Effective: 4/7/86
Amended: 3/6/95, 6/18/99
AGREEMENT AND DECLARATION OF TRUST
OF
AXP SPECIAL TAX-EXEMPT SERIES TRUST
This AGREEMENT AND DECLARATION OF TRUST, made at Boston,
Massachusetts this day of April, 1986, by and between the Settlor and the
Trustee whose signature is set forth below (the "Initial Trustee")
WITNESSETH THAT:
WHEREAS, Xxxxx X. Xxxxx, an individual residing in Brookline,
Massachusetts (the "Settlor"), proposes to deliver to the Initial Trustee
the sum of one hundred dollars ($100.00) lawful money of the United
States of America in trust hereunder and to authorize the Initial Trustee
and all other Persons acting as Trustees hereunder to employ such funds,
and any other funds coming into their hands or the hands of their
successor or successors as such Trustees, to carry on the business of an
investment company, and as such of buying, selling, investing in or
otherwise dealing in and with stocks, bonds, debentures, warrants,
options, futures contracts and other securities and interests therein, or
calls or puts with respect to any of the same, or such other and further
investment media and other property as the Trustees may deem advisable,
which are not prohibited by law or the terms of this Declaration; and
WHEREAS, the Initial Trustee is willing to accept such sum, together
with any and all additions thereto and the income or increments thereof,
upon the terms, conditions and trusts hereinafter set forth; and
WHEREAS, the assets held by the Trustees may be divided into separate
Funds, each with its own separate investment portfolio, investment
objectives, policies and purposes, and that the beneficial interest in
each such Fund shall be divided into transferable Shares of Beneficial
Interest, a separate Series of Shares for each Fund, all in accordance
with the provisions hereinafter set forth; and
WHEREAS, it is desired that the trust established hereby (the
"Trust") be managed and operated as a trust with transferable shares under
the laws of Massachusetts, of the type commonly known as and referred to
as a Massachusetts business trust, in accordance with the provisions
hereinafter set forth,
NOW, THEREFORE, the Initial Trustee, for himself and his successors
as Trustees, hereby declares, and agrees with the Settlor, for himself
and for all Persons who shall hereafter become holders of Shares of
Beneficial Interest of the Trust, of any Series, that the Trustees will
hold the sum delivered to them upon the execution hereof, and all other
and further cash, securities and other property of every type and
description which they may in any way acquire in their capacity as such
Trustees, together with the income therefrom and the proceeds thereof, IN
TRUST NEVERTHELESS, to manage and dispose of the same for the benefit
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of the holders from time to time of the Shares of Beneficial Interest of the
several Series being issued and to be issued hereunder and in the manner and
subject to the provisions hereof, to wit:
ARTICLE I
THE TRUST
6/18/99
SECTION 1.1. Name. The name of the Trust shall be
"AXP SPECIAL TAX-EXEMPT SERIES TRUST," and so far as may be
practicable the Trustees shall conduct the Trust's activities, execute all
documents and xxx or be sued under that name, which name (and the word "Trust"
wherever used in this Agreement and Declaration of Trust, except where the
context otherwise requires) shall refer to the Trustees in their capacity as
Trustees, and not individually or personally, and shall not refer to the
officers, agents or employees of the Trust or of such Trustees, or to the
holders of the Shares of Beneficial Interest of the Trust, of any Series. If the
Trustees determine that the use of such name is not practicable, legal or
convenient at any time or in any jurisdiction, or if the trust is required to
discontinue the use of such name pursuant to Section 10.5 hereof, then subject
to that Section, the Trustees may use such other designation, or they may adopt
such other name for the Trust as they deem proper, and the Trust may hold
property and conduct its activities under such designation or name.
SECTION 1.2. Location. The Trust shall have an office in Boston,
Massachusetts, unless changed by the Trustees to another location in
Massachusetts or elsewhere, but such office need not be the sole or principal
office of the Trust. The Trust may have such other offices or places of business
as the Trustees may from time to time determine to be necessary or expedient.
SECTION 1.3. Nature of Trust. The Trust shall be a trust with transferable
shares under the laws of The Commonwealth of Massachusetts, of the type referred
to in Section 1 of Chapter 182 of the Massachusetts General Laws and commonly
termed a Massachusetts business trust. The Trust is not intended to be, shall
not be deemed to be, and shall not be treated as, a general partnership, limited
partnership, joint venture, corporation or joint stock company. The Shareholders
shall be beneficiaries and their relationship to the Trustees shall be solely in
that capacity in accordance with the rights conferred upon them hereunder.
SECTION 1.4. Definitions. As used in this Agreement and Declaration of
Trust, the following terms shall have the meanings set forth below unless the
context thereof otherwise requires:
"Accounting Agent" shall have the meaning designated in Section 5.2(g)
hereof.
"Administrator" shall have the meaning designated in Section 5.2(b) hereof.
"Affiliated Person" shall have the meaning assigned to it in the 1940 Act.
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"Bylaws" shall mean the Bylaws of the Trust, as amended from time to time.
"Certificate of Designation" shall have the meaning designated in Section
6.1 hereof.
"Certificate of Termination" shall have the meaning designated in Section
6.1 hereof.
3/6/95
"Class" or "Classes" shall mean, with respect to any Series, any unissued
Shares of such Series in respect of which the Trustees shall from time to time
fix and determine any special provisions relating to sales charges, any rights
of redemption and the price, terms and manner of redemption, special and
relative rights as to dividends and other distributions and on liquidation,
sinking or purchase fund provisions, conversion rights, and conditions under
which the Shareholders of such Class shall have separate voting rights or not
voting rights.
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"Class A Shares" shall mean, with respect to Shares of any Fund established
and designated by the Declaration, that class of Shares of which are subject to
a sales charge or "load" upon the purchase thereof but the proceeds of the
redemption of which are not subject to a contingent deferred sales charge
payable on such redemption.
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"Class B Conversion Date" shall have the meaning designated in paragraph
(i) of Section 6.2(1) hereof.
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"Class B Shares" shall mean, with respect to Shares of any Fund established
and designated by the Declaration, that class of Shares of which are not subject
to a sales charge or "load" upon the purchase thereof but the proceeds of the
redemption of which may be reduced, to the extent determined by the Trustees, by
the amount of a contingent deferred sales charge payable on such redemption
pursuant to subsection (e) of Section 6.2 hereof.
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"Class Y Shares" shall mean, with respect to Shares of any Fund established
and designated by the Declaration, that class of Shares of which are not subject
to a sales charge or "load" upon the purchase thereof and the proceeds of the
redemption of which are not subject to a contingent deferred sales charge
payable on such redemption.
"Commission" shall have the same meaning as in the 1940 Act.
"Contracting Party" shall have the meaning designated in the preamble to
Section 5.2 hereof.
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"Conversion Date"shal1 mean the effective date, established in accordance
with the provisions of this Declaration or with procedures established by the
Trustees, of the conversion of Shares of any Class into, or of the exchange of
Shares of any Class for, Shares of any other Class.
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"Converted Shares" shall have the meaning designated in paragraph (i) of
Section 6.2(k) hereof.
"Covered Person" shall have the meaning designated in Section 8.4 hereof.
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"Custodian" shall have the meaning designated in Section 5.2(d) hereof.
"Declaration" and "Declaration of Trust" shall mean this Agreement and
Declaration of Trust and all amendments or modifications thereof as from time to
time in effect. References in this Agreement and Declaration of Trust to
"hereof," "herein" and "hereunder" shall be deemed to refer to the Declaration
of Trust generally, and shall not be limited to the particular text, Article or
Section in which such words appear.
"Disabling Conduct" shall have the meaning designated in Section 8.4
hereof.
"Distributor" shall have the meaning designated in Section 5.2(c) hereof.
"Dividend Disbursing Agent" shall have the meaning designated in Section
5.2(e) hereof.
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"Eligible Investment Company" shall have the meaning designated in
paragraph (i) of Section 6.2(k) hereof.
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"Existing Fund" or "Existing Funds" shall have the meaning designated in
Section 6.1(a) hereof.
3/6/95
"Existing Series" shall have the meaning designated in Section 6.1(a)
hereof.
"Fund" or "Funds" shall mean one or more of the separate components of the
assets of the Trust which are now or hereafter established and designated under
or in accordance with the provisions of Article VI hereof.
"Fund Assets" shall have the meaning defined in Section 6.2(a) hereof.
"General Items" shall have the meaning defined in Section 6.2(a) hereof.
"Initial Trustee" shall have the meaning defined in the preamble hereto.
"Investment Manager" shall have the meaning stated in Section 5.2(a)
hereof.
"Majority of the Trustees" shall mean a majority of the Trustees in office
at the time in question. At any time at which there shall be only one (1)
Trustee in office, such term shall mean such Trustee.
3/6/95
"Majority Shareholder Vote," as used with respect to the election of any
Trustee at a meeting of Shareholders, shall mean the vote for the election of
such Trustee of a plurality of all outstanding Shares of the Trust, without
regard to Series or Class, represented in person or by proxy and entitled to
vote thereon, provided tat a quorum (determined as provided in Section 7.5
hereof) is present, and as used with respect to any other action required or
permitted to be taken by Shareholders, shall mean the vote for such action of
the holders of that majority of all outstanding Shares (or, where a separate
vote of Shares of any
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particular Series of Class is to be taken, the affirmative vote of that majority
of the outstanding Shares of that Series or Class) of the Trust which consists
of: (i) a majority of all Shares (or of Shares of the particular Series of
Class) represented in person or by proxy and entitled to vote on such action at
the meeting of Shareholders at which such action is to be taken, provided that a
quorum (determined as provided in Section 7.5 hereof) is present; or (ii) if
such action is to be taken by written consent of Shareholders, a majority of all
Shares (or of Shares of the particular Series of Class) issued and outstanding
and entitled to vote on such action; provided that (iii) as used with respect to
any action requiring the affirmative vote of "a majority of the outstanding
voting securities", as the quoted phrase is defined in the 1940 Act, of the
Trust or of any Fund, "Majority Shareholder Vote" means the vote for such action
at a meeting of Shareholders of the smallest majority of all outstanding Shares
of the Trust (or of Shares of the particular Series or Class) entitled to vote
on such action which satisfies such 1940 Act voting requirement.
"1940 Act" shall mean the provisions of the Investment Company Act of 1940
and the rules and regulations thereunder, both as amended from time to time, and
any order or orders thereunder which may from time to time be applicable to the
Trust.
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"Original Purchase Date" shall have the meaning designated in paragraph
(i) of Section 6.1(1) hereof.
"Person" shall mean and include individuals, as well as corporations,
limited partnerships, general partnerships, joint stock companies, joint
ventures, associations, banks, trust companies, land trusts, business trusts or
other organizations established under the laws of any jurisdiction, whether or
not considered to be legal entities, and governments and agencies and political
subdivisions thereof.
"Principal Underwriter" shall have the meaning designated in Section 5.2(c)
hereof.
"Prospectus," as used with respect to any Fund or Series of Shares, shall
mean the prospectus relating to such Fund or Series which constitutes part of
the currently effective Registration Statement of the Trust under the Securities
Act of 1933, as such prospectus may be amended or supplemented from time to
time.
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"Resulting Shares" shall have the meaning designated in paragraph (i) of
Section 6.2(k) hereof.
"Securities" shall mean any and all xxxx, notes, bonds, debentures or other
obligations or evidences of indebtedness, certificates of deposit, bankers'
acceptances, commercial paper, repurchase agreements or other money market
instruments; stocks, shares or other equity ownership interests; and warrants,
options, futures contracts or other instruments representing rights to subscribe
for, purchase, receive or otherwise acquire or to sell, transfer, assign or
otherwise dispose of, and scrip, certificates, receipts or other instruments
evidencing any ownership rights or interests in, any of the foregoing and "when
issued" and "delayed delivery" contracts for securities, issued, guaranteed or
sponsored by any governments, political subdivisions or governmental
authorities, agencies or instrumentalities, by any individuals, firms,
companies, corporations,
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syndicates, associations or trusts, or by any other organizations or entities
whatsoever, irrespective of their forms or the names by which they may be
described, whether or not they be organized and operated for profit, and whether
they be domestic or foreign with respect to The Commonwealth of Massachusetts or
the United States of America.
"Securities of the Trust" shall mean any Securities issued by the Trust.
"Series" shall mean one or more of the series of Shares authorized by the
Trustees to represent the beneficial interest in one or more of the Funds.
"Settlor" shall have the meaning stated in the first "Whereas" clause set
forth above.
"Shareholder" shall mean as of any particular time any Person shown of
record at such time on the books of the Trust as a holder of outstanding Shares
of any Series, including a pledgee into whose name any such Shares are
transferred on the books of the Trust.
"Shareholder Servicing Agent" shall have the meaning designated in Section
5.2(f) hereof.
"Shares" shall mean the transferable units into which the beneficial
interest in the Trust and each Fund of the Trust (as the context may require)
shall be divided from time to time, and includes fractions of Shares as well as
whole Shares. All references herein to "Shares" which are not accompanied by a
reference to any particular Series or Fund shall be deemed to apply to
outstanding Shares without regard to Series.
"Single Class Voting," as used with respect to any matter to be acted upon
at a meeting or by written consent of Shareholders, shall mean a style of voting
in which each holder of one or more Shares shall be entitled to one vote on the
matter in question for each Share standing in his name on the records of the
Trust, irrespective of Series, and all outstanding Shares of all Series vote as
a single class.
"Statement of Additional Information," 11 as used with respect to any Fund
or Series of Shares, shall mean the statement of additional information relating
to such Fund or Series, which constitutes part of the currently effective
Registration Statement of the Trust under the Securities Act of 1933, as such
statement of additional information may be amended or supplemented from time to
time.
"Transfer Agent" shall have the meaning defined in Section 5.2(e) hereof.
"Trust" shall have the meaning stated in the fourth "Whereas" clause set
forth above.
"Trust Property" shall mean, as of any particular time, any and all
property which shall have been transferred, conveyed or paid to the Trust or the
Trustees, and all interest, dividends, income, earnings, profits and gains
therefrom, and proceeds thereof, including any proceeds derived from the sale,
exchange or liquidation thereof, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, and which at
such time is owned or held
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by, or for the account of, the Trust or the Trustees, without regard to the Fund
to which such property is allocated.
"Trustees" shall mean, collectively, the Initial Trustee, so long as he
shall continue in office, and all other individuals who at the time in question
have been duly elected or appointed as Trustees of the Trust in accordance with
the provisions hereof and who have qualified and are then in office. At any time
at which there shall be only one (1) Trustee in office, such term shall mean
such a single Trustee.
SECTION 1.5. Real Property to be Converted into Personal Property.
Notwithstanding any other provision hereof, any real property at any time
forming part of the Trust Property shall be held in trust for sale and
conversion into personal property at such time or times and in such manner and
upon such terms as the Trustees shall approve, but the Trustees shall have power
until the termination of this Trust to postpone such conversion as long as they
in their uncontrolled discretion shall think fit, and for the purpose of
determining the nature of the interest of the Shareholders therein, all such
real property shall at all times be considered as personal property.
ARTICLE II
PURPOSE OF THE TRUST
The purpose of the Trust shall be to engage in the business of being an
investment company, and such of subscribing for, purchasing or otherwise
acquiring, holding for investment or trading in, borrowing, lending and selling
short, selling, assigning, negotiating or exchanging and otherwise disposing of,
and turning to account, realizing upon and generally dealing in and with, in any
manner, (a) Securities of all kinds, (b) precious metals and other minerals,
contracts to purchase and sell, and other interests of every nature and kind in,
such metals or minerals, and Cc) rare coins and other numismatic items, and all
as the Trustees in their discretion shall determine to be necessary, desirable
or appropriate, and to exercise and perform any and every act, thing or power
necessary, suitable or desirable for the accomplishment of such purpose, the
attainment of any of the objects or the furtherance of any of the powers given
hereby which are lawful purposes, objectives or powers of a trust with
transferable shares of the type commonly termed a Massachusetts business trust;
and to do every other act or acts or thing or things incidental or appurtenant
to or growing out of or in connection with the aforesaid objects, purposes or
powers, or any of them, which a trust of the type commonly termed a
Massachusetts business trust is not now or hereafter prohibited from doing,
exercising or performing.
ARTICLE III
POWERS OF THE TRUSTEES
SECTION 3.1. Powers in General. The Trustees shall have, without other or
further authorization, full, entire, exclusive and absolute power, control and
authority over, and management of, the business of the Trust and over the Trust
Property, to the same extent as if the Trustees were the sole owners of the
business and property of the Trust in their own right, and with such powers of
delegation as may be
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permitted by this Declaration, subject only to such limitations as may be
expressly imposed by this Declaration of Trust or by applicable law. The
enumeration of any specific power or authority herein shall not be construed as
limiting the aforesaid power or authority or any specific power or authority.
Without limiting the foregoing, the Trustees may adopt Bylaws 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
Bylaws do not reserve that right to the Shareholders; they may select, and from
time to time change, the fiscal year of the Trust; they may adopt and use a seal
for the Trust, provided, that unless otherwise required by the Trustees, it
shall not be necessary to place the seal upon, and its absence shall not impair
the validity of, any document, instrument or other paper executed and delivered
by or on behalf of the Trust; they may from time to time in accordance with the
provisions of Section 6.1 hereof establish one or more Funds to which they may
allocate such of the Trust Property, subject to such liabilities, as they shall
deem appropriate, each such Fund to be operated by the Trustees as a separate
and distinct investment medium and with separately defined investment objectives
and policies and distinct investment purposes, all as established by the
Trustees, or from time to time changed by them or by the shareholders of said
Fund; they may as they consider appropriate elect and remove officers and
appoint and terminate agents and consultants and hire and terminate employees,
any one or more of the foregoing of whom may be a Trustee; they may appoint from
their own number, and terminate, any one or more committees consisting of one or
more Trustees, including without implied limitation an Executive Committee,
which may, when the Trustees are not in session and subject to the 1940 Act,
exercise some or all of the power and authority of the Trustees as the Trustees
may determine; in accordance with Section 5.2 they may employ one or more
Investment Managers, Administrators and Custodians and may authorize any
Custodian to employ subcustodians or agents and to deposit all or any part of
such assets in a system or systems for the central handling of Securities,
retain Transfer, Dividend Disbursing, Accounting or Shareholder Servicing Agents
or any of the foregoing, provide for the distribution of Shares by the Trust
through one or more Distributors, Principal Underwriters or otherwise, set
record dates or times for the determination of Shareholders entitled to
participate in, benefit from or act with respect to various matters; and in
general they may delegate to any officer of the Trust, to any Committee
designated the Trustees and to any employee, Investment Manager, Administrator,
Distributor, Custodian, Transfer Agent, Dividend Disbursing Agent, or any other
agent or consultant of the Trust, such authority, powers, functions and duties
as they consider desirable or appropriate for the conduct of the business and
affairs of the Trust, including without implied limitation the power and
authority to act in the name of the Trust and of the Trustees, to sign documents
and to act as attorney-in-fact for the Trustees. Without limiting the foregoing
and to the extent not inconsistent with the 1940 Act or other applicable law,
the Trustees shall have power and authority:
(a) Investments. To invest and reinvest cash and other property; to buy,
for cash or on margin, and otherwise acquire and hold, Securities created or
issued by any Persons, including Securities maturing after the possible
termination of the Trust; to make payment therefor in any lawful manner in
exchange for any of the Trust Property; and to hold cash or other property
uninvested without in any event being bound or limited by any present or future
law or custom in regard to investments by trustees;
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(b) Disposition of Assets. Upon such terms and conditions as they deem
best, to lend, sell, exchange, mortgage, pledge, hypothecate, grant security
interests in, encumber, negotiate, convey, transfer or otherwise dispose of, and
to trade in, any and all of the Trust Property, free and clear of all trusts,
for cash or on terms, with or without advertisement, and on such terms as to
payment, security or otherwise, all as they shall deem necessary or expedient;
(c) Ownership Powers. To vote or give assent, or exercise any and all other
rights, powers and privileges of ownership with respect to, and to perform any
and all duties and obligations as owners of, any Securities or other property
forming part of the Trust Property, the same as any individual might do; to
exercise powers and rights of subscription or otherwise which in any manner
arise out of ownership of Securities, and to receive powers of attorney from,
and to execute and deliver proxies or powers of attorney to, such Person or
Persons as the Trustees shall deem proper, receiving from or granting to such
Person or Person such power and discretion with relation to Securities or other
property of the Trust, all as the Trustees shall deem proper;
(d) Form of Holding. To hold any Security or other property in a form not
indicating any trust, whether in bearer, unregistered or other negotiable form,
or in the name of the Trustees or of the Trust, or of the Fund to which such
Securities or property belong, or in the name of a Custodian, subcustodian or
other nominee or nominees, or otherwise, upon such terms, in such manner or with
such powers, as the Trustees may determine, and with or without indicating any
trust or the interest of the Trustees therein;
(e) Reorganization etc. To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer, any
Security of which is or was held in the Trust or any Fund; to consent to any
contract, lease, mortgage, purchase or sale of property by such corporation or
issuer, and to pay calls or subscriptions with respect to any Security forming
part of the Trust Property;
(f) Voting Trusts etc. To join with other holders of any Securities in
acting through a committee, depository, voting trustee or otherwise, and in that
connection to deposit any Security with, or transfer any Security to, any such
committee, depository or trustee, and to delegate to them such power and
authority with relation to any Security "whether or not so deposited or
transferred) as the Trustees shall deem proper, and to agree to pay, and to pay,
such portion of the expenses and compensation of such committee, depository or
trustee as the Trustees shall deem proper;
(g) Contracts etc. To enter into, make and perform all such obligations,
contracts, agreements and undertakings of every kind and description, with any
Person or Persons, as the Trustees shall in their discretion deem expedient in
the conduct of the business of the Trust, for such terms as they shall see fit,
whether or not extending beyond the term of office of the Trustees, or beyond
the possible expiration of the Trust; to amend, extend,
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release or cancel any such obligations, contracts, agreements or understandings;
and to execute, acknowledge, deliver and record all written instruments which
they may deem necessary or expedient in the exercise of their powers;
(h) Guarantees etc. To endorse or guarantee the payment of any notes or
other obligations of any Person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof; and to mortgage and pledge the
Trust Property or any part thereof to secure any of or all such obligations;
(i) Partnerships etc. To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(j) Insurance. To purchase and pay for entirely out of Trust Property such
insurance as they may deem necessary or appropriate for the conduct of the
business, including, without limitation, insurance policies insuring the assets
of the Trust and payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, consultants, Investment Managers, managers,
Administrators, Distributors, Principal Underwriters, or other independent
contractors, or any thereof (or any Person connected therewith), of the Trust,
individually, against all claims and liabilities of every nature arising by
reason of holding, being or having held any such office or position, or by
reason of any action alleged to have been taken or omitted by ay such Person in
any such capacity, including any action taken or omitted that may be determined
to constitute negligence, whether or not the Trust would have the power to
indemnify such Person against such liability;
(k) Pensions etc. To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of providing such
retirement and other benefits, for any or all of the Trustees, officers,
employees and agents of the Trust;
(1) Power of Collection and Litigation. To collect, xxx for and receive all
sums of money coming due to the Trust, to employ counsel, and to commence,
engage in, prosecute, intervene in, join, defend, compound, compromise, adjust
or abandon, in the name of the Trust, any and all actions, suits, proceedings,
disputes, claims, controversies, demands or other litigation or legal
proceedings relating to the Trust, the business of the Trust, the Trust
Property, or the Trustees, officers, employees, agents and other independent
contractors of the Trust, in their capacity as such, at law or in equity, or
before any other bodies or tribunals, and to compromise, arbitrate or otherwise
adjust any dispute to which the Trust may be a party, whether or not any suite
is commenced or any claim shall have been made or asserted;
(m) Issuance and Repurchase of Shares. To issue, sell, repurchase, redeem,
retire, cancel, acquire, hold, resell, reissue, dispose of, transfer, and
otherwise deal in Shares of any Series,
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and, subject to Article VI hereof, to apply to any such repurchase, redemption,
retirement, cancellation or acquisition of Shares of any Series, any of the Fund
Assets belonging to the Fund to which such Series relates, whether constituting
capital or surplus or otherwise, to the full extent now or hereafter permitted
by applicable law; provided, that any Shares belonging to the Trust shall not be
voted, directly or indirectly;
(n) Offices. To have one or more offices, and to carry on all or any of the
operations and business of the Trust, in any of the States, Districts or
Territories of the United States, and in any and all foreign countries, subject
to the laws of such State, District, Territory or country;
(o) Expenses. To incur and pay any and all such expenses and charges as
they may deem advisable (including without limitation appropriate fees to
themselves as Trustees), and to pay all such sums of money for which they may be
held liable by way of damages, penalty, fine or otherwise;
(p) Agents etc. To retain and employ any and all such servants, agents,
employees, attorneys, brokers, investment advisers or managers, accountants,
escrow agents, depositories, consultants, ancillary trustees, custodians, agents
for collection, insurers, banks and officers, as they think best for the
business of the Trust or any Fund, to supervise and direct the acts of any of
the same, and to fix and pay their compensation and define their duties;
(q) Accounts. To determine, and from time to time change, the method or
form in which the accounts of the Trust shall be kept;
(r) Valuation. Subject to the requirements of the 1940 Act, to determine
from time to time the value of all or any part of the Trust Property and of any
services, Securities, property or other consideration to be furnished to or
acquired by the Trust, and from time to time to revalue all or any part of the
Trust Property in accordance with such appraisals or other information as is, in
the Trustees' sole judgment, necessary and satisfactory;
(s) Indemnification. In addition to the mandatory indemnification provided
for in Article VIII hereof and to the extent permitted by law, to indemnify or
enter into agreements with respect to indemnification with any Person with whom
this Trust has dealings, including, without limitation, any independent
contractor, to such extent as the Trustees shall determine; and
(t) General. To do all such other acts and things and to conduct, operate,
carry on and engage in such other lawful businesses or business activities as
they shall in their sole and absolute discretion consider to be incidental to
the business of the Trust or any Fund as an investment company, and to exercise
all powers which they shall in their discretion consider necessary, useful or
appropriate to carry on the business of the Trust or any Fund, to promote any of
the purposes for which the Trust is formed, whether or not such things are
specifically mentioned herein, in order to protect or promote the interests of
the Trust or any Fund, or otherwise to carry out the provisions of this
Declaration.
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SECTION 3.2. Borrowings; Financings; Issuance of Securities. Subject to the
requirements of the 1940 Act, the Trustees have power to borrow or in any other
manner raise such sum of sums of money, and to incur such other indebtedness for
goods or services, or for or in connection with the purchase or other
acquisition of property, as they shall deem advisable for the purposes of the
Trust, in any manner and on any terms, and to evidence the same by negotiable or
non-negotiable Securities which may mature at any time or times, even beyond the
possible date of termination of the Trust; to issue Securities of any type for
such cash, property, services or other considerations, and at such time or times
and upon such terms, as they may deem advisable; and to reacquire any such
Securities. Any such Securities of the Trust may, at the discretion of the
Trustees, be made convertible into Shares of any Series, or may evidence the
right to purchase, subscribe for or otherwise acquire Shares of any Series, at
such times and on such terms as the Trustees may prescribe.
SECTION 3.3. Deposits. Subject to the requirements of the 1940 Act, the
Trustees shall have power to deposit any moneys or securities included in the
Trust Property with any one or more banks, trust companies or other banking
institutions, whether or not such deposits will draw interest. Such deposits are
to be subject to withdrawal in such manner as the Trustees may determine, and
the Trustees shall have no responsibility for any loss which may occur by reason
of the failure of the bank, trust company or other banking institution with
which any such moneys or Securities have been deposited, other than liability
based on their gross negligence or willful fault.
SECTION 3.4. Allocations. The Trustees shall have power to determine
whether moneys or other assets received by the Trust shall be charged or
credited to income or capital, or allocated between income and capital,
including the power to amortize or fail to amortize any xxx or all of any
premium or discount, to treat any part or all of the profit resulting from the
maturity or sale of any asset, whether purchased at a premium or at a discount,
as income or capital, or to apportion the same between income and capital, to
apportion the sale price of any asset between income and capital, and to
determine in what manner any expenses or disbursements are to be borne as
between income and capital, whether or not in the absence of the power and
authority conferred by this Section 3.4 such assets would be regarded as income
or as capital or such expense or disbursement would be charged to income or to
capital; to treat any dividend or other distribution on any investment as income
or capital, or to apportion the same between income and capital; to provide or
fail to provide reserves, including reserves for depreciation, amortization or
obsolescence in respect of any Trust Property in such amounts and by such
methods as they shall determine; to allocate less than all of the consideration
paid for Shares of any Series to the shares of beneficial interest account of
the Fund to which such Shares relate and to allocate the balance thereof to
paid-in capital of that Fund, and to reallocate such amounts from time to time;
all as the Trustees may reasonably deem proper.
SECTION 3.5. Further Powers Limitations. The Trustees shall have power to
do all such other matters and things, and to execute all such instruments, as
they deem necessary, proper or desirable in order to carry out, promote or
advance the interests of the Trust, although such matters or things are not
herein specifically mentioned. Any determination as to what is in the interests
of the Trust made by the
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Trustees in good faith shall be conclusive. In construing the provisions of this
Declaration of Trust, the presumption shall be in favor of a grant of power to
the Trustees. The Trustees shall not be required to obtain any court order to
deal with the Trust Property. The Trustees may limit their right to exercise any
of their powers through express restrictive provisions in the instruments
evidencing or providing the terms for any Securities of the Trust or in other
contractual instruments adopted on behalf of the Trust.
ARTICLE IV
TRUSTEES AND OFFICERS
SECTION 4.1. Number Designation Election Term etc.
(a) Initial Trustee. Upon his execution of this Declaration of
Trust or a counterpart hereof or some other writing in which he accepts
such Trusteeship and agrees to the provisions hereof, the individual whose
signature is affixed hereto as Initial Trustee shall become the Initial
Trustee hereof.
(b) Number. The Trustees serving as such, whether named above or
hereafter becoming Trustees, may increase (to not more than fifteen (15))
or decrease the number of Trustees to a number other than the number
theretofore determined by a written instrument signed by a Majority of the
Trustees to a number other than he number theretofore determined by a
written instrument signed by a Majority of the trustees (or by an officer
of the Trust pursuant to the vote of a Majority of the Trustees). No
decrease in the number of Trustees shall have the effect of removing any
Trustee from office prior to the expiration of his term, but the number of
Trustees may be decreased in conjunction with the removal of a Trustee
pursuant to subsection (e) of this Section 4.1.
(c) Election and Term. The Trustees shall be elected by the
Shareholders of the Trust at the first meeting of Shareholders immediately
prior to the initial public offering of Shares of the Trust, and the term
of office of any Trustees in office before such election shall terminate at
the time of such election. Subject to Section 16(a) of the 1940 Act and to
the preceding sentence of this subsection (c), the Trustees shall have the
power to set and alter the terms of office of the Trustees, and at any time
to lengthen or shorten their own terms or make their terms of unlimited
duration, to elect their own successors and, pursuant to subsection (f) of
this Section 4.1, to appoint Trustees to fill vacancies; provided, that
Trustees shall be elected by a Majority Shareholder Vote at any such time
or times as the Trustees shall determine that such action is required under
Section 16(a) of the 1940 Act or, if not so required, that such action is
advisable; and further provided, that, after the initial election of
Trustees by the Shareholders, the term of office of any incumbent Trustee
shall continue until the termination of this Trust or his earlier death,
resignation, retirement, bankruptcy, adjudicated incompetency or other
incapacity or removal, or if not so terminated, until the election of such
Trustee's successor in office has become effective in accordance with this
subsection (c).
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(d) Resignation and Retirement. Any Trustee may resign his trust or retire
as a Trustee, by a written instrument signed by him and delivered to the other
Trustees or to any officer of the Trust, and such resignation or retirement
shall take effect upon such delivery or upon such later date as is specified in
such instrument.
(e) Removal. Any Trustee may be removed with or without cause at any time:
(i) by written instrument, signed by at least two-thirds (2/3) of the number of
Trustees prior to such removal, specifying the date upon which such removal
shall become effective; or (ii) by vote of Shareholders holding not less than
two-thirds (2/3) of the Shares of each Series then outstanding, cast in person
or by proxy at any meeting called for the purpose; or (iii) by a written
declaration signed by Shareholders holding not less than two-thirds (2/3) of the
Shares of each Series then outstanding and filed with the Trust's Custodian.
(f) Vacancies. Any vacancy or anticipated vacancy resulting from any
reason, including an increase in the number of Trustees, may (but need not
unless required by the 0000 Xxx) be filled by a Majority of the Trustees,
subject to the provisions of Section 16(a) of the 1940 Act, through the
appointment in writing of such other individual as such remaining Trustees in
their discretion shall determine; provided, that if there shall be no Trustees
in office, such vacancy or vacancies shall be filled by vote of the
Shareholders. Any such appointment or election shall be effective upon such
individual's written acceptance of his appointment as a Trustee and his
agreement to be bound by the provisions of this Declaration of Trust, except
that any such appointment in anticipation of a vacancy to occur by reason of
retirement, resignation or increase in the number of Trustees to be effective at
a later date shall become effective only at or after the effective date of said
retirement, resignation or increase in the number of Trustees.
(g) Acceptance of Trusts. Any individual appointed as a Trustee under
subsection (f), and any individual elected as a Trustee under subsection Cc), of
this Section 4.1 who was not, immediately prior to such election, acting as a
Trustee, shall accept such appointment or election in writing and agree in such
writing to be bound by the provisions hereof, and whenever such individual shall
have executed such writing and any conditions to such appointment or election
shall have been satisfied, such individual shall become a Trustee and the Trust
Property shall vest in the new Trustee, together with the continuing Trustees,
without any further act or conveyance.
(h) Effect of Death Resignation etc. No vacancy, whether resulting from the
death, resignation, retirement, removal or incapacity of any Trustee, an
increase in the number of Trustees or otherwise, shall operate to annul or
terminate the Trust hereunder or to revoke or terminate any existing agency or
contract created or entered into pursuant to the terms of this Declaration of
Trust. Until such vacancy is filled as provided in this Section 4.1, the
Trustees in office (if any), regardless of their number, shall have all the
powers granted to the Trustees and shall discharge all the duties imposed upon
the Trustees by this Declaration. A written instrument certifying the existence
of such
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vacancy signed by a Majority of the Trustees shall be conclusive evidence
of the existence of such vacancy.
(i) Conveyance. In the event of the resignation or removal of a
Trustee or his otherwise ceasing to be a Trustee, such former Trustee or
his legal representative shall, upon request of the continuing Trustees,
execute and deliver such documents as may be required for the purpose of
consummating or evidencing the conveyance to the Trust or the remaining
Trustees of any Trust Property held in such former Trustee's name, but the
execution and delivery of such documents shall not be requisite to the
vesting of title to the Trust Property in the remaining Trustees, as
provided in subsection (g) of this Section 4.1 and in Section 4.13 hereof.
(j) No Accounting. Except to the extent required by the 1940 Act
or under circumstances which would justify his removal for cause, no Person
ceasing to be a Trustee (nor the estate of any such Person) shall be
required to make an accounting to the Shareholders or remaining Trustees
upon such cessation.
(k) Filings. Whenever there shall be a change in the composition
of the Trustees, the Trust shall cause to be filed in the office of the
Secretary of The Commonwealth of Massachusetts and in each other place
where the Trust is required to file amendments to this Declaration (1) a
copy of the instrument by which (in the case of the appointment of a new
Trustee, or the election of an individual who was not theretofore a
Trustee) the new Trustee accepted his appointment or election and agreed to
be bound by the terms of this Declaration, or by which (in the case of a
resignation) the former Trustee resigned as such, together in either case
with a certificate of one of the other Trustees as to the fact of such
election, appointment or resignation, or (ii) in the case of the removal or
death of a Trustee, a certificate of one of the Trustees as to the fact of
such removal or death.
SECTION 4.2. Trustees Meetings Participation by Telephone etc. The Trustees
shall hold at least one meeting annually and other regular and special meetings
may be held from time to time, in each case, upon the call of such officers as
may be thereunto authorized by the Bylaws or vote of the Trustees, or by any two
(2) Trustees, or pursuant to a vote of the Trustees adopted at a duly
constituted meeting of the Trustees, and upon such notice as shall be provided
in the Bylaws. The Trustees may act with or without a meeting, and a written
consent to any matter, signed by a Majority of the Trustees, shall be equivalent
to action duly taken at a meeting of the Trustees, duly called and held. Except
as otherwise provided by the 1940 Act or other applicable law, or by this
Declaration of Trust or the Bylaws, any action to be taken by the Trustees may
be taken by a Majority of the Trustees present at a meeting of Trustees (a
quorum, consisting of at least a majority of the Trustees, being present),
within or without Massachusetts. If authorized by the Bylaws, all or any one or
more Trustees may participate in a meeting of the Trustees or any Committee
thereof by means of conference telephone or similar means of communication by
means of which all Persons participating in the meeting can hear each other, and
participation in a meeting pursuant to such means of communication shall
constitute presence in person at such meeting. The minutes of any meeting thus
held shall be prepared in the same manner as a meeting at which all participants
were present in person.
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SECTION 4.3. Committees Delegation. The Trustees shall have power,
consistent with their ultimate responsibility to supervise the affairs of the
Trust, to delegate from time to time to an Executive Committee, and to one or
more other Committees, or to any single Trustee, or to any other Person, the
doing of such things and the execution of such deeds or other instruments,
either in the name of the Trust or the names of the Trustees or as their
attorney or attorneys in fact, or otherwise as the Trustees may from time to
time deem expedient, and any agreement, deed, mortgage, lease or other
instrument or writing executed by the Trustee or Trustees or other Person to
whom such delegation was made shall be valid and binding upon the Trustees and
upon the Trust.
SECTION 4.4. Officers. The Trustees shall elect such officers or agents,
who shall have such powers, duties and responsibilities as the Trustees may deem
to be advisable, and as they shall specify by resolution or in the Bylaws.
Except as may be provided in the Bylaws, any officer elected by the Trustees may
be removed at any time with or without cause. Any two (2) or more offices may be
held by the same individual.
SECTION 4.5. Compensation of Trustees and Officers. The Trustees shall fix
the compensation of all officers and Trustees. Without limiting the generality
of any of the provisions hereof, the Trustees shall be entitled to receive
reasonable compensation for their general services as such, and to fix the
amount of such compensation, and to pay themselves or any one or more of
themselves such compensation for special services, including legal, accounting,
or other professional services, as they in good faith may deem reasonable. No
Trustee or officer resigning and (except where a right to receive compensation
for a definite future period shall be expressly provided in a written agreement
with the Trust, duly approved by the Trustees) no Trustee or officer removed
shall have any right to any compensation as such Trustee or officer for any
period following his resignation or removal, or any right to damages on account
of his removal, whether his compensation be by the month, by the year or
otherwise.
SECTION 4.6. Ownership of Shares and Securities of the Trust. Any Trustee,
and any officer, employee or agent of the Trust, and any organization in which
any such Person is interested, may acquire, own, hold and dispose of Shares of
any Series and other Securities of the Trust for his or its individual account,
and may exercise all rights of a holder of such Shares or Securities to the same
extent and in the same manner as if such Person were not such a Trustee,
officer, employee or agent of the Trust; subject, in the case of Trustees and
officers, to the same limitations as directors or officers (as the case may be)
of a Massachusetts business corporation; and the Trust may issue and sell or
cause to be issued and sold and may purchase any such Shares or other Securities
from any such Person or any such organization, subject only to the general
limitations, restrictions or other provisions applicable to the sale or purchase
of Shares of such Series or other Securities of the Trust generally.
SECTION 4.7. Right of Trustees and Officers to Own Property or to Engage in
Business Authority of Trustees to Permit Others to Do Likewise. The Trustees, in
their capacity as Trustees, and (unless otherwise specifically directed by vote
of the Trustees) the officers of the Trust in their capacity as such, shall not
be required to devote their entire time to the business and affairs of the
Trust. Except as
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otherwise specifically provided by vote of the Trustees, or by agreement in any
particular case, any Trustee or officer of the Trust may acquire, own, hold and
dispose of, for his own individual account, any property, and acquire, own,
hold, carry on and dispose of, for his own individual account, any business
entity or business activity, whether similar or dissimilar to any property or
business entity or business activity invested in or carried on by the Trust, and
without first offering the same as an investment opportunity to the Trust, and
may exercise all rights in respect thereof as if he were not a Trustee or
officer of the Trust. The Trustees shall also have power, generally or in
specific cases, to permit employees or agents of the Trust to have the same
rights (or lesser rights) to acquire, hold, own and dispose of property and
businesses, to carry on businesses, and to accept investment opportunities
without offering them to the Trust, as the Trustees have by virtue of this
Section 4.7.
SECTION 4.8. Reliance on Experts. The Trustees and officers may consult
with counsel, engineers, brokers, appraisers, auctioneers, accountants,
investment bankers, securities analysts or other Persons (any of which may be a
firm in which one or more of the Trustees or officers is or are members or
otherwise interested) whose profession gives authority to a statement made by
them on the subject in question, and who are reasonably deemed by the Trustees
or officers in question to be competent, and the advice or opinion of such
Persons shall be full and complete personal protection to all of the Trustees
and officers in respect of any action taken or suffered by them in good faith
and in reliance on or in accordance with such advice or opinion. In discharging
their duties, Trustees and officers, when acting in good faith, may rely upon
financial statements of the Trust represented to them to be correct by any
officer of the Trust having charge of its books of account, or stated in a
written report by an independent certified public accountant fairly to present
the financial position of the Trust. The Trustees and officers may rely, and
shall be personally protected in acting, upon any instrument or other document
believed by them to be genuine.
SECTION 4.9. Surety Bond. No Trustee, officer, employee or agent of the
Trust shall, as such, be obligated to give any bond or surety or other security
for the performance of any of his duties, unless required by applicable law or
regulation, or unless the Trustees shall otherwise determine in any particular
case.
SECTION 4.10. Apparent Authority of Trustees and Officers. No purchaser,
lender, transfer agent or other Person dealing with the Trustees or any officer
of the Trust shall be bound to make any inquiry concerning the validity of any
transaction purporting to be made by the Trustees or by such officer, or to make
inquiry concerning or be liable for the application of money or property paid,
loaned or delivered to or on the order of the Trustees or of such officer.
SECTION 4.11. Other Relationships Not Prohibited. The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust
is a shareholder, director, officer, partner, trustee, employee, manager,
adviser, principal underwriter or distributor or agent of or for any
Contracting Party (as defined in Section 5.2 hereof), or of or for any
parent or affiliate of any Contracting Party, or that the Contracting Party
or any parent or affiliate
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thereof is a Shareholder or has an interest in the Trust or any Fund, or
that
(ii) any Contracting Party may have a contract providing for
the rendering of any similar services to one or more other corporations,
trusts, associations, partnerships , limited partnerships or other
organizations, or have other business or interests,
shall not affect the validity of any contract for the performance and assumption
of services, duties and responsibilities to, for or of the Trust and/or the
Trustees or disqualify any Shareholder, Trustee or officer of the Trust from
voting upon or executing the same or create any liability or accountability to
the Trust or to the holders of Shares of any Series; provided that, in the case
of any relationship or interest referred to in the preceding clause (i) on the
part of any Trustee or officer of the Trust, either (x) the material facts as to
such relationship or interest have been disclosed to or are known by the
Trustees not having any such relationship or interest and the contract involved
is approved in good faith by a majority of such Trustees not having any such
relationship or interest (even though such unrelated or disinterested Trustees
are less than a quorum of all of the Trustees), (y) the material facts as to
such relationship or interest and as to the contract have been disclosed to or
are known by the Shareholders entitled to vote thereon and the contract involved
is specifically approved in good faith by vote of the Shareholders, or (z) the
specific contract involved is fair to the Trust as of the time it is authorized,
approved or ratified by the Trustees or by the Shareholders.
SECTION 4.12. Payment of Trust Expenses. The Trustees are authorized to pay
or to cause to be paid out of the principal or income of the Trust, or partly
out of principal and partly out of income, and according to any allocation to
particular Funds made by them pursuant to Section 6.2(b) hereof, all expenses,
fees, charges, taxes and liabilities incurred or arising in connection with the
business and affairs of the Trust or in connection with the management thereof,
including, but not limited to, the Trustees' compensation and such expenses and
charges for the services of the Trust's officers, employees, Investment Manager,
Administrator, Distributor, Principal Underwriter, auditor, counsel, Custodian,
Transfer Agent, Dividend Disbursing Agent, Accounting Agent, Shareholder
Servicing Agent, and such other agents, consultants, and independent contractors
and such other expenses and charges as the Trustees may deem necessary or proper
to incur.
SECTION 4.13. Ownership of the Trust Property. Legal title to all the Trust
Property shall be vested in the Trustees as joint tenants, except that the
Trustees shall have power to cause legal title to any Trust Property to be held
by or in the name of one or more of the Trustees, or in the name of the Trust,
or of any particular Fund, or in the name of any other Person as nominee, on
such terms as the Trustees may determine; provided, that the interest of the
Trust and of the respective Fund therein is appropriately protected. The right,
title and interest of the Trustees in the Trust Property shall vest
automatically in each Person who may hereafter become a Trustee. Upon the
termination of the term of office of a Trustee as provided in Section 4.1(c),
(d) or (e) hereof, such Trustee shall automatically cease to have any right,
title or interest in any of the Trust Property, and the right, title and
interest of such Trustee in the Trust Property
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shall vest automatically in the remaining Trustees. Such vesting and cessation
of title shall be effective whether or not conveyancing documents have been
executed and delivered pursuant to Section 4.1(i) hereof.
ARTICLE V
DELEGATION OF MANAGERIAL RESPONSIBILITIES
SECTION 5.1. Appointment Action by Less than All Trustees. The Trustees
shall be responsible for the general operating policy of the Trust and for the
general supervision of the business of the Trust conducted by officers, agents,
employees or advisers of the Trust or by independent contractors, but the
Trustees shall not be required personally to conduct all the business of the
Trust and, consistent with their ultimate responsibility as stated herein, the
Trustees may appoint, employ or contract with one or more officers, employees
and agents to conduct, manage and/or supervise the operations of the Trust, and
may grant or delegate such authority to such officers, employees and/or agents
as the Trustees may, in their sole discretion, deem to be necessary or
desirable, without regard to whether such authority is normally granted or
delegated by trustees.
SECTION 5.2. Certain Contracts. Subject to compliance with the provisions
of the 1940 Act, but notwithstanding any limitations of present and future law
or custom in regard to delegation of powers by trustees generally, the Trustees
may, at any time and from time to time in their discretion and without limiting
the generality of their powers and authority otherwise set forth herein, enter
into one or more contracts with any one or more corporations, trusts,
associations, partnerships, limited partnerships or other types of
organizations, or individuals ("Contracting Party") to provide for the
performance and assumption of some or all of the following services, duties, and
responsibilities to, for or on behalf of the Trust and/or any Fund, and/or the
Trustees, and to provide for the performance and assumption of such other
services, duties and responsibilities in addition to those set forth below, as
the Trustees may deem appropriate:
(a) Advisory. An investment advisory or management agreement whereby
the Investment Manager shall undertake to furnish the Trust such
management, investment advisory or supervisory, administrative, accounting,
legal, statistical and research facilities and services, and such other
facilities and services, if any, as the Trustees shall from time to time
consider desirable, all upon such terms and conditions as the Trustees may
in their discretion determine to be not inconsistent with this Declaration,
the applicable provisions of the 1940 Act or any applicable provisions of
the Bylaws. Any such advisory or management agreement and any amendment
thereto shall be subject to approval by a Majority Shareholder Vote at a
meeting of the Shareholders of the Trust. Notwithstanding any provisions of
this Declaration, the Trustees may authorize the investment Manager
(subject to such general or specific instructions as the Trustees may from
time to time adopt) to effect purchases, sales, loans or exchanges of
portfolio securities of the Trust on behalf of the Trustees or may
authorize any officer or employee of the Trust or any Trustee to effect
such purchases, sales, loans or exchanges pursuant to recommendations of
the Investment Manager (and all without further action by the
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Trustees). Any such purchases, sales, loans and exchanges shall be deemed
to have been authorized by all of the Trustees. The Trustees may, in their
sole discretion, call a meeting of Shareholders in order to submit to a
vote of Shareholders at such meeting the approval of continuance of any
such investment advisory or management agreement. If the Shareholders of
any Fund should fail to approve any such investment advisory or management
agreement, the Investment Manager may nonetheless serve as Investment
Manager with respect to any other Fund whose Shareholders shall have
approved such contract.
(b) Administration. An agreement whereby the agent, subject to the
general supervision of the Trustees and in conformity with any policies of
the Trustees with respect to the operations of the Trust and each Fund,
will supervise all or any part of the operations of the Trust and each
Fund, and will provide all or any part of the administrative and clerical
personnel, office space and office equipment and services appropriate for
the efficient administration and operations of the Trust and each Fund (any
such agent being herein referred to as an "Administrator").
(c) Distribution. An agreement providing for the sale of Shares of
any one or more Series to net the Trust not less than the net asset value
per Share (as described in Section 6.2(h) hereof) and pursuant to which the
Trust may appoint the other party to such agreement as its principal
underwriter or sales agent for the distribution of such Shares. The
agreement shall contain such terms and conditions as the Trustees may in
their discretion determine to be not inconsistent with this Declaration,
the applicable provisions of the 1940 Act and any applicable provisions of
the Bylaws (any such agent being herein referred to as a "Distributor" or a
"Principal Underwriter," as the case may be).
(d) Custodian. The appointment of a bank or trust company having an
aggregate capital, surplus and undivided profits (as shown in its last
published report) of at least two million dollars ($2,000,000) as custodian
of the Securities and cash of the Trust and of each Fund and of the
accounting records in connection therewith (any such agent being herein
referred to as a "Custodian").
(e) Transfer and Dividend Disbursing Agency. An agreement with an
agent to maintain records of the ownership of outstanding Shares, the
issuance and redemption and the transfer thereof (any such agent being
herein referred to as a "Transfer Agent"), and to disburse any dividends
declared by the Trustees and in accordance with the policies of the
Trustees and/or the instructions of any particular Shareholder to reinvest
any such dividends (any such agent being herein referred to as a "Dividend
Disbursing Agent")
(f) Shareholder Servicing. An agreement with an agent to provide
service with respect to the relationship of the Trust and its Shareholders,
records with respect to Shareholders and their Shares, and similar matters
(any such agent being herein referred to as a "Shareholder Servicing
Agent")
(g) Accounting. An agreement with an agent to handle all or any part
of the accounting responsibilities, whether with respect
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to the Trust's properties, Shareholders or otherwise (any such agent being
herein referred to as an "Accounting Agent")
The same Person may be the Contracting Party for some or all of the
services, duties and responsibilities to, for and of the Trust and/or the
Trustees, and the contracts with respect thereto may contain such terms
interpretive of or in addition to the delineation of the services, duties and
responsibilities provided for, including provisions that are not inconsistent
with the 1940 Act relating to the standard of duty of and the rights to
indemnification of the Contracting Party and others, as the Trustees may
determine. Nothing herein shall preclude, prevent or limit the Trust or a
Contracting Party from entering into subcontractual arrangements relative to any
of the matters referred to in subsections (a) through (g) of this Section 5.2.
ARTICLE VI
FUNDS AND SHARES
3/6/95
SECTION 6.1. Description of Funds and Shares.
6/18/99
(a) Shares Funds Series and Classes of Shares. The beneficial
interest in the Trust shall be divided into Shares having a nominal or par
value of one cent ($.Ol) per Share, of which an unlimited number may be
used. There have been established and designated by this Declaration, as
originally executed, and by Certificates of Designation dated November 25,
1991, (i) six (6) separate, distinct and independent Funds, designated the
AXP Insured Tax-Exempt Fund, the AXP Minnesota Tax-Exempt Fund, the AXP New
York Tax-Exempt Fund, the AXP Massachusetts Tax-Exempt Fund, the AXP
Michigan Tax-Exempt Fund, and the AXP Ohio Tax-Exempt Fund into which the
assets of the Trust are divided (the "Existing Funds") and (ii) six (6)
separate and distinct Series of Shares, designated the AXP Insured
Tax-Exempt Series, the AXP Minnesota Tax-Exempt Series, the AXP New York
Tax-Exempt Series, the AXP Massachusetts Tax-Exempt Series, the AXP
Michigan Tax-Exempt Series, and the AXP Ohio Tax-Exempt Series,
respectively, each representing the beneficial interest in the Fund of the
same name (the "Existing Series of Shares"). The Trustees shall have the
power and authority, without any requirement of Shareholder approval, from
time to time to establish and designate one or more separate, distinct and
independent Funds, in addition to the Funds established and designated by
Section 6.2 hereof, into which the assets of the Trust shall be divided,
and to authorize a separate Series of Shares for each such additional Fund
(each of which Series shall represent interests only in the Fund with
respect to which such Series was authorized), and to authorize two or more
separate Classes of Shares of any such Series, as they deem necessary or
desirable. All Shares shall be of one class, provided that the Trustees
shall have the power to classify or reclassify any unissued Shares of any
Series (including any Shares of the Funds established and designated by
Section 6.2 hereof) into any number of additional Classes of such Series by
from time to time setting or changing in one or more respects provisions
applicable to such Class or Classes relating to sales changes, any rights
of redemption and the price, terms and manner of redemption, special and
relative rights as to dividends and other distributions and on liquidation,
sinking or purchase fund provisions, conversion rights, and (subject to
Article 7 hereof)
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conditions under which the shareholders of the several Classes shall have
separate voting rights or not voting rights. Except as otherwise provided
herein or in any other controlling document as to a particular Fund, or in
the Certificate of Designation therefor, the Trustees shall have all the
rights and powers, and be subject to all the duties and obligations, with
respect to each such Fund and the assets and affairs thereof as they have
under this Declaration with respect to the Trust and the Trust Property in
general.
(b) Establishment etc. of Funds Authorization of Shares. In order to
establish and designate any Fund in addition to the Existing Fund and to
authorize the Shares thereof, a Majority of the Trustees (or an officer of
the Trust pursuant to the vote of a Majority of the Trustees) shall execute
an instrument setting forth such establishment and designation and the
relative rights and preferences of the Shares of the Series representing
interests in such Fund and the manner in which the same may be amended (a
"Certificate of Designation") which may provide that the number of Shares
of such Series which may be issued is unlimited, or may limit the number
issuable. At any time that there are outstanding no Shares of any
particular Series or Class previously established and designated, including
any Series or Class representing interests in the Existing Fund, the
Trustees may be an instrument executed by a Majority of the Trustees (or by
an officer of the Trust pursuant to the vote of a Majority of the Trustees)
terminate such Series or Class and the establishment and designation
thereof and the authorization of its Shares (a "Certificate of Termination"
Each Certificate of Designation, Certificate of Termination and any
instrument amending a Certificate of Designation shall have the status of
an amendment to this Declaration of Trust, and shall be filed and become
effective as provided in Section 9.4 hereof.
(c) Character of Separate Funds and Shares Thereof. Each Fund
established hereunder shall be a separate component of the assets of the
Trust, and the holders of Shares of the Series representing the beneficial
interest in the assets of that Fund shall be considered Shareholders of
such Fund, but such Shareholders shall also be considered Shareholders of
the Trust for purposes of receiving reports and notices and, except as
otherwise provided herein or in the Certificate of Designation of a
particular Fund as to such Fund, or as required by the 1940 Act or other
applicable law, the right to vote, all without distinction by Series.
(d) Consideration for Shares. The Trustees may issue Shares of any
Series for such consideration (which may include property subject to, or
acquired in connection with the assumption of, liabilities) and on such
terms as they may determine to 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 nonassessable (but may be subject to mandatory contribution
back to the Trust as provided in Section 6.2(h) hereof). The Trustees may
classify or reclassify any unissued Shares, or any Shares of any Series
previously issued and reacquired by the Trust, into Shares of one or more
other Funds that may be established and designated from time to time.
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SECTION 6.2. Establishment and Designation of Certain Funds General
Provisions for All Funds. Without limiting the authority of the Trustees set
forth in Section 6.1(a) hereof, the Shares of the Existing Series shall be
divided into three separate Classes, designated Class A, Class B and Class Y,
which shall represent interests only in the Existing Fund to which they pertain.
Prior to issuing shares of any Class of a Series other than Class A shares, the
Trustees shall have power to provide, by resolution duly adopted by a Majority
of the Trustees, that the Shares of each such Class shall have different rights
and obligations, which may include without limitation differences as to sales
loads (or no loads), contingent deferred sales charges, transfer agency fees,
Shareholder servicing fees, distribution services fees and other charges and
expenses to which such Class is subject, rights of redemption and the prices,
terms and manners of redemption, special or relative rights as to dividends and
other distributions and on liquidation, any sinking or purchase fund provisions,
differing conversion or exchange rights and (subject to Article 7 hereof) the
conditions under which the holders of Shares of such Class shall have separate
voting rights or no voting rights. The differing rights and obligations of each
Class of Shares shall be set forth in the Prospectus under which the Shares of
such Class are sold, and the Trustees may not change such rights and obligations
in a manner adverse to the holders of outstanding Shares of such class, or grant
any preferences over such Class to the holders of shares of any other Class
without the affirmative vote or consent of the holders of "a majority of the
outstanding voting securities" of such Class, as the quoted phrase is used in
the 1940 Act. An unlimited number of Shares of each such Class may be issued.
All Shares of the Existing Series outstanding on the date on which the
amendments of this Declaration first providing for specific Classes of Shares
become effective shall be Class A Shares of such Series. Subject to the power of
the Trustees to classify or reclassify any unissued Shares of a Series pursuant
to Section 6.2(a) above, the shares of the Existing Series, and the 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 Fund at the time of establishing and designating the same) have the
following relative rights and preferences:
3/6/95
(a) Assets Belonging to Funds. Any portion of the Trust Property
allocated to a particular Fund, and all consideration received by the Trust
for the issue or sale of Shares of such Fund, together with all assets in
which such consideration is invested or reinvested, all interest,
dividends, income, earnings, profits and gains there from, and proceeds
thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall be
held by the Trustees in trust for the benefit of the holders of Shares of
that Fund and shall irrevocably belong to that Fund for all purposes, and
shall be so recorded upon the books of account of the Trust, and the
Shareholders of such Fund shall not have, and shall be conclusively deemed
to have waived, any claims to the assets of any Fund of which they are not
Shareholders. Such consideration, assets, interest, dividends, income,
earnings, profits, gains and proceeds, together with any General Items
allocated to that Fund as provided in the following sentence, are herein
referred to collectively as "Fund Assets" of such Fund, and as assets
"belonging to" that Fund. If the Trust shall have or realize any
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assets, interest, dividends, income, earnings, profits, gains or proceeds
which are not readily identifiable as belonging to any particular Fund
(collectively, "General Items") the Trustees shall allocate such General
Items to and among any one or more of the Funds of the Trust in such manner
and on such basis as they, in their sole discretion, deem fair and
equitable; and any General Items so allocated to a particular Fund shall
belong to and be part of the Fund Assets of that Fund. Each such allocation
by the Trustees shall be conclusive and binding upon the Shareholders of
all Funds for all purposes.
(b) Liabilities of Funds. The assets belonging to each Fund shall be
charged with the liabilities incurred by or arising in respect of that
Fund, and all expenses, costs, charges and reserves attributable to that
Fund, and any general liabilities, expenses, costs, charges or reserves of
the Trust which are not readily identifiable as pertaining to any
particular Fund shall be allocated and charged by the Trustees to and among
any one or more of the Funds of the Trust 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 so allocated and so
charged to a particular Fund are herein referred to as "liabilities of"
that Fund. Each allocation of liabilities, expenses, costs, charges and
reserves by the Trustees shall be conclusive and binding upon the
Shareholders of all Funds for all purposes. The creditors of a particular
Fund may look only to the assets of that Fund to satisfy such creditors'
claims, and the creditors of a particular Class of a Fund may look only to
the share of that Class in the assets of the Fund of which it is a part to
satisfy their claims.
(c) Dividends. Dividends and distributions of Shares of a particular
Fund 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 Fund, from such of the income, accrued or
realized, and capital gains, realized or unrealized, and out of the assets
belonging to such Fund, as the Trustees may determine, after providing for
actual and accrued liabilities of that Fund. Dividends and distributions on
Shares of a Fund without separate Classes of Shares shall be distributed
pro rata to the holders of Shares of that Fund in proportion to the number
of such Shares held by such holders at the date and time of record
established for the payment of such dividends or distributions. Dividends
and distributions on the Shares of a Fund having separate Classes of Shares
shall be in such amount as may be declared from time to time by the
Trustees, and such dividends and distributions may vary as between such
Classes to reflect differing allocations among such Classes of the
liabilities, expenses, costs, charges and reserve of such Fund, and any
resultant differences between the net asset value of such several Classes,
to such extent and for such purposes as the Trustees may deem appropriate,
but dividends and distributions on the shares of a particular Class shall
be distributed pro rata to the Shareholders of that Class in proportion to
the number of such Shares held by such holders at the date and time of
record established for the payment of such dividends and distributions.
Notwithstanding the last two preceding sentences, the Trustees may
determine, in connection with
-24-
any dividend or distribution program or procedure, that no dividend or
distribution shall be payable on newly-purchased Shares as to which the
purchase order and/or payment have not been received by the time or times
established by the Trustees under such program or procedure, or that
dividends or distributions shall be payable on Shares which have been
tendered by the holder thereof for redemption or repurchase, but the
redemption or repurchase proceeds of which have not yet been paid to such
Shareholder. Dividends and distributions on the Shares of a Fund may be
made in cash or Shares of any Class of that Fund 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 (q) of this
Section 6.2 but without any load or sales charge.
(d) Liquidation. In the event of the liquidation or dissolution of
the Trust, the Shareholders of each Fund of which Shares are outstanding
shall be entitled to receive, when and as declared by the Trustees, the
excess of the Fund Assets over the liabilities of such Fund. The assets so
distributable to the Shareholders of any Fund without separate Classes of
Shares shall be distributed among such Shareholders in proportion to the
number of Shares of that Fund held by them and recorded on the books of the
Trust. The assets so distributable to the Shareholders of any Fund having
separate Classes of Shares shall be allocated among such Classes in
proportion to the respective aggregate net asset value of the outstanding
Shares thereof, and shall be distributed to the Shareholders of each such
Class in proportion to the number of Shares of that Class held by them and
recorded on the books of the Trust. The liquidation of any Fund, or any
Class of any Fund, may be authorized by vote of a Majority of the Trustees,
subject to the affirmative vote of "a majority of the outstanding voting
securities" of that Fund or Class, as the quoted phrase is defined in the
1940 Act, determined in accordance with clause (iii) of the definition of
"Majority Shareholder Vote" in Section 1.4 hereof.
(e) Redemption by Shareholder. Each holder of Shares of a particular
Series or Class shall have the right at such times as may be permitted by
the Trust, but no less frequently than once each week, to require the Trust
to redeem all or any part of such Shares at a redemption price equal to the
net asset value per Share of that Series or Class next determined in
accordance with subsection (q) of this Section 6.2 after the Shares are
properly tendered for redemption; provided, that the Trustees may from time
to time, in their discretion, determine and impose a fee for such
redemption, and the proceeds of the redemption of Shares (including a
fractional Share) of any Series or Class shall be reduced by the amount of
any applicable contingent deferred sales charge payable on such redemption
to the distributor of Shares of each Series or Class pursuant to the terms
of the initial issuance of the Shares of such Series or Class (to the
extent consistent with the 1940 Act or regulations or exemptions
thereunder) and the Trust shall promptly pay to such distributor the amount
of such deferred sales charge. The redemption price of Shares redeemed
under this subsection (e) shall be paid in cash; provided, however, that if
the Trustees determine, which determination shall be conclusive,
-25-
that conditions exist with respect to any Fund, or one or more Classes of
any Fund, which make payment wholly in cash unwise or undesirable, the
Trust may make payment wholly or partly in Securities or other assets
belonging to such Fund, or to the Fund of which such Class or Classes are a
part, at the value of such Securities or assets used in such determination
of net asset value. Notwithstanding the foregoing, the Trust may postpone
payment of the redemption price and may suspend the right of the holders of
Shares of any Series or Class to require the Trust to redeem Shares of that
Series or Class during any period or at any time when and to the extent
permissible under the 1940 Act.
(f) Redemption at the Option of the Trust. Each Share of any Fund
shall be subject to redemption at the option of the Trust at the redemption
price which would be applicable if such Share were then being redeemed by
the Shareholder pursuant to subsection (e) of this Section 6.2: (i) at any
time, if the Trustees determine in their sole discretion that failure to so
redeem may have materially adverse consequences to the holder of the Shares
of the Trust or of any Fund, or (ii) upon such other conditions with
respect to maintenance of Shareholder accounts of a minimum amount as may
from time to time be determined by the Trustees and set forth in the
then-current Prospectus of such Fund. Upon such redemption the holders of
the Shares so redeemed shall have no further right with respect thereto
other than to receive payment of such redemption price.
(g) Net Asset Value. Subject to the provisions of the two sentences
immediately following, the net asset value per Share of any Fund without
Classes, or of any Class of a Fund having separate Classes of Shares, at
any time shall be the quotient obtained by dividing the value of the net
assets of such Fund or the share of such Class in such assets, as the case
may be, at such time (being the current value of the assets belonging to
such Fund, or the share of such Class therein, less the then-existing
liabilities of such Fund, or the share of such Class in such liabilities)
by the total number of Shares of that Fund or Class then outstanding, all
determined in accordance with the methods and procedures, including without
limitation those with respect to rounding, established by the Trustees from
time to time. The aggregate net asset value of the several Classes of a
Fund having separate Classes of Shares shall be separately computed, and
may vary from one another. The Trustees shall establish procedures for the
allocation of investment income or capital gains and expenses and
liabilities of a Fund having separate Classes of Shares among the several
Classes of such Fund, in order to reflect the varying net asset values of,
and the liabilities and expenses attributable to, such Classes. The
Trustees may determine to maintain the net asset value per Share of any
Fund at a designated constant dollar amount and in connection therewith may
adopt procedures not inconsistent with the 1940 Act for the continuing
declaration of income attributable to that Fund as dividends payable in
additional shares of the Fund at the designated constant dollar amount and
for the handling of any losses attributable to that Fund. Such procedures
may provide that in the event of any loss each Shareholder shall be deemed
to have contributed to the shares of beneficial interest account of that
Fund such Shareholder's pro rata portion of the total number of Shares
required to be canceled in order to permit the net asset value per Share of
that Fund to be
-26-
maintained, after reflecting such loss, at the designated constant dollar
amount. Each Shareholder of the Trust shall be deemed to have expressly
agreed, by investing in any Fund with respect to which the Trustees shall
have adopted any such procedure, to make the contribution referred to in
the preceding sentence in the event of any such loss.
(h) Transfer. All Shares of the Trust shall be transferable, but
transfers of Shares of a particular Fund will be recorded on the Share
transfer records of the Trust applicable to that Fund only at such times as
Shareholders shall have the right to require the Trust to redeem Shares of
that Fund and at such other times as may be permitted by the Trustees.
(i) Equality. All shares of each Fund without Classes shall
represent an equal proportionate interest in the assets belonging to that
Fund, subject to the liabilities of that Fund, and each Share of any such
Fund shall be equal to each other Share thereof. All Shares of each Class
of Shares of any Fund having separate Classes of Shares shall represent an
equal proportionate interest in the share of such Class in the assets
belonging to that Fund, subject to a like share of the liabilities of such
Fund, adjusted for any liabilities specifically allocable to that Class,
and each Share of any such Class shall be equal to each other Share
thereof; but the interests represented by the Shares of the different
Classes of a Fund having separate Classes of Shares shall reflect any
distinctions among the several Classes of such Fund existing under this
Section 6.2 or Section 7.1 hereof, or under the Certificate of Designation
for such Fund. The Trustees may from time to time divide or combine the
Shares of any Fund, or any Class of any Fund, into a greater or lesser
number of Shares of that Fund or Class without thereby changing the
proportionate beneficial interest in the assets belonging to that Fund or
in any way affecting the rights of the holders of Shares of any other Fund
or Class.
(j) Rights of Fractional Shares. Any fractional Share of any Series
or Class of Shares shall carry proportionately all the rights and
obligations of a whole Share of that Series or Class, including rights and
obligations with respect to voting, receipt of dividends and distributions,
redemption of Shares, and liquidation of the Trust or of the Series or
Class to which such Shares pertain.
(k) Conversion and Exchange Rights. (i) Subject to compliance with
the requirements of the 1940 Act, the Trustees shall have the authority to
provide (A) that holder of Shares of any Series shall have the right to
exchange such Shares for Shares of any other investment company registered
as such under the 9140 Act and designated for that purpose (an "Eligible
Investment Company" in the Trust's Prospectus for the Shares being
exchanged, (B) that holders of any Class of Shares of a Series shall have
the right to convert such Shares ("Converted Shares" into, or exchange such
Shares for, Shares of one or more other Classes of such Series ("Resulting
Shares") and (C) that Shares of any Class of a Series shall be
automatically converted into Shares of another Class of such Series, in
each case in accordance with such requirements and procedures as the
Trustees may establish.
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(ii) The number of Resulting Shares of any Class into which a
Converted Share is converted shall be the quotient (including for this
purpose fractions of a Share) obtained by dividing the net asset value per
Converted Share converted by the net asset value per Resulting Share, each
determined as of the close of business on the Conversion Date.
(iii) Converted Shares of any Class will cease to accrue
dividends at the close of business on the Conversion Date thereof, and will
thenceforth no longer be deemed outstanding, and the rights of the holders
thereof (except (A) the right to receive the appropriate number of
Resulting Shares determined as above in this subsection (k) (B) the right
to receive dividends declared on Converted Shares but not paid prior to the
close of business on such Conversion Date, and (C) the right to vote or to
give any consent in respect of Converted Shares that were held as of any
record date occurring before the Conversion Date and theretofore set with
respect to any meeting held or any written consent for which the actual
date is set after the Conversion Date) will cease, and such holder shall
instead have all the rights in respect of the Resulting Shares of a holder
of Shares of the Class issuable upon conversion of such Converted Shares,
effective from and after the close of business on such Conversion Date.
Certificates representing Resulting Shares need not be issued until
certificates representing Converted Shares, if issued, have been received
by the Trust or its agent, duly endorsed for transfer.
(iv) The Trust will appropriately reflect the conversion of
Converted Shares into Resulting Shares on the first periodic statements of
account sent to Shareholders of record affected which provide account
information with respect to a reporting period which includes the
conversion Date.
(l) Conversion of Class B Shares. (i) Without limitation of the
foregoing paragraph (k) each Class B Share of the Existing Series, other
than Shares purchased through the automatic reinvestment of dividends or
distributions with respect to the Class B Shares of such Series, shall be
converted automatically, and without any action or choice on the part of
the holder thereof, into Class A Shares of such Fund on the Conversion Date
thereof, established as provided in the next succeeding sentence. The term
"Conversion Date" as to any Class B Share, shall mean either (i) the date
that is the first Trust business day in the month following the month which
includes the eighth anniversary of the original Purchase Date thereof,
determined as provided, in the next succeeding sentence, or (ii) any such
other date as may be determined by the Trustees and set forth in the
Trust's prospectus with respect to the Class B Shares, as the same may be
amended from time to time; provided that any such other date determined by
the Trustees is one that will occur prior to both (A) the date determined
as provided in clause (i) of this sentence and (B) any other date
theretofore determined by the Trustees pursuant to this clause (ii). The
"Original Purchase Date" of a Class B Share shall be the date on which such
Share was first subscribed and paid for by such holder; provided, that if
such Share was obtained by the holder through an exchange of Shares of
another Eligible Investment Company, the Original Purchase Date shall be
the Original Purchase Date of the Class B Shares of such other Eligible
-28-
Investment Company, or if the Shares of such other Eligible Investment
Company were held as the result of a series of exchanges, the Original
Purchase Date of the Class B Shares of the Eligible Investment Company to
which the holder originally subscribed.
(ii) The Trustees shall establish such procedures and
accounting standards as they deem appropriate in respect of the automatic
conversion of Class B Shares of any Series purchased through the automatic
reinvestment of dividends or distributions relating to the Class B Shares
of such Series.
(iii) Notwithstanding the foregoing provisions of this
subsection (1) the automatic conversion of Class B Shares into Class A
Shares shall be subject to suspension, as follows:
(I) Such conversion shall be suspended at any time that
the Trustees determine (i) that there is not available a
reasonably satisfactory opinion of counsel to the effect that,
under the Internal Revenue Code (x) the assessment of the higher
distribution services fee and transfer agency costs with respect
to the Class B shares does not result in the Trust's dividends or
distributions constituting a "preferential dividend", and (y) the
conversion of the Class B Shares does not constitute a taxable
event, or (ii) any other condition to conversion set forth in the
Trust's prospectus for the Class B Shares, as such prospectus may
be amended from time to time, is not satisfied; and
(II) Such conversion may be suspended at any time that
the Trustees determine such suspension to be appropriate in order
to comply with, or satisfy the requirements of, the 1940 Act,
relating to voting by the holders of the Class B Shares on any
plan with respect to the Class A Shares proposed pursuant to Rule
12b-1 under the 1940 Act, and in connection with, or in lieu of,
any such suspension, the Trustees may provide holders of Class B
Shares with alternative conversion or exchange rights into other
Classes or Series of Shares of the Trust in a manner consistent
with the provision of the 1940 Act giving rise to the possible
suspension of such conversion right.
SECTION 6.3. Ownership of Shares. The ownership of Shares shall be recorded
on the books of the Trust or of a Transfer Agent or similar agent for the Trust,
which books shall be maintained separately for the Shares of each Series that
has been unauthorized. Certificates evidencing the ownership of Shares need not
be issued except as the Trustees may otherwise determine from time to time, and
the Trustees shall have power to call outstanding Share certificates and to
replace them with book entries. The Trustees may make such rules as they
consider appropriate for the issuance of Share certificates, the use of
facsimile signatures, the transfer of Shares and similar matters. The record
books of the Trust as kept by the Trust or any Transfer Agent or similar agent,
as the case may be, shall be conclusive as to who are the Shareholders and as to
the number of Shares of each Fund held from time to time by each such
Shareholder.
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The holders of Shares of each Fund shall upon demand disclose to the
Trustees in writing such information with respect to their direct and indirect
ownership of Shares of such Fund as the Trustees deem necessary to comply with
the provisions of the Internal Revenue Code, or to comply with the requirements
of any other authority.
SECTION 6.4. Investments in the Trust. The Trustees may accept investments
in any Fund of the Trust from such Persons and on such terms and for such
consideration, not inconsistent with the provisions of the 1940 Act, as they
from time to time authorize. The Trustees may authorize any Distributor,
Principal, Underwriter, Custodian, Transfer Agent or other Person to accept
orders for the purchase of Shares that conform to such authorized terms and to
reject any purchase orders for Shares, whether or not conforming to such
authorized terms.
SECTION 6.5. No Preemptive Rights. No Shareholder, by virtue of holding
Shares of any Fund, shall have any preemptive or other right to subscribe to any
additional Shares of that Fund, or to any shares of any other Fund, or any other
Securities issued by the Trust.
SECTION 6.6. Status of Shares. Every Shareholder, by virtue of having
become a Shareholder, shall be held to have expressly assented and agreed to the
terms hereof and to have become a party hereto. Shares shall be deemed to be
personal property, giving only the rights provided herein. Ownership of Shares
shall not entitle the Shareholder to any title in or to the whole or any part of
the Trust Property or right to call for a partition or division of the same or
for an accounting, nor shall the ownership of Shares constitute the Shareholders
partners. The death of a Shareholder during the continuance of the Trust shall
not operate to terminate the Trust or any Fund, nor entitle the representative
of any deceased Shareholder to an accounting or to take any action in court or
elsewhere against the Trust or the Trustees, but only to the rights of said
decedent under this Declaration of Trust.
ARTICLE VII
VOTING RIGHTS
3/6/95
SECTION 7.1. Voting Powers. The Shareholders shall have power to vote only
(i) for the election or removal of Trustees as provided in Sections 4.1(c) and
(e) hereof, (ii) with respect to the approval or termination in accordance with
the 1940 Act of any contract with a Contracting Party as provided in Section 5.2
hereof as to which Shareholder approval is required by the 1940 Act, (iii) with
respect to any termination or and as provided in Sections 9.1 and 9.2 hereof,
(iv) with respect to any amendment of this Declaration of Trust to the extent
and as provided in Section 9.3 hereof, (v) to the same extent as the
stockholders of a Massachusetts business corporation as to whether or not a
court action, proceeding or claim should or should not be brought or maintained
derivatively or as a class action on behalf of the Trust or any Fund, or the
Shareholders of any of them (provided, however, that a Shareholder of a
particular Fund shall not in any event be entitled to maintain a derivative or
class action on behalf of any other Fund or the Shareholders thereof), and (vi)
with respect to such additional matters relating to the Trust as may be required
by the 1940 Act, this Declaration of Trust, the Bylaws or any registration of
the Trust with
-30-
the Commission (or any successor agency) or any State, or as the Trustees may
consider necessary or desirable. If and to the extent that the Trustees shall
determine that such action is required by law or by this Declaration, they shall
cause each matter required or permitted to be voted upon at a meeting or by
written consent of shareholders to be submitted to a separate vote of the
outstanding Shares of each Fund entitled to vote thereon; provided, that (i)
when expressly required by the 1940 Act or by other law, actions of Shareholders
shall be taken by Single Class Voting of all outstanding Shares of each Series
or Class whose holders are entitled to vote thereon; and (ii) when the Trustees
determine that any matter to be submitted to a vote of Shareholders affects only
the rights or interests of Shareholders of one or more but not all Funds or of
one or more but not all Classes of a single Fund (including without limitation
any distribution plan pursuant to Rule l2b-l under the 1940 Act applicable to
any such Fund or Class), then only the Shareholders of the Funds or Classes so
affected shall be entitled to vote thereon. Without limiting the generality of
the foregoing, (U the holders of the Class A Shares and Class B Shares of any
Fund, each voting as a separate class, shall have exclusive voting rights with
respect to provisions of any distribution plan adopted by the Trustees pursuant
to Rule 12b-1 under the 1940 Act (a " Plan") applicable to the Class A Shares of
such Fund; (ii) the holders of the Class A Shares of any Fund shall have no
voting rights with respect to provisions of any Plan applicable solely to the
Class B Shares and/or Class Y Shares of such Fund; (iii) the holders of the
Class B Shares of any Fund shall have (A) exclusive voting rights with respect
to provisions of any Plan applicable solely to the Class B Shares and (B) no
voting rights with respect to provisions of any Plan applicable to Class Y
Shares of such Fund; and (iv) the holders of the Class Y Shares of any Fund
shall have (A) exclusive voting rights with respect to provisions of any Plan
applicable to the Class Y Shares and (B) no voting rights with respect to
provisions of any Plan applicable to Class A Shares or Class B Shares of such
Fund.
SECTION 7.2. Number of Votes and Manner of Voting; Proxies. On each matter
submitted to a vote of the Shareholders, other than the election of any Trustee,
each holder of Shares of any Series shall be entitled to a number of votes equal
to the number of Shares of such Series standing in his name on the books of the
Trust. At all elections of Trustees, each holder of Shares of any Series shall
be entitled to as many votes as shall equal the number of shares of such Series
standing in his name on the books of the Trust multiplied by the number of
Trustees to be elected and may cast all of such votes for a single Trustee or
may distribute them among the number to be voted for, or any two or more of
them. Shares may be voted in person or by proxy. A proxy with respect to Shares
held in the name of two (2) or more Persons shall be valid if executed by any
one of them unless at or prior to exercise of the proxy the Trust receives a
specific written notice to the contrary from any one of them. A proxy purporting
to be executed by or on behalf of a Shareholder shall be deemed valid unless
challenged at or prior to its exercise and the burden of proving invalidity
shall rest on the challenger. Until Shares are issued, the Trustees may exercise
all rights of Shareholders and may take any action required by law, this
Declaration of Trust or the Bylaws to be taken by Shareholders.
SECTION 7.3. Meetings. Meetings of Shareholders may be called by the
Trustees from time to time for the purpose of taking action upon any matter
requiring the vote or authority of the Shareholders as herein provided, or upon
any other matter deemed by the Trustees to be
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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 ten
(10) 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. If a meeting of Shareholders has not been
held during the immediately preceding fifteen (15) months for the purpose of
electing Trustees, a Shareholder or Shareholders holding three percent (3%) or
more of the voting power of all Shares entitled to vote may demand a meeting of
Shareholders for the purpose of electing Trustees by written notice of demand
given to the Trustees. Within thirty (30) days after receipt of such demand, the
Trustees shall call and give notice of a meeting of Shareholders for the purpose
of electing Trustees. If the Trustees shall fail to call such meeting or give
notice thereof, then the Shareholder or Shareholders making the demand may call
and give notice of such meeting at the expense of the Trust. The Trustees shall
promptly call and give notice of a meeting of Shareholders for the purpose of
voting upon removal of any Trustee of the Trust when requested to do so in
writing by Shareholders holding not less than ten percent (10%) of the Shares
then outstanding. If the Trustees shall fail to call or give notice of any
meeting of Shareholders for a period of thirty (30) days after written
application by Shareholders holding at least ten percent (10%) of the Shares
then outstanding requesting that a meeting be called for any other purpose
requiring action by the Shareholders as provided herein or in the Bylaws, then
Shareholders holding at least ten percent (10%) of the Shares then outstanding
may call and give notice of such meeting, and thereupon the meeting shall be
held in the manner provided for herein in case of call thereof by the Trustees.
SECTION 7.4. Record Dates. For the purpose of determining the Shareholders
who are entitled to vote or act at any meeting or any adjournment thereof, or
who are entitled to participate in any dividend or distribution, or for the
purpose of any other action, the Trustees may from time to time close the
transfer books for such period, not exceeding thirty (30) days (except at or in
connection with the termination of the Trust), as the Trustees may determine; or
without closing the transfer books the Trustees may fix a date and time not more
than ninety (90) 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 disposes 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 or record for purposes of such other action.
3/6/95
SECTION 7.5. Quorum and Required Vote. Ten percent (10%) of the outstanding
Shares entitled to vote without regard to Series shall be a quorum for the
transaction of business at a Shareholders' meeting, but any lesser number shall
be sufficient for adjournments. Any adjourned session or sessions may be held
within a reasonable time after the date set for the original meeting without the
necessity of further notice. A Majority Shareholder Vote at a meeting of which a
quorum is present shall decide any question, except when a different vote is
required or
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permitted by any provision of the 1940 Act or other applicable law or by this
Declaration of Trust or the By-Laws, or when the Trustees shall in their
discretion require a larger vote or the vote of a majority or larger fraction of
the Shares of one or more particular Series or Classes.
SECTION 7.6. Action by Written Consent. Subject to the provisions of the
1940 Act and other applicable law, any action taken by Shareholders may be taken
without a meeting if who hold at least ten percent (10%) of the Shares
Shareholders entitled to vote on the matter (or such larger proportion thereof
or of the Shares of any particular Series as shall be required by the 1940 Act
or by any express provision of this Declaration of Trust or the Bylaws or as
shall be permitted by the Trustees) consent to the action in writing and if the
writings in which such consent is given are filed with the records of the
meetings of Shareholders, to the same extent and for the same period as proxies
given in connection with a Shareholders' meeting. Such consent shall be treated
for all purposes as a vote taken at a meeting of Shareholders.
SECTION 7.7. Inspection of Records. The records of the Trust shall be open
to inspection by Shareholders to the same extent as is permitted stockholders of
a Massachusetts business corporation under the Massachusetts Business
Corporation Law.
SECTION 7.8. Additional Provisions. The Bylaws may include further
provisions for Shareholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
ARTICLE VIII
LIMITATION OF LIABILITY INDEMNIFICATION
SECTION 8.1. Trustees Shareholders etc. Not Personally Liable Notice. The
Trustees and officers of the Trust, in incurring any debts, liabilities or
obligations, or in limiting or omitting any other actions for or in connection
with the Trust, are or shall be deemed to be acting as Trustees or officers of
the Trust and not in their own capacities. No Shareholder shall be subject to
any personal liability whatsoever in tort, contract or otherwise to any other
Person or Persons in connection with the assets or the affairs of the Trust or
of any Fund, and subject to Section 8.4 hereof, no Trustee, officer, employee or
agent of the Trust shall be subject to any personal liability whatsoever in
tort, contract, or otherwise, to any other Person or Persons in connection with
the assets or affairs of the Trust or of any Fund, save only that arising from
his own willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his office or the discharge of his
functions. The Trust (or if the matter relates only to a particular Fund, that
Fund) shall be solely liable for any and all debts, claims, demands, judgments,
decrees, liabilities or obligations of any and every kind, against or with
respect to the Trust or such Fund in tort, contract or otherwise in connection
with the assets or the affairs of the Trust or such Fund, and all Persons
dealing with the Trust or any Fund shall be deemed to have agreed that resort
shall be had solely to the Trust Property of the Trust or the Fund Assets of
such Fund, as the case may be, for the payment or performance thereof.
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The Trustees shall use their best efforts to ensure that every note, bond,
contract, instrument, certificate or undertaking made or issued by the Trustees
or by any officers or officer shall give notice that this Declaration of Trust
is on file with the Secretary of The Commonwealth of Massachusetts and shall
recite to the effect that the same was executed or made by or on behalf of the
Trust or by them as Trustees or Trustee or as officers or officer, and not
individually, and that the obligations of such instrument are not binding upon
any of them or the Shareholders individually but are binding only upon the
assets and property of the Trust, or the particular Fund in question, as the
case may be, but the omission thereof shall not operate to bind any Trustees or
Trustee or officers or officer or Shareholders or Shareholder individually, or
to subject the Fund Assets of any Fund to the obligations of any other Fund.
SECTION 8.2. Trustees Good Faith Action Expert Advice No Bond or Surety.
The exercise by the Trustees of their powers and discretions hereunder shall be
binding upon everyone interested. Subject to Section 8.4 hereof, a Trustee shall
be liable for his own willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the office of
Trustee, and for nothing else, and shall not be liable for errors of judgment or
mistakes of fact or law. Subject to the foregoing, (i) the Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing of any officer,
agent, employee, consultant, Investment Manager, Administrator, Distributor or
principal Underwriter, Custodian or Transfer Agent, Dividend Disbursing Agent,
Shareholder Servicing Agent or Accounting Agent of the Trust, nor shall any
Trustee be responsible for the act or mission of any other Trustee; (ii) the
Trustees may take advice of counsel or other experts with respect to the meaning
and operation of this Declaration of Trust and their duties as Trustees, and
shall be under no liability for any act or omission in accordance with such
advice or for failing to follow such advice; and (iii) in discharging their
duties, the Trustees, when acting in good faith, shall be entitled to rely upon
the books of account of the Trust and upon written reports made to the Trustees
by any officer appointed by them, any independent public accountant, and (with
respect to the subject matter of the contract involved) any officer, partner or
responsible employee of a Contracting Party appointed by the Trustees pursuant
to Section 5.2 hereof. The Trustees as such shall not be required to give any
bond or surety or any other security for the performance of their duties.
SECTION 8.3. Indemnification of Shareholders. If any Shareholder (or former
Shareholder) of the Trust shall be charged or held to be personally liable for
any obligation or liability of the Trust solely by reason of being or having
been a Shareholder and not because of such Shareholder's acts or omissions or
for some other reason, the Trust (upon request by the Shareholder) shall assume
the defense against such charge and satisfy any judgment thereon, and the
Shareholder or former Shareholder (or the heirs, executors, administrators or
other legal representatives thereof, or in the case of a corporation or other
entity, its corporate or other general successor) shall be entitled (but solely
out of the assets of the Fund of which such Shareholder or former Shareholder is
or was the holder of Shares) to be held harmless from and indemnified against
all loss and expense arising from such liability.
SECTION 8.4. Indemnification of Trustees Officers etc. Subject to the
limitations set forth hereinafter in this Section 8.4, the Trust shall indemnify
(from the assets of the Fund or Funds to which the
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conduct in question relates) each of its Trustees and officers (including
Persons who serve at the Trust's request as directors, officers or trustees of
another organization in which the Trust has any interest as a shareholder,
creditor or otherwise [hereinafter, together with such Person's heirs,
executors, administrators or personal representative, referred to as a "Covered
Person"] against all liabilities, including but not limited to amounts paid in
satisfaction of judgments, in compromise or as fines and penalties, and
expenses, including reasonable accountants' and counsel fees, incurred by any
Covered Person in connection with the defense or disposition of any action, suit
or other proceeding, whether civil or criminal, before any court or
administrative or legislative body, in which such Covered Person may be or may
have been involved as a party or otherwise or with which such Covered Person may
be or may have been threatened, while in office or thereafter, by reason of
being or having been such a Trustee or officer, director or trustee, except with
respect to any matter as to which it has been determined that such Covered
Person (i) did not act in good faith in the reasonable belief that such Covered
Person's action was in or not opposed to the best interests of the Trust or (ii)
had acted with willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of such Covered Person's office
(either and both of the conduct described in (i) and (ii) being referred to
hereafter as "Disabling Conduct"). A determination that the Covered Person is
entitled to indemnification may be made by (i) a final decision on the merits by
a court or other body before whom the proceeding was brought that the Covered
Person to be indemnified was not liable by reason of Disabling Conduct, (ii)
dismissal of a court action or an administrative proceeding against a Covered
Person for insufficiency of evidence of Disabling Conduct, or (iii) a reasonable
determination, based upon a review of the facts, that the indemnitee was not
liable by reason of Disabling Conduct by (a) a vote of a majority of a quorum of
Trustees who are neither "interested persons" of the Trust as defined in Section
2(a) (19) of the 1940 Act nor parties to the proceeding, or (b) an independent
legal counsel in a written opinion. Expenses, including accountants' and counsel
fees so incurred by any such Covered Person (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines and penalties), may be paid
from time to time by the Fund or Funds to which the conduct in question related
in advance of the final disposition of any such action, suit or proceeding;
provided, that the Covered Person shall have undertaken to repay the amounts so
paid to such Fund or Funds if it is ultimately determined that indemnification
of such expenses is not authorized under this Article VIII and (i) the Covered
Person shall have provided security for such undertaking, (ii) the Trust shall
be insured against losses arising by reason of any lawful advances, or (iii) a
majority of a quorum of the disinterested Trustees, or an independent legal
counsel in a written opinion, shall have determined, based on a review of
readily available facts (as opposed to a full trial-type inquiry), that there is
reason to believe that the Covered Person ultimately will be found entitled to
indemnification.
SECTION 8.5. Compromise Payment. As to any matter disposed of by a
compromise payment by any such Covered Person referred to in Section 8.4 hereof,
pursuant to a consent decree or otherwise, no such indemnification either for
said payment or for any other expenses shall be provided unless such
indemnification shall be approved (i) by a majority of a quorum of the
disinterested Trustees or (ii) by an independent legal counsel in a written
opinion. Approval by the Trustees pursuant to clause (i) or by independent legal
counsel pursuant
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to clause (ii) shall not prevent the recovery from any Covered Person of any
amount paid to such Covered Person in accordance with either of such clauses as
indemnification if such Covered Person is subsequently adjudicated by a court of
competent jurisdiction not to have acted in good faith in the reasonable belief
that such Covered Person's action was in or not opposed to the best interests of
the Trust or to have been liable to the Trust or its Shareholders by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of such Covered Person's office.
SECTION 8.6. Indemnification Not Exclusive etc. The right of
indemnification provided by this Article VIII shall not be exclusive of or
affect any other rights to which any such Covered Person may be entitled. As
used in this Article VIII, a "disinterested" Person is one against whom none of
the actions, suits or other proceedings in question, and no other action, suit
or other proceeding on the same or similar grounds is then or has been pending
or threatened. Nothing contained in this Article VIII shall affect any rights to
indemnification to which personnel of the Trust, other than Trustees and
officers, and other Persons may be entitled by contract or otherwise under law,
nor the power of the Trust to purchase and maintain liability insurance on
behalf of any such Person.
SECTION 8.7. Liability of Third Persons Dealing with Trustees. Nor person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
ARTICLE IX
DURATION REORGANIZAOIN AMENDMENTS
SECTION 9.1. Duration and Termination of Trust. Unless terminated as
provided herein, the Trust shall continue without limitation of time and,
without limiting the generality of the foregoing, no change, alteration or
modification with respect to any Fund or Series of Shares shall operate to
terminate the Trust. The Trust may be terminated at any time by a Majority of
the Trustees, subject to the favorable vote of the holders of not less than a
majority of the Shares outstanding and entitled to vote of each Fund of the
Trust, or by an instrument or instruments in writing without a meeting,
consented to by the holders of not less than a majority of such Shares, or by
such greater or different vote of Shareholders of any Series as may be
established by the Certificate of Designation by which such Series was
authorized. Upon termination; after paying or otherwise providing for all the
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 Section 6.2(d) hereof.
SECTION 9.2. Reorganization. The Trustees may sell, convey and transfer all
or substantially all of the assets of the Trust, or the assets belonging to any
one or more Funds, to another trust, partnership, association or corporation
organized under the laws of the
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United States or any State of the United States, or may transfer such assets to
another Fund of the Trust, in exchange for cash, Shares or other Securities
(including, in the case of a transfer to another Fund of the Trust, Shares of
such other Fund), or to the extent permitted by law then in effect may merge or
consolidate the Trust or any Fund with any other trust or any corporation,
partnership, or association organized under the laws of the United States or any
State of the United States, all upon such terms and conditions and for such
consideration when and as authorized by vote or written consent of a Majority of
the Trustees and approved by the affirmative vote of the holders of not less
than a majority of the Shares outstanding and entitled to vote of each Fund
whose assets are affected by such transaction, or by an instrument or
instruments in writing without a meeting, consented to by the holders of not
less than a majority of such Shares, and/or by such other vote of any Series as
may be established by the Certificate of Designation with respect to such
Series. Following such transfer, the Trustees shall distribute the cash, Shares
or other Securities or other consideration received in such transaction (giving
due effect to the assets belonging to and indebtedness of, and any other
differences among, the various Funds of which the assets have so been
transferred) among the Shareholders of the Fund of which the assets have been so
transferred; and if all of the assets of the Trust have been so transferred, the
Trust shall be terminated. Nothing in this Section 9.2 shall be construed as
requiring approval of Shareholders for the Trustees or organize or assist in
organizing one or more corporations, trusts, partnerships, associations or other
organizations, and to sell, convey or transfer less than substantially all of
the Trust Property or the assets belonging to any Fund to such organizations or
entities.
3/6/95
SECTION 9.3. Amendments etc. All rights granted to the Shareholders under
this Declaration of Trust are granted subject to the reservation of the right to
amend this Declaration of Trust as herein provided, except that no amendment
shall repeal the limitations on personal liability of any Shareholder or Trustee
or the prohibition of assessment upon the Shareholders (otherwise than as
permitted under Section 6.2(g) without the express consent of each Shareholder
or Trustee involved. Subject to the foregoing, the provisions of this
Declaration of Trust (whether or not related to the rights of Shareholders) may
be amended at any time, so long as such amendment does not adversely affect the
rights of any Shareholder with respect to which such amendment is or purports to
be applicable and so long as such amendment is not in contravention of
applicable law, including the 1940 Act, by an instrument in writing signed by a
Majority of the Trustees (or by an officer of the Trust pursuant to the vote of
a Majority of the Trustees). Any amendment to this Declaration of Trust that
adversely affects the rights of all Shareholders may be adopted at any time by
an instrument in writing signed by a Majority of the Trustees (or by an officer
of the Trust pursuant to a vote of a Majority of the Trustees) when authorized
to do so by the vote in accordance with Section 7.1 hereof of Shareholders
holding a majority of all the Shares outstanding and entitled to vote, without
regard to Series, or if said amendment adversely affects the rights of the
Shareholders of less than all of the Funds or of less than all of the Classes of
Shares of any Fund, by the vote of the holders of a majority of all the Shares
entitled to vote of each Fund or of each Class, as the case may be, so affected.
Subject to the foregoing, any such amendment shall be effective when the terms
thereof have been duly adopted, as aforesaid. A certificate (which may be a part
of such instrument) to the effect that such amendment has been duly adopted, and
setting forth the circumstances thereof, shall be
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executed and acknowledged by a Trustee or officer of the Trust and filed as
provided in Section 9.4 hereof (but such filing shall not be a prerequisite to
the effectiveness of such amendment).
SECTION 9.4. Filing of Copies of Declaration and Amendments. The original
or a copy of this Declaration and of each amendment hereto (including each
Certificate of Designation and Certificate of Termination), as well as the
certificates called for by Section 4.1(k) hereof as to changes in the Trustees,
shall be kept at the office of the Trust where it may be inspected by any
Shareholder, and one copy of each such instrument shall be filed with the
Secretary of The Commonwealth of Massachusetts, as well as with any other
governmental office where such filing may from time to time be required by the
laws of Massachusetts. A restated Declaration, integrating into a single
instrument all of the provisions of this Declaration which are then in effect
and operative, may be executed from time to time by a Majority of the Trustees
and shall, upon filing with the Secretary of The Commonwealth of Massachusetts,
be conclusive evidence of all amendments contained therein and may thereafter be
referred to in lieu of the original Declaration and the various amendments
thereto.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Governing Law. This Declaration of Trust is executed and
delivered in The Commonwealth of Massachusetts and with reference to the laws
thereof, and the rights of all parties and the construction and effect of every
provision hereof shall be subject to and construed according to the laws of said
Commonwealth.
SECTION 10.2. Counterparts. This Declaration of Trust and any amendment
hereto may be simultaneously executed in several counterparts, each of which so
executed shall be deemed to be an original, and such counterparts, together,
shall constitute but one and the same instrument, which shall be sufficiently
evidenced by any such original counterpart.
SECTION 10.3. Reliance by Third Parties. Any certificate executed by an
individual who, according to the records in the office of the Secretary of The
Commonwealth of Massachusetts appears to be a Trustee hereunder, certifying to:
(a) the number or identity of Trustees or Shareholders, (b) the due
authorization of the execution of any instrument or writing, Cc) the form of any
vote passed as a meeting of Trustees or Shareholders, (d) the fact that the
number of Trustees or Shareholders present at any meeting or executing any
written instrument satisfies the requirements of this Declaration of Trust, (e)
the form of any Bylaw adopted, or the identity of any officers elected, by the
Trustees, or (f) the existence or non-existence of any fact or facts which in
any manner relate to the affairs of the Trust, shall be conclusive evidence as
to the matters so certified in favor of any Person dealing with the Trustees, or
any of them, and the successors of such Person.
SECTION 10.4. References Headings. The masculine gender shall include the
feminine and neuter genders. Headings are placed herein for convenience of
reference only and shall not be taken as a part of this
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Declaration or control or affect the meaning, construction or effect hereof.
SECTION 10.5. Use of the Name "IDS." IDS Financial Services Inc. ("IDS")
has consented to the use by the Trust and by each Fund and each Series thereof
to the identifying name "IDS" in the name of the Trust and of each Fund and
Series thereof. Such consent is conditioned upon the Trust's employment of IDS
as investment manager to the Trust and to each Fund and each Series thereof. As
between IDS and the Trust, IDS shall control the use of such name insofar as the
name of the Trust contains the identifying "IDS." IDS may from time to time use
the identifying name "IDS" in other connections and for other purposes,
including without limitation in the names of other investment companies,
corporations or businesses that it may manage, advise, sponsor or own or in
which it may have a financial interest. IDS may require the Trust or any Fund or
Series thereof to cease using the identifying name "IDS" in the name of the
Trust or any Fund or any Series thereof if the Trust or any Fund or Series
thereof ceases to employ IDS or a subsidiary or affiliate thereof as investment
manager.
* * *
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