such terms and conditions, for such purposes and for such amount
or kind of consideration (including without limitation thereto, securities) now
or hereafter permitted by the laws of the Commonwealth of Massachusetts and by
this Declaration of Trust, as the Trustees may determine.
Section 2.4 To purchase or otherwise acquire, hold, dispose of, resell,
transfer, reissue or cancel its Shares, or to classify or reclassify any
unissued Shares or any Shares previously issued and reacquired of any Series or
Class into one or more Series or Classes that may have been established and
designated from time to time, all without the vote or consent of the
Shareholders of the Trust, in any manner and to the extent now or hereafter
permitted by this Declaration of Trust.
Section 2.5 To conduct its business at one or more offices within the State
of New York and elsewhere in any part of the world, without restriction or limit
as to extent.
Section 2.6 To carry out all or any of the foregoing objects and purposes
as principal or agent, and alone or with associates or to the extent now or
hereafter permitted by the laws of Massachusetts, as a member of, or as the
owner or holder of any stock of, or shares of interest in, any issuer, and in
connection therewith or make or enter into such deeds or contracts with any
issuers and to do such acts and things and to exercise such powers, as a natural
person could lawfully make, enter into, do or exercise.
Section 2.7 To do any and all such further acts and things and to exercise
any and all such further powers as may be necessary, incidental, relative,
conducive, appropriate or desirable for the accomplishments, carrying out or
attainment of all or any of the foregoing purposes or objects.
The foregoing objects and purposes shall, except as otherwise expressly
provided, be in no way limited or restricted by reference to, or inference from,
the terms of any other clause of this or any other Article of this Declaration
of Trust, and shall each be regarded as independent and construed as powers as
well as objects and purposes, and the enumeration of specific purposes, objects
and powers shall not be construed to limit or restrict in any manner the meaning
of general terms or the general powers of the Trust now or hereafter conferred
by the laws of the Commonwealth of Massachusetts nor shall the expression of one
thing be deemed to exclude another, though it be of a similar or dissimilar
nature, not expressed; provided, however, that the Trust shall not carry on any
business, or exercise any powers, in any state, territory, district or country
except to the extent that the same may lawfully be carried on or exercised under
the laws thereof.
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ARTICLE 3
THE TRUSTEES
Section 3.1 NUMBER, DESIGNATION, ELECTION, TERM, ETC.
(a) NUMBER. The Trustees serving as such, in accordance with the provisions
of this Declaration of Trust, may increase or 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 or her term, but the number of Trustees may be decreased
in conjunction with the removal of a Trustee pursuant to subsection (d) of this
Section 3.1.
(b) ELECTION AND TERM. The Trustees shall be elected by Shareholders of the
Trust. Each Trustee, whether named above or hereafter becoming a trustee, shall
serve as a Trustee of the Trust and of each Series of the Trust hereunder during
the lifetime of this Trust and until its termination as hereinafter provided
except as such Trustee sooner dies, resigns or is removed. Subject to Section
16(a) of the 1940 Act, the Trustees may elect their own successors and may,
pursuant to Section 3.1(e) hereof appoint Trustees to fill vacancies.
(c) RESIGNATION AND RETIREMENT. Any Trustee may resign his trust or retire
as Trustee, by written instrument signed by him and delivered to the other
Trustees or to any officer of the Trust, and such resignation or retirement
shall take effect upon such a delivery or upon such later date as is specified
in such instrument and shall be effective as to the Trust and each Series of the
Trust hereunder.
(d) REMOVAL. Any Trustee may be removed with or without cause at any time:
(i) by written instrument, signed by at least two-thirds of the number of
Trustees prior to such removal, specifying the date upon which such removal
shall become effective; or (ii) by vote of Shareholders holding not less than
two-thirds of the Shares then outstanding, cast in person or by proxy at any
meeting called for the purpose; or (iii) by a written declaration signed by
Shareholders holding not less than two-thirds of the Shares then outstanding and
filed with the Trust's Custodian. Any such removal shall be effective as to the
Trust and each Series or Class hereunder.
(e) VACANCIES. Any vacancy or anticipated vacancy resulting from any
reason, including without limitation the death, resignation, retirement,
removal, or incapacity of any of the Trustees, or resulting from an increase in
the number of Trustees by the other Trustees may (but need not unless required
by the 0000 Xxx) be filled either by a majority of the remaining Trustees,
subject to the provisions of Section 16(a) of the 1940 Act, through the
appointment in writing of such other person as such remaining Trustees in their
discretion shall determine and such appointment shall be effective upon the
written acceptance of the person named therein to serve as a Trustee and
agreement by such person to be bound by the provisions of this Declaration of
Trust, except that any such appointment in anticipation of a vacancy to occur by
reason of retirement, resignation, or increase in number of Trustees to be
effective at a later date shall become effective only at or after the effective
date of said retirement, resignation, or increase in number of Trustees. As soon
as any Trustee so appointed shall have accepted such appointment and shall have
agreed in writing to be bound by this Declaration of Trust and the appointment
is effective, the Trust estate shall vest in the new Trustee, together with the
continuing Trustees, without any further act or conveyance.
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(f) Effect of Death, Resignation, etc. The death, resignation, retirement,
removal, or incapacity of the Trustees, or any one of them, shall not operate to
annul or terminate the Trust or any Series hereunder or to revoke or terminate
any existing agency or contract created or entered into pursuant to the terms of
this Declaration of Trust.
(g) No Accounting. Except to the extent required by the 1940 Act or under
circumstances which would justify his removal for cause, no person ceasing to be
a Trustee as a result of his death, resignation, retirement, removal or
incapacity (nor the estate of any such person) shall be required to make an
accounting to the Shareholders or remaining Trustees upon such cessation.
Section 3.2 Power of Trustees. Subject to the provisions of this
Declaration of Trust, the business of the Trust shall be managed by Trustees,
and they shall have all powers necessary or convenient to carry out that
responsibility and the purpose of the Trust.
Without limiting the foregoing and to the extent not inconsistent with the
1940 Act or other applicable law, the Trustees shall have power and authority
for and on behalf of the Trust and each separate Series or Class established
hereunder, and the Trustees may:
(a) adopt By-Laws not inconsistent with this Declaration of Trust
providing for the conduct of the business and affairs of the Trust and may amend
and repeal them to the extent that such By-Laws do not reserve that right to the
Shareholders;
(b) from time to time in accordance with the provisions of Section 4.3
hereof establish Series, each Series to operate as a separate and distinct
investment medium and with separately defined investment objectives and policies
and distinct investment purposes and to allocate assets, liabilities and
expenses of the Trust to a particular Series of Shares or to apportion the same
among two or more Series, provided that any liability or expense incurred by a
particular Series of Shares shall be payable solely out of the assets of that
Series;
(c) as they consider appropriate elect and remove officers and appoint and
terminate agents and consultants and hire and terminate employees, and one or
more the foregoing of whom may be a Trustee, and may provide for the
compensation of all of the foregoing;
(d) appoint from their own number, and terminate, any one or more
committees consisting of two or more Trustees, including without implied
limitation an executive committee, which may, when the Trustees are not in
session and subject to the 1940 Act, exercise some or all of the power and
authority of the Trustees as the Trustees may determine;
(e) in accordance with Section 3.3, employ one or more advisers,
administrators, depositories and custodians and may authorize any depository or
custodian to employ subcustodians or agents and to deposit all or any part of
such assets in a system or systems for the central handling of securities and
debt instruments;
(f) retain transfer, dividend, accounting or shareholder servicing agents
or any of the foregoing, provide for the distribution of Shares by the Trust
through one or more distributors, principal underwriters or otherwise;
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(g) set record dates or times for the determination of Shareholders or
various of them with respect to various matters;
(h) compensate or provide for the compensation of the Trustees, officers,
advisers, administrators, custodians, other agents, consultants and employees of
the Trust or the Trustees on such terms as they deem appropriate;
(i) in general, delegate to any officer of the Trust, to any committee of
the Trustees and to any employee, adviser, administrator, distributor,
depository, custodian, transfer and dividend disbursing agent, or any other
agent or consultant of the Trust such authority, powers, functions and duties as
they consider desirable or appropriate for the conduct of the business and
affairs of the Trust, including without implied limitation, the power and
authority to act in the name of the Trust and of the Trustees, to sign documents
and to act as an attorney-in-fact for the Trustees.
(j) invest and reinvest cash or other property, and to hold cash or other
property uninvested without in any event being bound or limited by any present
or future law or custom in regard to investments by Trustees;
(k) sell, exchange, lend, pledge, mortgage, hypothecate, write options
on and lease any or all of the assets of the Trust;
(l) vote or give assent, or exercise any rights of ownership, with respect
to stock or other securities, debt instruments or property; and to execute and
deliver proxies or powers of attorney to such person or persons as Trustees
shall deem proper, granting to such person or persons such power and discretion
with relation to securities, debt instruments or property as the Trustees shall
deem proper;
(m) exercise powers and rights of subscription or otherwise which in any
manner arise out of ownership of securities or debt instruments;
(n) hold any security, debt instrument or 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 any Series or Class or in the name of
a custodian, subcustodian or other depository or a nominee or nominees or
otherwise;
(o) consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer, any security or debt
instrument of which is or was held in the Trust; to consent to any contract,
lease, mortgage, purchase or sale of property by such corporation or issuer, and
to pay calls or subscriptions with respect to any security or debt instrument
held in the Trust;
(p) join with other holders of any securities or debt instruments in acting
through a committee, depository, voting trustee or otherwise, and in that
connection to deposit any security or debt instrument with, or transfer any
security or debt instrument to, any such committee, depository or trustee, and
to delegate to them such power and authority with relation to any security or
debt instrument (whether or not so deposited or transferred) as the Trustees
shall deem proper, and to agree to pay, and to pay, such portion of the expenses
and compensation of such committee, depository or trustee as the Trustees shall
deem proper;
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(q) compromise, arbitrate or otherwise adjust claims in favor of or against
the Trust or any Series or Class or any matter in controversy, including, but
not limited to, claims for taxes;
(r) enter into joint ventures, general or limited partnerships and any
other combinations or associations;
(s) borrow funds and to mortgage and pledge the assets of the Trust or any
part thereof to secure obligations arising in connection with such borrowing;
(t) 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 or all of such obligations;
(u) purchase and pay for entirely out of Trust property such insurance as
they may deem necessary or appropriate for the conduct of the business of the
Trust, including, without limitation, insurance policies insuring the assets of
the Trust and payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, consultants, investment advisers, managers,
administrators, distributors, principal underwriter, or independent contractors,
or any thereof (or any person connected therewith), of the Trust individually
against all claims and liabilities of every nature arising by reason of holding,
being or having held any such office or position, or by reason of any action
alleged to have been taken or omitted by any such person in any such capacity,
including any action taken or omitted that may be determined to constitute
negligence, whether or not the Trust would have the power to indemnify such
person against such liability; and
Except as otherwise provided by the 1940 Act or other applicable law, this
Declaration of Trust or the By-Laws, any action to be taken by the Trustees on
behalf of the Trust or any Series or Class may be taken by a majority of the
Trustees present at a meeting of Trustees (a quorum, consisting of at least a
majority of the Trustees then in office, being present), within and without
Massachusetts, including any meeting held by means of conference telephone or
other communications equipment by means of which all persons participating in
the meeting can hear such other at the same time and participation by such means
shall constitute presence in person at a meeting, or by the unanimous written
consent of the Trustees then in office.
Section 3.3 Certain Contracts. Subject to compliance with the provisions of
the 1940 Act, but notwithstanding any limitations of present and future law or
custom in regard to delegation of powers by trustees generally, the Trustees
may, at any time and from time to time and without limiting the generality of
their powers and authority otherwise set forth herein, enter into one or more
contracts with any one or more corporations, trusts, associations, partnerships,
limited partnerships, other type 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 or the
Trust and/or any Sub-Trust, and/or the Trustees, and to provide for the
performance and assumption of such other services, duties and responsibilities
in addition to those set forth below as the Trustees may determine appropriate:
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(a) Advisory. Subject to the general supervision of the Trustees and in
conformity with the stated policy of the Trustees with respect to the
investments of the Trust or of the assets belonging to any Series of the Trust
(as that phrase is defined in subsection (a) of Section 4.3), to manage such
investments and assets, make investment decisions with respect thereto, and to
place purchase and sale orders for portfolio transactions relating to such
investments and assets;
(b) Administration. Subject to the general supervision of the Trustees and
in conformity with any policies of the Trustees with respect to the operations
of the Trust and each Series or Class, to supervise all or any part of the
operations of the Trust and each Series or Class, and to provide all or any part
of the administrative and clerical personnel, office space and office equipment
and service appropriate for the efficient administration and operations of the
Trust and each Series or Class;
(c) Distribution. To distribute the Shares of the Trust and each Series or
Class, to the principal underwriter of such Shares, and/or to act as agent of
the Trust and each Series or Class in the sale of Shares and the acceptance or
rejection of orders for the purchase of Shares;
(d) Custodian and Depository. To act as depository for and to maintain
custody of the property of the Trust and each Series or Class and accounting
records in connection therewith;
(e) Transfer and Dividend Disbursing Agency. To maintain records of the
ownership of outstanding Shares, the issuance and redemption and the transfer
thereof, and to disburse any dividends declared by the Trustees and in
accordance with the policies of the Trustees and/or the instructions of any
particular Shareholder to reinvest any such dividends;
(f) Shareholder Servicing. To provide service with respect to the
relationship of the Trust and its Shareholders, records with respect to
Shareholders and their Shares, and similar matters; and
(g) Accounting. To handle all or any part of the accounting
responsibilities, whether with respect to the Trust's properties, Shareholders
or otherwise.
The same person may be the Contracting Party for some or all of the services,
duties and responsibilities to, for and of the Trust and/or the Trustees, and
the contracts with respect thereto may contain such terms interpretive of or in
addition to the delineation of the services, duties and responsibilities
provided for, including provisions that are not inconsistent with the 1940 Act
relating to the standard of duty of and the rights to indemnification of the
Contracting Party and others, as the Trustees may determine. Nothing herein
shall preclude, prevent or limit the Trust or a Contracting Party from entering
into sub-contractual arrangements relative to any of the matters referred to in
Sections 3.3(a) through (g) hereof.
The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager, advisor,
principal underwriter or distributor or agent of or for any Contracting Party,
or of or for any parent or affiliate of any Contracting Party or that the
Contracting Party or any parent or affiliate thereof is a Shareholder or has an
interest in the Trust or any Sub-Trust, or that
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(ii) any Contracting Party may have a contract providing for the rendering
of any similar services to one or more other corporations, trusts, associations,
partnerships, limited partnerships or other organizations, or have other
business or interests, shall not affect the validity of any contract for the
performance and assumption of services, duties and responsibilities to, for or
of the Trust or any Series and/or the Trustees or disqualify any Shareholder,
Trustee or officer of the Trust from voting upon or executing the same or create
any liability or accountability to the Trust, any Series or its Shareholders,
provided that in the case of any relationship or interest referred to in the
preceding clause (i) on the part of any Trustee or officer of the Trust either
(A) the material facts as known 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, or (B) the material facts as to such relationship or interest and as
to the contract have been disclosed to or are known by the Shareholders, and (C)
the specific contract involved is fair to the Trust as of the time it is
authorized, approved or ratified by the Trustees or by the Shareholders.
Section 3.4 Payment of Trust Expenses and Compensation of Trustees. The
Trustees are authorized to pay or to cause to be paid out of the principal or
income of the Trust or any Series or Class, or partly out of principal and
partly out of income, and to charge or allocate the same to, between or among
such one or more of the Series or Class that may be established and designated
pursuant to Article 4, as the Trustees deem fair, all expenses, fees, charges,
taxes and liabilities incurred or arising in connection with the Trust or any
Series or Class, or in connection with the management thereof, including, but
not limited to, the Trustees' compensation and such expenses and charges for the
services of the Trust's officers, employees, investment adviser, administrator,
distributor, principal underwriter, auditor, counsel, depository, custodian,
transfer agent, dividend disbursing agent, accounting agent, Shareholder
servicing agent, and such other agents, consultants, and independent contractors
and such other expenses and charges as the Trustees may deem necessary or proper
to incur. Without limiting the generality of any other provision hereof, the
Trustees shall be entitled to reasonable compensation from the Trust for their
services as Trustees and may fix the amount of such compensation.
Section 3.5 Assets and Liabilities of the Trust. The assets of the Trust
shall be held separate and apart from any assets now or hereafter held in any
capacity other than as Trustee hereunder by the Trustees or any successor
Trustees. All of the assets of the Trust shall at all times be considered as
vested in the Trustees. No Shareholder shall be deemed to have a severable
ownership in any individual asset of the Trust or any right of partition or
possession thereof, but each Shareholder of a Series or Class of Shares of the
Trust shall have a proportionate undivided beneficial interest in the assets
belonging to the Series of Class of Shares of the Trust held by the Shareholders
of such Series or Class of Shares in the Trust.
All consideration received by the Trust for the issue or sale of Shares of
a particular Series or Class, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall be
referred to as "assets belonging to" that Series or Class and shall be held by
the Trustees in Trust for the benefit of the Shareholders of that Series or
Class. The assets belonging to each particular Series or Class shall be charged
with the liabilities of that Series or Class and all expenses, costs, charges
and reserves attributable to that Series or Class. In addition, any assets,
income,
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earnings, profits, and proceeds thereof, funds, or payments or any general
liabilities, expenses, costs, charges or reserves of the Trust which are not
readily identifiable as belonging to or chargeable to any particular Series
shall be allocated by the Trustees between and among one or more of the Series
in such a manner as they, in their sole discretion, deem fair and equitable.
Each such allocation shall be conclusive and binding upon the Shareholders of
all Series for all purposes, and shall be referred to as assets belonging to
that Series. Any creditor of any Series may look only to the assets of that
Series to satisfy such creditor's debt. Certain expenses also may be allocated
to a particular Class of Shares. All such Class expenses will be charged
directly to the net assets of the particular Class and thus will be borne on a
pro rata basis by the outstanding Shares of the Class.
ARTICLE 4
SHARES
Section 4.1 Description of Shares. The Shares of the Trust shall be issued
in one or more separate and distinct Series and/or classes as the Trustees may,
without shareholder approval, authorize. Each Series shall be preferred over all
other Series in respect of the assets allocated to that Portfolio. The
beneficial interest of each Series shall at all times be divided into an
unlimited number of transferable Shares, each of which shall represent an equal
proportionate interest in the Series with each other Shares of the same Series,
none having priority or preference over another. Each such share shall be fully
paid and nonassessable. Each Series shall be represented by one or more classes
of Shares, with each class possessing such rights (including, notwithstanding
any contrary provision herein, voting rights) as the Trustees, without
shareholder approval, authorize. The number of shares authorized shall be
unlimited, and the Shares so authorized may be represented in part by fractional
shares. The Trustees may from time to time and without shareholder approval
divide or combine the Shares of any Series or class into a greater or lesser
number without thereby changing the proportionate beneficial interest in the
Series.
(a) The number of authorized Shares and the number of Shares of each Series
and each Class of a Series that may be issued is unlimited, and the Trustees may
issue Shares of any Series or Class of any Series for such consideration and on
such terms as they may determine (or for no consideration if pursuant to a Share
dividend or split-up), all without action or approval of the Shareholders. All
Shares when so issued on the terms determined by the Trustees shall be fully
paid and non-assessable (but may be subject to mandatory redemption by the Trust
as provided in subsection (g) of Section 4.3). The Trustees may classify or
reclassify any unissued Shares or any Shares previously issued and reacquired of
any Series or into one or more Series or Classes of Series that may be
established and designated from time to time. The Trustees may hold as treasury
Shares, reissue for such consideration and on such terms as they many determine,
or cancel, at their discretion from time to time, any Shares of any Series
reacquired by the Trust.
The Trustees may from time to time close the transfer books or establish
record dates and times for the purposes of determining the holders of Shares
entitled to be treated as such, to the extent provided or referred to in Section
5.3.
(b) The establishment and designation of any Series or any Class of any
Series in addition to those established and designated in Section 4.2 and 4.3
shall be effective upon the execution by a majority of
10
the Trustees of an instrument setting forth such establishment and designation
and the relative rights and preferences of the Shares of such Series or such
Class of such Series, or as otherwise proved in such instrument. At any time
that there are no Shares outstanding of any particular Series previously
established and designated the Trustees may by an instrument executed by a
majority of their number abolish that Series and the establishment and
designation thereof. Each instrument referred to in this paragraph shall have
the status of an amendment to this Declaration of Trust.
(c) Any Trustee, officer of other agent of the Trust, and any organization
in which any such person is interested may acquire, own, hold and dispose of
Shares of any Series of the Trust to the same extent as if such person were not
a Trustee, officer or other agent of the Trust; and the Trust may issue and sell
or cause to be issued and sold and may purchase Shares of any Series from any
such person or any such organization subject only to the general limitations,
restrictions or other provisions applicable to the sale or purchase of Shares of
such Series generally.
Section 4.2 Establishment and Designation of Classes of Shares. The
Trustees shall have the authority without shareholder approval from time to time
to divide the Shares of any Series into two or more Classes as they deem
necessary or desirable, and to establish and designate such Classes. In such
event, each Class of a Series shall represent interests in the designated Series
of the Trust and have such voting, dividend, liquidation and other rights as may
be established and designated by the Trustees. Expenses related directly or
indirectly to the Shares of a Class of a Series may be borne solely by such
Class (as shall be determined by the Trustees) and, as provided in Section 4.3,
a Class of a Series may have exclusive voting rights with respect to matters
relating solely to such Class. The bearing of expenses solely by a Class of
Shares or a Series shall be appropriately reflected (in the manner determined by
the Trustees) in the net asset value, dividend, and liquidation rights of the
Shares of such Class of a Series. The division of the Shares of a Series into
Classes and the terms and conditions pursuant to which the Shares of the Classes
of a Series will be issued must be made in compliance with 1940 Act and other
federal securities laws.
Section 4.3 Establishment and Designation of Series. Without limiting the
authority of the Trustees set forth in Section 4.1 to establish and designate
any further Series, the Trustees hereby establish and designate one Series:
Limited Term New York Municipal Fund and any Shares of any further Series that
may from time to time be established and designated by the Trustees shall
(unless the Trustees otherwise determine with respect to some further Series at
the time of establishing and designating the same) have the following relative
rights and preferences:
(a) Assets Belonging to Series. All consideration received by the Trust for
the issue or sale of Shares of a particular Series, together with all assets in
which such consideration is invested or reinvested, all income, earnings,
profits, and proceeds thereof, 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 the
Series and shall irrevocably belong to that Series for all purposes, and shall
be so recorded upon the books of account of the Trust. Such consideration,
assets, income, earnings, profits, and proceeds thereof, including any proceeds
derived from the sale, exchange or liquidation of such assets, and any funds or
payments derived from any reinvestment of such proceeds, in whatever
11
form the same may be, together with any General Items allocated to that Series
as provided in the following sentence, are herein referred to as "assets
belonging to" that Series. In the event that there are any assets, income,
earnings, profits, and proceeds thereof, funds, or payments which are not
readily identifiable as belonging to any particular Series (collectively
"General Items"), the Trustee shall allocate such General Items to and among any
one or more of the Series established and designated from time to time in such
manner and on such basis as they, in their sole discretion, deem fair and
equitable; and any General Items so allocated to a particular Series. Each such
allocation by the Trustees shall be conclusive and binding upon the Shareholders
of all Series for all purposes.
(b) (1) Liabilities Belonging to Series. The assets belonging to each
particular Series shall be charged with the liabilities in respect of that
Series and all expenses, costs, charges and reserves attributable to that
Series, and any general liabilities, expenses, costs, charges or reserves of the
Trust which are not readily identifiable as belonging to any particular Series
shall be allocated and charged by the Trustees to and among any one or more of
the Series established and designated from time to time in such manner and on
such basis as the Trustees in their sole discretion deem fair and equitable. The
liabilities, expenses, costs, charges and reserves allocated and so charged to a
Series are herein referred to as "liabilities belonging to" that Series. Each
allocation of liabilities, expenses, costs, charges and reserves by the Trustees
shall be conclusive and binding upon the Shareholders of all Series for all
purposes. Any creditor of any Series may look only to the assets of that Series
to satisfy such creditor's debt.
(2) Liabilities Belonging to a Class. If a Series is divided into more
than one Class, the liabilities, expenses, costs, charges and reserves
attributable to a Class may be charged and allocated to the Class to which such
liabilities, expenses, costs, charges or reserves are attributable. Any general
liabilities, expenses, costs, charges or reserves belonging to the Series which
are not identifiable as belonging to any particular Class shall be allocated and
charged by the Trustees to and among any one or more of the Classes established
and designated from time to time in such manner and on such a basis as the
Trustees in their sole discretion deem fair and equitable. The liabilities,
expenses, costs, charges and reserves allocated and so charged to each Class are
herein referred to as "Liabilities belonging to" that Class. Each allocation of
liabilities, expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the holders of all Classes for all purposes.
(3) Income and Capital Items. The Trustees shall have full discretion,
to the extent not inconsistent with the 1940 Act, to determine which items shall
be treated as income and which items as capital; and each such determination and
allocation shall be conclusive and binding upon the Shareholders.
(c) Dividends. Dividends and distributions on Shares of a particular Series
or Class may be paid with such frequency as the Trustees may determine, which
may be daily or otherwise pursuant to a standing resolution or resolutions
adopted only once or with such frequency as the Trustees may determine, to the
holders of Shares of that Series or Class, from such of the income and capital
gains, accrued or realized, from the assets belonging to that Series, as the
Trustees may determine, after providing for actual and accrued liabilities
belonging to such Series or Class. All dividends and distributions on Shares of
a particular Series or Class shall be distributed pro rata to the holders of
Shares of such Series or Class in proportion to the number of Shares of such
Series or Class held by such holders at the date and time of record established
for the payment of such dividends or distributions, except that in connection
with any dividend or distribution program or procedure the Trustees may
determine that no dividend or distribution shall be payable on Shares as to
which the Shareholder's
12
purchase order and/or payment have not been received by the time or times
established by the Trustees under such program or procedure. Such dividends and
distributions may be made in cash or Shares of that Series or Class or a
combination thereof as determined by the Trustees or pursuant to any program
that the Trustees may have in effect at the time for the election by each
Shareholder of the mode of the making of such dividend or distribution to that
Shareholder. Any such dividend or distribution paid in Shares will be paid at
the net asset value thereof as determined in accordance with subsection (h) of
Section 4.3.
(d) Liquidation. In the event of the liquidation or dissolution of the
Trust, the Shareholders of all Classes of each Series that has been established
and designated shall be entitled to receive, as a Series or Class, when and as
declared by the Trustees, the excess of the assets belonging to such Series or
Class over the liabilities belonging to that Series or Class. The assets so
distributable to the Shareholders of any particular Series or Class shall be
distributed among such Shareholders in proportion to the number of Shares of
such Class of that Series held by them and recorded on the books of the Trust.
The liquidation of any particular Series or Class may be authorized by vote of a
majority of the Trustees then in office subject to the approval of a majority of
the outstanding voting Shares of that Series or Class, as defined in the 1940
Act.
(e) Voting. On each matter submitted to a vote of the Shareholders, each
holder of a Share of each Series shall be entitled to one vote for each whole
Share and for a proportionate fractional vote for each fractional Share standing
in his name on the books of the Trust and all shares of each Series shall vote
as a separate class, except as to voting for Trustees and as otherwise required
by the 1940 Act. As to any matter which does not affect the interest of a
particular Series , only the holders of Shares of one or more of the affected
Series shall be entitled to vote. If the shares of a Series shall be divided
into Classes as provided in Section 4.2, the shares of each Class shall have
identical voting rights except that the Trustees, in their discretion, may
provide a Class of a Series with exclusive voting rights with respect to matters
which relate solely to such Class. If the Shares of any Series shall be divided
into Classes with a Class having exclusive voting rights with respect to certain
matters, the quorum and voting requirements described below with respect to
action to be taken by the shareholders of the Class of such Series on such
matters shall be applicable only to the Shares of such Class. Any fractional
Share shall carry proportionately all the rights of a whole Share, including the
right to vote and the right to receive dividends.
(f) Redemption by Shareholders. In case any Shareholder of record of a
particular Series desires to dispose of Shares, that shareholder may deposit at
the office of the transfer agent or other authorized agent of the Trust a
written request or such other form of request as the Trustees may from time to
time authorize, requesting that the Trust purchase said Shares in accordance
with this Section 4.3; and the Shareholder so requesting shall be entitled to
require the Trust to purchase, and the Trust or the principal underwriter of the
Trust shall purchase said Series, but only at the Net Asset Value thereof (as
described in Section 4.3(h) hereof). The Series shall make payment for any such
Shares to be redeemed, as aforesaid, in cash to the extent required by Federal
law, and securities from such Series' assets, and payment for such Shares shall
be made by the Series or the principal underwriter to the Shareholder of record
within seven (7) days after the date upon which the request is effective,
provided, however, that if Shares being redeemed have been purchased by check,
the Series may postpone payment until the Trust has assurance that good payment
has been collected for the purchase of the Shares. The Trust may require
Shareholders to pay a sales charge to the Trust, the underwriter or any other
person designated
13
by the Trustees upon redemption or repurchase of Shares of any Portfolio in such
amount as shall be determined from time to time by the Trustees. The amount of
such sales charge may but need not vary depending on various factors, including
without limitation the holding period of the redeemed or repurchased Shares. The
Trustees may also charge a redemption or repurchase fee in such amount as may be
determined from time to time by the Trustees.
(g) Redemption by Trust. Each Share of each Series or Class that has been
established and designated is subject to redemption by the Trust at the
redemption price which would be applicable if such Share was then being redeemed
by the Shareholder pursuant to subsection (f) of this Section 4.3: (a) at any
time, if the Trustees determine in their sole discretion that failure to so
redeem may have materially adverse consequences to the holders of the Shares of
the Trust or any Series or Class thereof, or (b) upon such other conditions as
may from time to time be determined by the Trustees and set forth in the then
current Prospectus of the Trust with respect to maintenance of Shareholder
accounts of a minimum amount. Upon such redemption of the holders of the Shares
so redeemed shall have no further right with respect thereto other than to
receive payment of such redemption price.
(h) Net Asset Value. The net asset value per Share of any Series or Class
shall be the quotient obtained by dividing the value of the net assets of that
Series or Class (being the value of the assets belonging to that Series or Class
less the liabilities belonging to that Series or Class) by the total number of
Shares of that Series or Class outstanding, all determined in accordance with
the methods and procedures, including without limitation those with respect to
rounding, established by the Trustees from time to time.
The Trustees may determine to maintain the net asset value per Share of any
Series or Class at a designated constant dollar amount and in connection
therewith may adopt procedures not inconsistent with the 1940 Act for the
continuing declarations of income attributable to that Series or Class as
dividends payable in additional Shares of that Series or Class at the designated
constant dollar amount and for the handling of any losses attributable to that
Series or Class. Such procedures may provide that in the event of any loss each
Shareholder shall be deemed to have contributed to the capital of the Trust
attributable to that Series or Class his pro rata portion of the total number of
Shares required to be cancelled in order to permit the net asset value per Share
of that Series or Class to be maintained, after reflecting such loss, at the
designated constant dollar amount. Each shareholder of the Trust shall be deemed
to have agreed, by his investment in any Series or Class with respect to which
the Trustees shall have adopted any such procedure, to make the contribution
referred to in the preceding sentence in the event of any such loss.
(i) Transfer. All Shares of each particular Series shall be transferable,
but transfers of Shares of a particular Series and Class will be recorded on the
Share transfer records of the Trust applicable to such Class of that Series only
at such times as Shareholders shall have the right to require the Trust to
redeem Shares of such Class of that Series and at such other times as may be
permitted by the Trustees.
(j) Equality. All Shares of all Series shall represent an equal
proportionate interest in the assets belonging to that Series (subject to the
liabilities belonging to such Class of that Series), and each Share of any
particular Series shall be equal to each other Share of that Series; but the
provisions of this sentence shall not restrict any distinctions permissible
under subsection (c) of this Section 4.3 that may exist with respect to
dividends and distributions on Shares of the different Classes of a Series. The
Trustees may from time to time without shareholder approval divide or combine
the Shares of that Class
14
or Series into a greater or lesser number of Shares of that Class or Series
without thereby changing the proportionate beneficial interest in the assets
belonging to that Class or Series or in any way affecting the rights of Shares
of any other Class or Series.
(k) Fractions. Any fractional Share of any Class and Series, if any such
fractional Share is outstanding, shall carry proportionately all the rights and
obligations of a whole Share of that Class and Series, including rights and
obligations with respect to voting, receipt of dividends and distributions,
redemption of Shares, and liquidation of the Trust.
(l) Conversion Rights. Subject to compliance with the requirements of the
1940 Act, the Trustees shall have the authority to provide that (i) holders of
Shares of any Series shall have the right to exchange said Shares into Shares of
one or more other Series of Shares, (ii) holders of shares of any Class shall
have the right to exchange said Shares into Shares of one or more other Classes
of the same or a different Series, and/or (iii) the Trust shall have the right
to carry out the aforesaid exchanges, in each case in accordance with such
requirements and procedures as may be established by the Trustees.
Section 4.4 Ownership of Shares. The ownership of Shares shall be recorded
on the books of the Trust or of a transfer or similar agent for the Trust, which
books shall be maintained separately for the shares of each Class and Series
that has been established and designated. No certificate certifying the
ownership of Shares need be issued except as the Trustees may otherwise
determine from time to time. The Trustees may make such rules as they consider
appropriate for the issuance of 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 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 Class and Series held from time to time by each such Shareholder.
Section 4.5 Investments in the Trust. The Trustees may accept investments
in 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 4.6 No Preemptive Rights. Shareholders shall have no preemptive or
other right to subscribe to any additional Shares or other securities issued by
the Trust.
Section 4.7 Status of Shares and Limitation of Personal Liability. Shares
shall be deemed to be personal property giving only the rights provided in this
instrument. Every Shareholder by virtue of having become a Shareholder shall be
held to have expressly assented and agreed to the terms hereof and to have
become a party hereto. The death of a Shareholder during the continuance of the
Trust shall not operate to terminate the Trust or any Series or Class thereof
nor entitle the representative of any decreased Shareholder to an accounting or
to take any action in court or elsewhere against the Trust or the Trustees, but
only to the rights of said decedent under this Trust. Ownership of Shares shall
not entitle the Shareholder to any title in or to the whole or any part of the
Trust property or right to call for a partition or division of the same or for
an accounting, nor shall the ownership of Shares constitute the Shareholders
partners. Neither the Trust nor the Trustees, nor any officer, employee or agent
of the
15
Trust shall have any power to bind personally any Shareholder, nor except as
specifically provided herein to call upon any Shareholder for the payment of any
sum of money or assessment whatsoever other than such as the Shareholder may at
any time personally agree to pay.
ARTICLE 5
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 5.1 Voting Powers. The Shareholders shall have power to vote only
(i) for the election or removal of Trustees as provided in Section 3.1, (ii)
with respect to any contract with a Contracting Party as provided in Section 3.3
as to which Shareholder approval is required by the 1940 Act, (iii) with respect
to any termination or reorganization of the Trust or any Series to the extent
and as provided in Sections 7.1 and 7.2, (iv) with respect to any amendment of
this Declaration of Trust, to the extent and as provided in Section 7.3, (v) to
the same extent as the stockholders of a Massachusetts business corporation as
to whether or not a court action, proceeding or claim would or should not be
brought or maintained derivatively as a class action on behalf of the Trust or
any Series or Class thereof or the Shareholders (provided, however, that a
shareholder of a particular Series or Class shall not be entitled to initiate a
derivative or class action on behalf of any other Series or Class (or
shareholder of any other Series or Class) of the Trust) and (vi) with respect to
such additional matters relating to the Trust as may be required by the 1940
Act, this Declaration of Trust, the By-Laws or any registration of the Trust
with the Commission (or successor agency) or any state, or as the Trustees may
consider necessary or desirable. There shall be no cumulative voting on the
election of Trustees. Shares may be voted in person or by proxy. A proxy with
respect to shares held in the name of two or more persons shall be valued if
executed by any one of them unless at or prior to exercise of the proxy the
Trust receives specific written notice to the contrary from any one of them. A
proxy purporting to be executed by or on behalf of a Shareholder shall be deemed
valid unless challenged at or prior to its exercise and the burden of proving
invalidity shall rest on the challenger. Until shares are issued, the Trustees
may exercise all rights of Shareholders and may take any action required by law,
this Declaration of Trust or the By-Laws to be taken by the Shareholders.
Section 5.2 Meetings. No annual or regular meeting of Shareholders is
required. Special meetings of Shareholders may be called by the Trustees from
time to time for the purpose of taking action upon any matter requiring the vote
or authority of the Shareholders as herein provided or upon any other matter
deemed by the Trustees to be necessary or desirable. Written notice of any
meeting of Shareholders shall be given or caused to be given by the Trustees by
mailing such notice at least seven days before such meeting, postage prepaid,
stating the time, place and purpose of the meeting, to each Shareholder at the
Shareholder's address as it appears on the records of the Trust. The Trustees
shall promptly call and give notice of a meeting of Shareholders for the purpose
of voting upon removal of any Trustee of the Trust when requested to do so in
writing by Shareholders holding not less than 10% of the Shares then
outstanding. If the Trustees shall fail to call or give notice of any meeting of
Shareholders for a period of 30 days after written application by Shareholders
holding at least 10% of the Shares then outstanding requesting a meeting be
called for a purpose requiring action by the Shareholders as provided herein or
in the By-Laws, then Shareholders holding at least 10% of the Shares then
outstanding may call and give notice of such meeting and thereupon the meeting
shall be held in the manner provided for herein in case of call thereof by the
Trustee.
16
Section 5.3 Record Dates. For the purpose of determining the Shareholders
who are entitled to vote or act at any meeting or any adjournment thereof, or
who are entitled to participate in any dividend or distribution, or for the
purpose of any other action, the Trustees may from time to time close the
transfer books for such period, not exceeding 30 days (except at or in
connection with the termination of the Trust), as the Trustees may determine; or
without closing the transfer books the Trustees may fix a date and time not more
than 60 days prior to the date of any meeting of Shareholders or other action as
the date and time of record for the determination of Shareholders entitled to
vote at such meeting or any adjournment thereof or to be treated as Shareholders
of record for purposes of such other action, and any Shareholder who was a
Shareholder at the date and time so fixed shall be entitled to vote at such
meeting or any adjournment thereof or to be treated as a Shareholder of record
for purposes of such other action, even though he has since that date and time
disposed of his Shares, and no Shareholder becoming such after that date and
time shall be so entitled to vote at such meeting or any adjournment thereof or
to be treated as a Shareholder of record for purposes of such other action.
Section 5.4 Quorum and Required Vote. A majority of the Shares, or of the
Shares of any Series or Class of any Series with respect to matters as to which
only shareholders of said Series or Class of Series, respectively, entitled to
vote shall be a quorum for the transaction of business at a Shareholders'
meeting, but any lesser number shall be sufficient for adjournments. Any
adjourned session or sessions may be held, within a reasonable time after the
date set for the original meeting without the necessity of further notice. A
majority of the Shares voted, at a meeting of which a quorum is present shall
decide any questions and a plurality shall elect a Trustee, except when a
different vote is required or permitted by any provision of the 1940 Act or
other applicable law or by this Declaration of Trust or the By-Laws.
Section 5.5 Action by Written Consent. Subject to the provisions of the
1940 Act and other applicable law, any action taken by Shareholders may be taken
without a meeting if the holders of all outstanding shares entitled to vote on
the matter consent to the action in writing and such written consents are filed
with the records of the meetings of Shareholders. Such consent shall be treated
for all purposes as a vote taken at a meeting of Shareholders.
Section 5.6 Inspection of Record. 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 5.7 Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
17
Section 5.8 Shareholder Communications. Whenever ten or more Shareholders
of record have been such for at least six months preceding the date of
application, and who hold in the aggregate either Shares having a net asset
value of at least $25,000 or at least 1% of the outstanding Shares, whichever is
less, shall apply to the Trustees in writing, stating that they wish to
communicate with other Shareholders with a view to obtaining signatures to a
request for a Shareholder meeting and accompanied by a form of communication and
request which they wish to transmit, the Trustees shall within five business
days after receipt of such application either (1) afford to such applicants
access to a list of the names and addresses of all Shareholders as recorded on
the books of the Trust or Series, as applicable; or (2) inform such applicants
as to the approximate number of Shareholders of record, and the approximate cost
of mailing to them the proposed communication and form of request.
If the Trustees elect to follow the course specified in paragraph (2) above
the Trustees, upon the written request of such applicants, accompanied by a
tender of the material to be mailed and of the reasonable expenses of mailing,
shall, with reasonable promptness, mail such material to all Shareholders of
record of their addresses as recorded on the books, unless within five business
days after such tender the Trustees shall mail to such applicants and file with
the Commission, together with a copy of the material to be mailed, a written
statement signed by at least a majority of the Trustees to the effect that in
their opinion either such material contains untrue statements of fact or omits
to state facts necessary to make the statements contained therein not
misleading, or would be in violation of applicable law, and specifying the basis
of such opinion. The Trustees shall thereafter comply with the requirements of
the 1940 Act.
ARTICLE 6
LIMITATION OF LIABILITY, INDEMNIFICATION
Section 6.1 Trustees, Shareholders, etc. Not Personally Liable; Notice. All
persons extending credit to, contracting with or having any claim against the
Trust shall look only to the assets of the Series or Class with which such
person dealt for payment under such credit, contract or claim; and neither the
Shareholders of any Series or Class nor the Trustees, nor any of the Trust's
officers, employees or agents, whether past, present or future, nor any other
Series shall be personally liable therefor. Every note, bond, contract,
instrument, certificate or undertaking and every other act or thing whatsoever
executed or done by or on behalf of the Trust, and Series or Class or the
Trustees or any of them in connection with the Trust shall be conclusively
deemed to have been executed or done only by or for the Trust (or the Series or
Class) or the Trustees and not personally. Nothing in this Declaration of Trust
shall protect any Trustee or officer against any liability to the Trust or the
Shareholders to which such Trustee or officer would otherwise be subject by
reason of wilful misfeasance, bad faith, gross negligence, or reckless disregard
of the duties involved in the conduct of the office of Trustee or of such
officer.
Every note, bond, contract, instrument, certificate or undertaking made or
issued by the Trustees or by any officers or officer shall give notice that this
Declaration of Trust is on file with the Secretary of the Commonwealth of
Massachusetts and shall recite 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 Series or Class in question,
as
18
the case may be, but the omission thereof shall not operate to bind any Trustees
or Trustee or officers or officer of Shareholders or Shareholder individually.
Section 6.2 Trustee's Good Faith Action; Expert Advice; No Bond or Surety.
The exercise by the Trustees of their powers and discretion hereunder shall be
binding upon everyone interested. A Trustee shall be liable for his own wilful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee, and for nothing else, and
shall not be liable for errors in judgment or mistakes of fact or law. Subject
to the foregoing, (a) the Trustees shall not be responsible or liable in any
event for any neglect or wrongdoing of any officer, agent, employee, consultant,
adviser, administrator, distributor or principal underwriter, custodian or
transfer, dividend disbursing, Shareholder servicing or accounting agent of the
Trust, nor shall any Trustee be responsible for the act or omission of any other
Trustee; (b) the Trustees may take advice of counsel or other experts with
respect to the meaning and operation of this Declaration of Trust and their
duties as Trustees, and shall be under no liability for any act or omission in
accordance with such advice or for failing to follow such advice; and (c) in
discharging their duties, the Trustees, when acting in good faith, shall be
entitled to rely upon the books of account of the Trust and upon written reports
made to the Trustees by any officer appointed by them, any independent public
accountant, and (with respect to the subject matter of the contract involved)
any officer, partner or responsible employee of a Contracting Party appointed by
the Trustees pursuant to Section 3.3. The Trustees as such shall not be required
to give any bond or surety or any other security for the performance of their
duties.
Section 6.3 Indemnification of Shareholders. In case any Shareholder (or
former Shareholder) shall be charged or held to be personally liable for any
obligation or liability of the Trust solely by reason of being or having been a
Shareholder and not because of such Shareholder's acts or omissions or for some
other reason, said Trust (upon proper and timely request by the Shareholder)
shall assume the defense against such charge and satisfy any judgment thereon,
and the Shareholder or former Shareholder (or his heirs, executors,
administrators or other legal representatives or in the case of a corporation or
other entity, its corporate or other general successor) shall be entitled out of
the assets of said Trust estate to be held harmless from and indemnified against
all loss and expense arising from such liability.
Section 6.4 Indemnification of Trustees, Officers, etc. The Trust shall
indemnify (from the assets of the Series or Class or Series or Classes in
question) each of its Trustees and officers (including persons who serve at the
Trust's request as directors, officers or trustees of another organization in
which the Trust has any interest as a Shareholder, creditor or otherwise
(hereinafter referred to as "Covered Person") against all liabilities, including
but not limited to amounts paid in satisfaction of judgments, in compromise or
as fines and penalties, and expenses, including reasonable accountants' and
counsel fees, incurred by any Covered Person in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or criminal,
before any court or administrative or legislative body, in which such Covered
Person may be or may have been involved as a party or otherwise or with which
such person may be or may have been threatened, while in office or thereafter,
by reason of being or having been such a Trustee or officer, director or
trustee, except with respect to any matter as to which it has been determined in
one of the manners described below, that such Covered Person (i) did not act in
good faith in the reasonable belief that such Covered Person's action was in or
not opposed to the best interests of the Trust or (ii) had acted with wilful
misfeasance, bad faith, gross negligence, or reckless disregard of the duties
involved in the conduct described in (i) and (ii) being referred to hereafter as
"Disabling Conduct." A determination that the Covered Person is not entitled to
indemnification due to
19
Disabling Conduct may be made by (i) a final decision on the merits by a court
or other body before whom the proceeding was brought that the person to be
indemnified was not liable by reason of Disabling Conduct, (ii) dismissal of a
court action or an administrative proceeding against a Covered Person for
insufficiency of evidence of Disabling Conduct, or (iii) a reasonable
determination, based upon a review of the facts, that the indemnitee was not
liable by reason of the facts, that the indemnitee was not liable by reason of
Disabling Conduct by (a) a vote of a majority of a quorum of Trustees who are
neither "interested persons" of the Trust as defined in section 2(a)(19) of the
1940 Act nor parties to the proceeding, or (b) an independent legal counsel in a
written opinion. Expenses, including accountants' and counsel fees so incurred
by any such Covered Person (but excluding amounts paid in satisfaction of
judgments, in compromise or as fines or penalties), may be paid from time to
time in advance of the final disposition of any such action, suit or proceeding,
provided that the Covered Person shall have undertaken to repay the amounts so
paid to the Series or Class in question if it is ultimately determined that
indemnification of such expenses is not authorized under this Article 6 and (i)
the Covered Person shall have provided security for such undertaking, (ii) the
Trust shall be insured against losses arising by reason of any lawful advances,
or (iii) a majority of a quorum of the disinterested Trustees who are not a
party to the proceeding, or an independent legal counsel in a written opinion,
shall have determined, based on a review of readily available facts (as opposed
to a full trial-type inquiry), that there is reason to believe that the Covered
Party ultimately will be found entitled to indemnification.
Section 6.5 Compromise Payment. As to any matter disposed of by a
compromise payment by any such Covered Person referred to in Section 6.4,
pursuant to a consent decree or otherwise, no such indemnification either for
said payment or for any other expenses shall be provided unless such
indemnification shall be approved (a) by a majority of the disinterested
Trustees who are not a party to the proceeding or (b) by an independent legal
counsel in a written opinion. Approval by the Trustees pursuant to clause (a) or
by independent legal counsel pursuant to clause (b) shall not prevent the
recovery from any Covered Person of any amount paid to such Covered Person in
accordance with any of such clauses as indemnification if such Covered Person is
subsequently adjudicated by a court of competent jurisdiction not to have acted
in good faith in the reasonable belief that such Covered Person's action was in
or not opposed to the best interests of the Trust or to have been liable to the
Trust or its Shareholders by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of such
Covered Person's office.
Section 6.6 Indemnification Not Exclusive, etc. The right of
indemnification provided by this Article 6 shall not be exclusive of or affect
any other rights to which any such Covered Person may be entitled. As used in
this Article 6, "Covered Person" shall include such person's heirs, executors
and administrators, an "interested Covered Person" is one against whom the
action, suit or other proceeding in question or another action, suit or other
proceeding on the same or similar grounds is then or has been pending or
threatened, and a "disinterested" person is a person against whom none of such
actions, suits or other proceedings or another action, suit or other proceeding
on the same or similar grounds is then or has been pending or threatened.
Nothing contained in this article shall affect any rights to indemnification to
which personnel of the Trust, other than Trustees and officers, and other
persons may be entitled by contract or otherwise under law, nor the power of the
Trust to purchase and maintain liability insurance on behalf of any such person.
20
Section 6.7 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 7
MISCELLANEOUS
Section 7.1 Duration and Termination of Trust. Unless terminated as
provided herein, the Trust shall continue without limitation of time and,
without limiting the generality of the foregoing, no change, alteration or
modification with respect to any Series or Class shall operate to terminate the
Trust. The Trust may be terminated at any time by a majority of the Trustees
then in office subject to a favorable vote of a majority of the outstanding
voting securities, as defined in the 1940 Act, Shares of each Series or Class
voting separately by Series or Class.
Upon termination, after paying or otherwise providing for all charges,
taxes, expenses and liabilities, whether due or accrued or anticipated as may be
determined by the Trustees, the Trust shall in accordance with such procedures
as the Trustees consider appropriate reduce the remaining assets to
distributable form in cash, securities or other property, or any combination
thereof, and distribute the proceeds to the Shareholders, in conformity with the
provisions of subsection (d) of Section 4.3.
Section 7.2 Reorganization. The Trustees may sell, convey, merge and
transfer the assets of the Trust, or the assets belonging to any one or more
Series or Classes, to another trust, partnership, association or corporation
organized under the laws of any state of the United States, or to the Trust to
be held as assets belonging to another Series or Class of the Trust, in exchange
for cash, shares or other securities (including, in the case of a transfer to
another Series or Class of the Trust, Shares of such other Series or Class) with
such transfer either (1) being made subject to, or with the assumption by the
transferee of, the liabilities belonging to each Series or Class the assets of
which are so transferred, or (2) not being made subject to, or not with the
assumption of, such liabilities; provided, however, that no assets belonging to
any particular Series or Class shall be so transferred unless the terms of such
transfer shall have first been approved at a meeting called for the purpose by
the affirmative vote of the holders of a majority of the outstanding voting
Shares, as defined in the 1940 Act, of that Series or Class. Following such
transfer, the Trustees shall distribute such cash, shares or other securities
(giving due effect to the assets and liabilities belonging to and any other
differences among the various Series or Classes the assets belonging to which
have been so transferred) among the Shareholders of the Series or Class the
assets belonging to which have been so transferred; and if all of the assets of
the Trust have been so transferred, the Trust shall be terminated.
The Trust, or any one or more Series or Classes, may either as the
successor, survivor, or non-survivor, (1) consolidate with one or more other
trusts, partnerships, associations or corporations organized under the laws of
the Commonwealth of Massachusetts or any other state of the United States, to
form a new consolidated trust, partnership, association or corporation under the
laws of which any one of the constituent entities is organized, or (2) merge
into one or more other trusts, partnerships, associations or corporations
organized under the laws of the Commonwealth of Massachusetts or any other state
of the United States, or have one or more such trusts, partnerships,
associations or
21
corporations merge into it, any such consolidation or merger to be upon such
terms and conditions as are specified in an agreement and plan of reorganization
entered into by the Trust, or one or more Series or Classes as the case may be,
in connection therewith. The terms "merge" or "merger" as used herein shall also
include the purchase or acquisition of any assets of any other trust,
partnership, association or corporation which is an investment company organized
under the laws of the Commonwealth of Massachusetts or any other state of the
United States. Any such consolidation or merger shall require the affirmative
vote of the holders of a majority of the outstanding voting Shares, as defined
in the 1940 Act, of each Sub-Trust affected thereby.
Section 7.3 Amendments. All rights granted to the Shareholders under this
Declaration of Trust are granted subject to the reservation of the right to
amend this Declaration of Trust as herein provided, except that no amendment
shall repeal the limitations on personal liability of any Shareholder or Trustee
or repeal the prohibition of assessment upon the Shareholders without the
express consent of each Shareholder or Trustee involved. Subject to the
foregoing, the provisions of this Declaration of Trust (whether or not related
to the rights of Shareholders) may be amended at any time, so long as such
amendment does not adversely affect the rights of any Shareholder with respect
to which such amendment is or purports to be applicable and so long as such
amendment is not in contravention of applicable law, including the 1940 Act, by
an instrument in writing signed by a majority of the then Trustees (or by an
officer of the Trust pursuant to the vote of a majority of such Trustees). Any
amendment to this Declaration of Trust that adversely affects the rights of
Shareholders may be adopted at any time by an instrument in writing signed by a
majority of the then Trustees (or by an officer of the Trust pursuant to the
vote of a majority of such Trustees) when authorized to do so by the vote in
accordance with subsection (e) of Section 4.3 of Shareholders holding a majority
of the Shares entitled to vote. Subject to the foregoing, any such amendment
shall be effective as provided in the instrument containing the terms of such
amendment or, if there is no provision therein with respect to effectiveness
upon the execution of such instrument and of a certificate (which may be a part
of such instrument) executed by a Trustee or officer of the Trust to the effect
that such amendment has been duly adopted.
Section 7.4 Filing of Copies; References; Headings. The original or a copy
of this instrument and of each restated declaration of trust or amendment hereto
shall be kept at the office of the Trust where it may be inspected by any
Shareholder. A copy of this instrument and of each restated declaration of trust
or amendment or hereto shall be filed with the Secretary of the Commonwealth of
Massachusetts and with any other governmental office where such filing may from
time to time be required, but the failure to make any such filing shall not
impair the effectiveness of this instrument or any such restatement or
amendment. Anyone dealing with the Trust may rely on a certificate by an officer
of the Trust as to whether or not any such restatements or amendments have been
made, as to the identities of the Trustees and officers, and as to any matters
in connection with the Trust hereunder; and, with the same effect as if it were
the original, may rely on a copy certified by an officer of the Trust to be a
copy of this instrument or of any such restatements or amendments. In this
instrument and in any such restatement or amendment, references to this
instrument, and all expressions like "herein," "hereof" and "hereunder" shall be
deemed to refer to this instrument as a whole as the same may be amended or
affected by any such restatements or amendments. The masculine gender shall
include the feminine and neuter genders. Headings are placed herein for
convenience of reference only and shall not be taken as a part hereof or control
of affect the meaning, construction or effect of this instrument. This
instrument may be executed in any number of counterparts each of which shall be
deemed an original.
22
Section 7.5 Applicable Law. This Agreement and Declaration of Trust is
created under and is to be governed by and construed and administered according
to the laws of the Commonwealth of Massachusetts, including the Massachusetts
Business Corporation Law as the same may be amended from time to time, to which
reference is made with the intention that matters not specifically covered
herein or as to which an ambiguity may exist shall be resolved as if the Trust
were a business corporation organized in Massachusetts, but the reference to
said Business Corporation Law is not intended to give the Trust, the Trustee,
the Shareholders or any other person any right, power, authority or
responsibility available only to or in connection with an entity organized in
corporate form. The Trust shall be of the type referred to in Section 1 of
Chapter 182 of the Massachusetts General Laws and of a type commonly called a
Massachusetts business trust, and without limiting the provisions hereof, the
Trust may exercise all powers which are ordinarily exercised by such a Trust.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals
for themselves and their assigns, as of the day and year first above written.
/s/ XXXXXX X. XXXXX /s/ XXXXXX X. XXXXXXXX
--------------------------- -----------------------------
Xxxxxx X. Xxxxx Xxxxxx X. Xxxxxxxx
/s/ XXXXX X. XXXXXXX /s/ XXXXXX X. XXXXXXX
--------------------------- -----------------------------
Xxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx, M.D.
/s/ XXXXXX X. XXXXXXX /s/ XXXXXXX X. XXXXX
--------------------------- -----------------------------
Xxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxx
/s/ XXXX XXXXXX /s/ XXXX X. XXXXXXXXX
--------------------------- -----------------------------
Xxxx Xxxxxx Xxxx X. Xxxxxxxxx
/s/ XXXXXX XXXXXXXX
--------------------------
Xxxxxx Xxxxxxxx
23
ROCHESTER PORTFOLIO SERIES
Amendment to the Agreement and Declaration of Trust
This amendment to the Amended and Restated Agreement and Declaration of Trust of
Rochester Portfolio Series (the "Restated Declaration of Trust") executed this
1st day of November, 1995.
WHEREAS, the Trustees established Rochester Portfolio Series (the "Trust"), a
business trust currently with one series, Limited Term New York Municipal Fund,
under the laws of the Commonwealth of Massachusetts, for the investment and
reinvestment of funds contributed thereto, under an Agreement and Declaration of
Trust dated June 13, 1991 and filed with the Commonwealth of Massachusetts on
June 14, 1991, as amended on February 6, 1992; and
WHEREAS, the Restated Declaration of Trust dated January 26, 1995 was filed by
the Trust with the Commonwealth of Massachusetts on February 8, 1995; and
WHEREAS, Section 7.3 of the Restated Declaration of Trust requires that
amendments thereto be by an instrument in writing signed by an officer of the
Trust pursuant to a majority vote of the Trustees and filed with the
Commonwealth of Massachusetts; and
WHEREAS, the Trustees now desire to amend the Restated Declaration of Trust and
such amendments and filing thereof have been approved by the unanimous written
consent of the Trustees.
NOW, THEREFORE,
1. The Restated Declaration of Trust is hereby amended to revise Section 5.1
entitled "Voting Powers"
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and Section 5.3 entitled "Record Date."
2. Section 5.1 shall read in its entirety as follows:
Section 5.1 Voting Powers. The Shareholders shall have power to vote only
(i) for the election or removal of Trustees as provided in Section 3.1,
(ii) with respect to any contract with a Contracting Party as provided in
Section 3.3 as to which Shareholder approval is required by the 1940 Act,
(iii) with respect to any termination or reorganization of the Trust or any
Series to the extent and as provided in Sections 7.1 and 7.2, (iv) with
respect to any amendment of this Declaration of Trust, to the extent and as
provided in Section 7.3, (v) to the same extent as the stockholders of a
Massachusetts business corporation as to whether or not a court action,
proceeding or claim would or should not be brought or maintained
derivatively as a class action on behalf of the Trust or any Series or
Class thereof or the Shareholders (provided, however, that a shareholder of
a particular Series or Class shall not be entitled to initiate a derivative
or class action on behalf of any other Series or Class (or shareholder of
any other Series or Class) of the Trust) and (vi) with respect to such
additional matters relating to the Trust as may be required by the 1940
Act, this Declaration of Trust, the By-Laws or any registration of the
Trust with the Commission (or successor agency) or any state, or as the
Trustees may consider necessary or desirable. There shall be no cumulative
voting on the election of Trustees. Shares may be voted in person or by
proxy. Proxy votes may be recorded by telephone in accordance with such
procedures as may be established by the Trustees from time to time. A
shareholder may designate by telephone a person as his or her
attorney-in-fact to vote his or her proxy in written form. A proxy with
respect to shares held in the name of two or more persons shall be valid if
executed by any one of them unless at or prior to exercise of the proxy the
Trust receives specific written notice to the contrary from any one of
them. A proxy purporting to be executed by or on behalf of a Shareholder
shall be deemed valid unless challenged at or prior to its exercise and the
burden of proving invalidity shall rest on the challenger. Until shares are
issued, the Trustees may exercise all rights of Shareholders and may take
any action required by law, this Declaration of Trust or the By-Laws to be
taken by the Shareholders.
3. Section 5.3 shall read in its entirely as follows:
Section 5.3 Record Dates. For the purpose of determining the Shareholders
who are entitled to vote or act at any meeting or any adjournment thereof,
or who are entitled to participate in any dividend or distribution, or for
the purpose of any other action, the Trustees may from time to time close
the transfer books for such period, not exceeding 30 days (except at or in
connection with the termination of the Trust), as the Trustees may
determine; or without closing the transfer books the Trustees may fix a
date and time not more than 60 days prior to the date of any meeting of
Shareholders or other action as the date and time of record for the
determination of Shareholders entitled to vote at such meeting or any
adjournment thereof, whether or not the date to which a meeting is
adjourned is a date in excess of 60 days of the Record Date, or to be
treated
25
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.
4. These revisions to the Restated Declaration of Trust shall be effective upon
filing of this amendment with the Secretary of State of the Commonwealth of
Massachusetts.
5 All other terms and conditions of the Restated Declaration of Trust shall
remain the same.
IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed on
the day and year first set forth above.
Rochester Portfolio Series
/s/ XXXXXX X. XXXXXXXX
---------------------------------
Xxxxxx X. Xxxxxxxx, President
26
