EXHIBIT (a)(5)
▇▇▇▇▇ ▇▇▇▇▇▇ INVESTMENT TRUST
-----------------------------
WRITTEN INSTRUMENT AMENDING
AGREEMENT AND DECLARATION OF TRUST
----------------------------------
The undersigned, being at least a majority of the trustees of ▇▇▇▇▇ ▇▇▇▇▇▇
Growth Fund Trust, a business trust organized under the laws of The Commonwealth
of Massachusetts pursuant to an Agreement and Declaration of Trust dated
September 29, 1983 as amended on December 16, 1983, July 19, 1988, and November
24, 1992 (the "Declaration of Trust"), do hereby amend, effective as of July 31,
1999, the Declaration of Trust as follows, which amendment has been authorized
by the Shareholders of the Trust:
1. Section 2 of Article I is hereby amended by replacing paragraph (c) thereto
with the following:
(c) "Shares" means the equal proportionate transferable units of interest
into which the beneficial interest in the Trust shall be divided from time to
time or, if more than one series or class of Shares is authorized by the
Trustees, the equal proportionate transferable units into which each series or
class of Shares shall be divided from time to time;
2. Section 2 of Article I is hereby further amended by the addition of the
following paragraph:
(j) The term "class" or "class of Shares" refers to the division of Shares
representing any series into two or more classes as provided in Article III,
Section 1 hereof.
3. Sections 1 and 2 of Article III are hereby amended and restated in their
entirety as follows:
Section 1. The Shares of the Trust shall be issued in one or more series as
the Trustees may, without Shareholder approval, authorize from time to time.
Each series shall be preferred over all other series in respect of the assets
allocated to that series as hereinafter provided. The beneficial
interest in each series shall at all times be divided into Shares (without par
value) of such series, each of which shall represent an equal proportionate
interest in such series with each other Share of the same series, none having
priority or preference over another Share of the same series. The Trustees may,
without Shareholder approval divide the Shares of any series into two or more
classes, Shares of each such class having such preferences and special or
relative rights and privileges (including conversion rights, if any) as the
Trustees may determine and as shall be set forth in the By-Laws. The number of
Shares authorized shall be unlimited, and the Shares so authorized may be
represented in part by fractional Shares. The Trustees may from time to time
divide or combine the Shares of any series into a greater or lesser number
without thereby changing the proportionate beneficial interests in the series.
Without limiting the authority of the Trustees set forth in this Section 1 to
establish and designate any further series, the Trustees hereby confirm and
ratify their prior establishment and designation of two (2) series of Shares
known as the "▇▇▇▇▇ ▇▇▇▇▇▇ Growth Fund" series and the "▇▇▇▇▇ ▇▇▇▇▇▇ Income
Fund" series, and further establish and designate two (2) new series of Shares
to be known as the "▇▇▇▇▇ ▇▇▇▇▇▇ Money Market Fund" series and the "▇▇▇▇▇ ▇▇▇▇▇▇
CorePortfolio Fund" series. The establishment and designation of any series of
Shares in addition to the foregoing shall be effective upon the execution by a
majority of the then Trustees of an instrument setting forth such establishment
and designation and the relative rights and preferences of such series. As
provided in Article IX, Section 1 hereof, any series of Shares (whether or not
there shall then be Shares outstanding of said series) may be terminated by the
Trustees by written notice to the Shareholders of such series or by the vote of
the Shareholders of such series entitled to vote more than fifty percent (50%)
of the votes entitled to be cast on the matter. In the event of any such
termination, a majority of the then Trustees shall execute an instrument setting
forth the termination of such series.
Section 2. The ownership of Shares shall be recorded on the books of the
Trust or a transfer or similar agent. No certificates certifying the ownership
of Shares shall be issued except as the Trustees may otherwise determine from
time to time. The Trustees may make such rules as they
2
consider appropriate for the issuance of Share certificates, the transfer of
Shares, and similar matters. The record books of the Trust as kept by the Trust
or any transfer or similar agent, as the case may be, shall be conclusive as to
who are the Shareholders of each series and class and as to the number of Shares
of each series and class held from time to time by each Shareholder.
4. Section 2 of Article IV is hereby amended by replacing paragraph (h)
thereto with the following:
(h) To allocate assets, liabilities and expenses of the Trust to a
particular series of Shares or to apportion the same among two or more series,
provided that any liabilities or expenses incurred by or arising in connection
with a particular series of Shares shall be payable solely out of the assets of
that series; and to the extent necessary or appropriate to give effect to the
preferences and special or relative rights and privileges of any classes of
Shares, to allocate assets, liabilities and expenses of a series to a particular
class of Shares of that series or to apportion the same among two or more
classes of Shares of that series;
5. Sections 1, 2 and 3 of Article V are hereby amended and restated in their
entirety as follows:
Section 1. Subject to the voting powers of one or more classes of Shares as
set forth elsewhere in this Declaration of Trust or in the By-Laws, the
Shareholders shall have power to vote only: (a) for the election or removal of
Trustees as provided in Article IV, Section 1; (b) with respect to any
investment advisor or manager as provided in Article IV, Section 6; (c) with
respect to any termination or reorganization of the Trust to the extent and as
provided in Article IX, Section 1; (d) with respect to any amendment of this
Declaration of Trust to the extent and as provided in Article IX, Section 4; (e)
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 the Shareholders;
3
and (f) with respect to such additional matters relating to the Trust as may be
required by law, the 1940 Act, this Declaration of Trust, the By-Laws or any
registration of the Trust with the Commission (or any successor agency) or any
state, or as the Trustees may consider necessary or desirable.
Each whole Share shall be entitled to one vote as to any matter on which it
is entitled to vote and each fractional Share shall be entitled to a
proportionate fractional vote. On any matter submitted to a vote of Shareholders
all Shares of the Trust then entitled to vote, irrespective of series, shall be
voted in the aggregate as a single class without regard to series or classes of
shares, except (a) when required by the 1940 Act or when the Trustees shall have
determined that the matter affects one or more series or classes of Shares
materially differently, Shares shall be voted by individual series or class; and
(b) when the Trustees have determined that the matter affects only the interests
of one or more series or classes, only Shareholders of such series or classes
shall be entitled to vote thereon. There shall be no cumulative voting in the
election of Trustees. Shares may be voted in person or by proxy.
A proxy with respect to Shares held in the name of two or more persons
shall be valid if executed by any one of them unless at or prior to the 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 of any series or class are issued, the Trustees may exercise
all rights of Shareholders and may take any action required by law, this
Declaration of Trust or the By-Laws to be taken by Shareholders as to such
series or class.
4
Section 2. Meetings of Shareholders of any or all series or classes may be
called and held from time to time for the purpose of taking action upon any
matter requiring the vote or authority of the Shareholders of such series or
classes as herein provided or upon any other matter deemed by the Trustees to be
necessary or desirable. Such meetings shall be held at the principal office of
the Trust as set forth in the By-Laws of the Trust, or at any such other place
within the United States as may be designated in the call thereof, which call
shall be made by the Trustees or the President of the Trust. Meetings of
Shareholders may be called by the Trustees or such other person or persons as
may be specified in the By-Laws and shall be called by the Trustees or such
other person or persons as may be specified in the By-Laws upon written
application by Shareholders holding at least twenty-five percent (25%) of the
then outstanding Shares of all series and classes entitled to vote at such
meeting requesting a meeting be called for a purpose requiring action by the
Shareholders as provided herein or in the By-Laws which purpose shall be
specified in any such written application.
Shareholders shall be entitled to at least seven days' written notice of
any meeting of the Shareholders.
Section 3. The presence at a meeting of Shareholders in person or by proxy
of Shareholders entitled to vote at least thirty percent (30%) of all votes
entitled to be cast at the meeting shall be a quorum for the transaction of
business at a Shareholders' meeting, except that where any provision of law or
of this Declaration of Trust or the By-Laws permits or requires that the holders
of any series or class shall vote as an individual series or class, then the
presence in person or by proxy of Shareholders entitled to vote at least thirty
percent (30%) of the aggregate votes entitled to be cast at the meeting of each
series or class entitled to vote shall constitute a quorum. Any lesser number,
however, shall be sufficient for adjournments. Any adjourned session or
sessions may be held
5
within a reasonable time after the date set for the original meeting without the
necessity of further notice.
Except when a larger vote is required by any provisions of the 1940 Act,
this Declaration of Trust or the By-Laws, a majority of the Shares voted on any
matter shall decide such matter and a plurality shall elect a Trustee, provided
that where any provision of law or of this Declaration of Trust permits or
requires that the holders of any series or class shall vote as an individual
series or class, then a majority of Shares of that series or class voted on the
matter shall decide that matter insofar as that series or class is concerned.
6. Section 4 of Article IX is hereby amended and restated in its entirety as
follows:
Section 4. This Declaration of Trust may be amended at any time by an
instrument in writing signed by a majority of the then Trustees when authorized
so to do by vote of Shareholders holding more than fifty percent (50%) of the
Shares entitled to vote, except that an amendment which shall affect the holders
of one or more series or classes of Shares but not the holders of all
outstanding series or classes shall be authorized by vote of the Shareholders
holding more than fifty percent (50%) of the Shares entitled to vote of each
series or class affected and no vote of Shareholders of a series not affected
shall be required. Amendments having the purpose of changing the name of the
Trust or of supplying any omission, curing any ambiguity or curing, correcting
or supplementing any provision which is defective or inconsistent with the 1940
Act or with the requirements of the Internal Revenue Code and the regulations
thereunder for the Trust's obtaining the most favorable treatment thereunder
available to regulated investment companies shall not require authorization by
Shareholder vote.
6
IN WITNESS WHEREOF, the undersigned, being at least a majority of the
Trustees in office, have executed this instrument this 23rd day of July, 1999.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------- --------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------- ---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------- -------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
7
STATE OF ILLINOIS )
) SS.
COUNTY OF ▇▇▇▇ )
Then personally appeared before me the above-named ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ known to me and known to be trustees of ▇▇▇▇▇
▇▇▇▇▇▇ Investment Trust and acknowledged the foregoing instrument to be their
act and deed.
_________________________________
Notary Public
My Commission Expires:___________
8
