ASHPORT MUTUAL FUNDS
AGREEMENT AND DECLARATION OF TRUST
Dated: May 24, 0000
Xxxxxxxxx Xxxxx of Business:
c/o State Trust
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Massachusetts Office and Name and
Address of Initial Trustee:
Xxxxx X. Xxxxx, Esquire
Xxxxx & Associates
00 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxxx 00000
Name and Address of Resident Agent:
Corporation Service Company
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
ASHPORT MUTUAL FUNDS
AGREEMENT AND DECLARATION OF TRUST
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Table of Contents
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Provision Page
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RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1. THE TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Location . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.3 Definitions. . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.4 Real Property to be Converted into Personal Property . . 5
ARTICLE 2. PURPOSE OF THE TRUST. . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 3. POWERS OF THE TRUSTEES. . . . . . . . . . . . . . . . . . . . . 6
Section 3.1 Powers in General. . . . . . . . . . . . . . . . . . . . 6
(a) Investments. . . . . . . . . . . . . . . . . . . . . . . . . 7
(b) Disposition of Assets . . . . . . . . . . . . . . . . . . . 7
(c) Ownership Powers. . . . . . . . . . . . . . . . . . . . . . . 7
(d) Form of Holding . . . . . . . . . . . . . . . . . . . . . . . 7
(e) Reorganization, etc. .. . . . . . . . . . . . . . . . . . . . 7
(f) Voting Trusts, etc. . . . . . . . . . . . . . . . . . . . . . 7
(g) Contracts, etc. . . . . . . . . . . . . . . . . . . . . . . . 8
(h) Guarantees, etc. . . . . . . . . . . . . . . . . . . . . . . 8
(i) Partnerships, etc. . . . . . . . . . . . . . . . . . . . . . 8
(j) Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(k) Pensions, etc. . . . . . . . . . . . . . . . . . . . . . . . 8
(l) Power of Collection and Litigation . . . . . . . . . . . . . 8
(m) Issuance and Repurchase of Shares . . . . . . . . . . . . . . 9
(n) Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(o) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(p) Agents, etc. . . . . . . . . . . . . . . . . . . . . . . . . 9
(q) Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(r) Valuation . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(s) Indemnification . . . . . . . . . . . . . . . . . . . . . . . 9
(t) General . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.2 Borrowings; Financings; Issuance of Securities . . . . . 10
Section 3.3 Deposits . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.4 Allocations . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.5 Further Powers; Limitations . . . . . . . . . . . . . . 10
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ARTICLE 4. TRUSTEES AND OFFICERS . . . . . . . . . . . . . . . . . . . . . 11
Section 4.1 Number. Designation, Election, Term, etc. . . . . . . . 11
(a) Initial Trustee . . . . . . . . . . . . . . . . . . . . . . . 11
(b) Number . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(c) Election and Term . . . . . . . . . . . . . . . . . . . . . . 11
(d) Resignation and Retirement . . . . . . . . . . . . . . . . . 11
(e) Removal . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(f) Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(g) Effect of Death, Resignation, etc. . . . . . . . . . . . . . 12
(h) No Accounting . . . . . . . . . . . . . . . . . . . . . . . . 12
(i) Retirement Policy . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.2 Trustees' Meetings; Participation by Telephone, etc. . 12
Section 4.3 Committees; Delegation . . . . . . . . . . . . . . . . . 12
Section 4.4 Officers . . . . . . . . . . . . . . . . . . . . . . . 13
Section 4.5 Compensation of Trustees and Officers . . . . . . . . . 13
Section 4.6 Ownership of Shares and Securities of the Trust. . . . . 13
Section 4.7 Right of Trustees and Officers to Own Property and to
Engage in Business; Authority of Trustees to Permit
Others to do Likewise . . . . . . . . . . . . . . . . . 13
Section 4.8 Reliance on Experts . . . . . . . . . . . . . . . . . . 14
Section 4.9 Surety Bonds . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.10 Apparent Authority of Trustees and Officers . . . . . . 14
Section 4.11 Other Relationships Not Prohibited . . . . . . . . . . . 14
Section 4.12 Payment of Trust Expenses . . . . . . . . . . . . . . . 15
Section 4.13 Ownership of the Trust Property . . . . . . . . . . . . 15
ARTICLE 5. DELEGATION OF MANAGERIAL RESPONSIBILITIES. . . . . . . . . . . . 16
Section 5.1 Appointment; Action by Less than All Trustees . . . . . 16
Section 5.2 Certain Contracts. . . . . . . . . . . . . . . . . . . . 16
(a) Advisory . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(b) Administration . . . . . . . . . . . . . . . . . . . . . . . 16
(c) Distribution . . . . . . . . . . . . . . . . . . . . . . . . 17
(d) Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(e) Transfer and Dividend Disbursing Agency . . . . . . . . . . . 17
(f) Shareholder Servicing . . . . . . . . . . . . . . . . . . . . 17
(g) Accounting . . . . . . . . . . . . . . . . . . . . . . . . . 17
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ARTICLE 6. PORTFOLIOS AND SHARES . . . . . . . . . . . . . . . . . . . . . 18
Section 6.1 Description of Portfolios and Shares . . . . . . . . . . 18
(a) Shares: Portfolios: Series of Shares . . . . . . . . . . . . 18
(b) Establishment, etc. of Additional Portfolios; Authorization
of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(c) Character of Separate Portfolios and Shares Thereof . . . . . 19
(d) Consideration for Shares . . . . . . . . . . . . . . . . . . 19
Section 6.2 Establishment and Designation of the Portfolios
and of the Shares Thereof; General Provisions for
All Portfolios . . . . . . . . . . . . . . . . . . . . . 19
(a) Assets Belonging to Portfolios. . . . . . . . . . . . . . . . 19
(b) Liabilities of Portfolios . . . . . . . . . . . . . . . . . . 20
(c) Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(d) Liquidation . . . . . . . . . . . . . . . . . . . . . . . . . 20
(e) Redemption by Shareholder . . . . . . . . . . . . . . . . . . 21
(f) Redemption at the Option of the Trust. . . . . . . . . . . . 21
(g) Net Asset Value . . . . . . . . . . . . . . . . . . . . . . . 21
(h) Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(i) Equality . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(j) Rights of Fractional Shares . . . . . . . . . . . . . . . . . 22
(k) Conversion Rights . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.3 Ownership of Shares . . . . . . . . . . . . . . . . . . 22
Section 6.4 Investments in the Trust . . . . . . . . . . . . . . . . 22
Section 6.5 No Pre-emptive Rights . . . . . . . . . . . . . . . . . 23
Section 6.6 Status of Shares . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 7. SHAREHOLDERS' VOTING POWERS AND MEETINGS . . . . . . . . . . . 24
Section 7.1 Voting Powers . . . . . . . . . . . . . . . . . . . . . 24
Section 7.2 Number of Votes and Manner of Voting: Proxies . . . . . 24
Section 7.3 Meetings . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.4 Record Dates . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.5 Quorum and Required Vote . . . . . . . . . . . . . . . . 25
Section 7.6 Action by Written Consent . . . . . . . . . . . . . . . 25
Section 7.7 Inspection of Records . . . . . . . . . . . . . . . . . 26
Section 7.8 Additional Provisions . . . . . . . . . . . . . . . . . 26
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ARTICLE 8. LIMITATION OF LIABILITY: INDEMNIFICATION . . . . . . . . . . . 27
Section 8.1 Trustees. Shareholders. etc. Not Personally Liable:
Notice . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 8.2 Trustees' Good Faith Action; Expert Advice; No Bond
or Surety . . . . . . . . . . . . . . . . . . . . . . . 27
Section 8.3 Indemnification of Shareholders . . . . . . . . . . . . 28
Section 8.4 Indemnification of Trustees. Officers. etc. . . . . . . 28
Section 8.5 Compromise Payment . . . . . . . . . . . . . . . . . . . 29
Section 8.6 Indemnification Not Exclusive, etc. . . . . . . . . . . 29
Section 8.7 Liability of Third Persons Dealing with Trustees . . . . 29
ARTICLE 9. DURATION; REORGANIZATION; AMENDMENTS . . . . . . . . . . . . . 30
Section 9.1 Duration and Termination of Trust . . . . . . . . . . . 30
Section 9.2 Reorganization . . . . . . . . . . . . . . . . . . . . 30
Section 9.3 Amendments; etc. . . . . . . . . . . . . . . . . . . . . 30
Section 9.4 Filing of Copies of Declaration and Amendments . . . . . 31
ARTICLE 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 10.1 Governing Law . . . . . . . . . . . . . . . . . . . . . 32
Section 10.2 Counterparts . . . . . . . . . . . . . . . . . . . . . . 32
Section 10.3 Reliance by Third Parties . . . . . . . . . . . . . . . 32
Section 10.4 References; Headings . . . . . . . . . . . . . . . . . . 32
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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AGREEMENT AND DECLARATION OF TRUST
OF
ASHPORT MUTUAL FUNDS
This AGREEMENT AND DECLARATION OF TRUST, made at Boston, Massachusetts this 24th
day of May, 2001 by the Trustee whose signature is set forth below (the "Initial
Trustee"),
W I T N E S S E T H T H A T:
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WHEREAS, this Trust has been formed to carry on the business of an investment
company; and
WHEREAS, this Trust is authorized to issue its shares of beneficial interest in
separate series, each separate series to be a Portfolio hereunder, all in
accordance with the provisions hereinafter set forth; and
WHEREAS, the Trustees have agreed to manage all property coming into their hands
as trustees of a Massachusetts business trust in accordance with the provisions
hereinafter set forth; and
NOW, THEREFORE, the Initial Trustee, for herself and her successors as Trustees,
hereby declare that they will hold cash, securities and other assets which they
may from time to time acquire in any manner as Trustees hereunder IN TRUST to
manage and dispose of the same upon the following terms and conditions for the
benefit of the holders from time to time of shares of beneficial interest in
this Trust or Portfolios created hereunder as hereinafter set forth.
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ARTICLE 1
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THE TRUST
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SECTION 1.1 NAME. This Trust shall be known as "Ashport Mutual Funds" and
the Trustees shall conduct the business of the Trust under that name or names as
they may from time to time determine name of the Trust shall be.
SECTION 1.2 LOCATION. The Trust shall have an office in Beverly,
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 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.
"BY-LAWS" shall mean the By-Laws 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.
"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.
"COVERED PERSON" shall have the meaning designated in SECTION 8.4 hereof.
"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.
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"DIVIDEND DISBURSING AGENT" shall have the meaning designated in SECTION
5.2(e) 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.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code of 1986, as
from time to time amended and in effect, or any substituted statute dealing with
the same general subject matter as the Internal Revenue Code of 1986, as in
effect on October, 1995, and in either case the rules and regulations
thereunder, as from time to time interpreted and applied by applicable case law
thereunder.
"INVESTMENT ADVISER" 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.
"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, represented in person or by proxy and entitled to vote
thereon, provided that 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 affirmative vote for such action of
the holders of that number of all outstanding Shares (or, where a separate vote
of Shares of any particular Series is to be taken, the affirmative vote of that
number of the outstanding Shares of that Series) of the Trust which constitutes
either (i) a majority of all Shares (or of Shares of the particular Series)
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) issued and outstanding and
entitled to vote on such action; PROVIDED, that (iii) as used with respect to
any action requiring the affirmative vote of "a majority of the outstanding
voting securities", as the quoted phrase is defined in the 1940 Act, of the
Trust or of any Series, "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) 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.
"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.
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"PORTFOLIO" or "PORTFOLIOS" 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 6 hereof.
"PORTFOLIO ASSETS" shall have the meaning defined in SECTION 6.2(a) hereof.
"PRINCIPAL UNDERWRITER" shall have the meaning designated in SECTION 5.2(c)
hereof.
"PROSPECTUS," as used with respect to any Portfolio or Series of Shares,
shall mean the prospectus relating to such Portfolio or Series which constitutes
part of the currently effective Registration Statement of the Trust under the
Securities Act of 1933, as such prospectus may be amended or supplemented from
time to time.
"SECURITIES" shall mean any and all bills, notes, bonds, debentures or
other obligations or evidences of indebtedness, certificates of deposit,
bankers' acceptances, commercial paper, repurchase agreements or other money
market instruments; stocks, shares or other equity ownership interests; and
warrants, options or other instruments representing rights to subscribe for,
purchase, receive or otherwise acquire or to sell, transfer, assign or otherwise
dispose of, and scrip, certificates, receipts or other instruments evidencing
any ownership rights or interests in, any of the foregoing and "when issued" and
"delayed delivery" contracts for securities, issued, guaranteed or sponsored by
any governments, political subdivisions or governmental authorities, agencies or
instrumentalities, by any individuals, firms, companies, corporations,
syndicates, associations or trusts, or by any other organizations or entities
whatsoever, irrespective of their forms or the names by which they may be
described, whether or not they be organized and operated for profit, and whether
they be domestic or foreign with respect to The Commonwealth of Massachusetts or
the United States of America.
"SECURITIES OF THE TRUST" shall mean any Securities issued by the Trust.
"SERIES" shall mean one or more of the series of Shares authorized by the
Trustees, each to represent the beneficial interests in one of the Portfolios of
the Trust.
"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, and shall include a pledgee into whose name any such Shares are
transferred in pledge.
"SHAREHOLDER SERVICING AGE" 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 Portfolio of the Trust (as the context may
require) shall be divided from time to time, and includes fractions of Shares as
well as whole Shares. All references herein to "Shares" which are not
accompanied by a reference to any particular Series 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
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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," as used with respect to any Series
of Shares, shall mean the statement of additional information relating to such
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 by, or for the account of, the Trust or the Trustees,
without regard to the Portfolio to which such property is allocated.
"TRUSTEES" shall mean, collectively, the Initial Trustee, so long as he
shall continue in office, and all other individuals who at the time in question
have been duly elected or appointed as Trustees of the Trust in accordance with
the provisions hereof and who have qualified and are then in office. At any time
at which there shall be only one (1) Trustee in office, such term shall mean
such single Trustee.
SECTION 1.4 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.
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ARTICLE 2
---------
PURPOSE OF THE TRUST
--------------------
The purpose of the Trust is to operate as an investment company and to
offer Shareholders of the Trust and each Portfolio of the Trust one or more
investment programs primarily in securities and debt instruments.
ARTICLE 3
---------
POWERS OF THE TRUSTEES
----------------------
SECTION 3.1 POWERS IN GENERAL. The Trustees shall have, without other or
further authorization, full, entire, exclusive and absolute power, control and
authority over, and management of, the business of the Trust and over the Trust
Property, to the same extent as if the trustees were the sole owners of the
business and property of the Trust in their own right, and with such powers of
delegation as may be permitted by this Declaration, subject only to such
limitations as may be expressly imposed by this Declaration or by applicable
law. The enumeration of any specific power or authority herein shall not be
construed as limiting the aforesaid power or authority or any specific power or
authority. Without limiting the foregoing, the Trustees may adopt By-Laws not
inconsistent with this Declaration providing for the conduct of the business and
affairs of the Trust and may amend and repeal them to the extent that such
By-Laws do not reserve that right to the Shareholders; they may select, and from
time to time change, the fiscal year of the Trust; they may adopt and use a seal
for the Trust, PROVIDED, that unless otherwise required by the Trustees, it
shall not be necessary to place the seal upon, and its absence shall not impair
the validity of, any document, instrument or other paper executed and delivered
by or on behalf of the Trust; they may from time to time in accordance with the
provisions of SECTION 6.1 hereof establish one or more Portfolios to which they
may allocate such of the Trust Property, subject to such liabilities, as they
shall deem appropriate, each such Portfolio to be operated by the Trustees as a
separate and distinct investment medium and with separately defined investment
objectives and policies and distinct investment purposes, all as established by
the Trustees, or from time to time changed by them; they may as they consider
appropriate elect and remove officers and appoint and terminate agents and
consultants and hire and terminate employees, any one or more of the foregoing
of whom may be a Trustee; they may appoint from their own number, and terminate,
any one or more committees consisting of one or more Trustees, including without
implied limitation an Executive Committee, which may, when the Trustees are not
in session and subject to the 1940 Act, exercise some or all of the power and
authority of the Trustees as the Trustees may determine; in accordance with
SECTION 5.2 they may employ one or more Investment Advisers, Administrators and
Custodians and may authorize any Custodian to employ subcustodians or agents and
to deposit all or any part of such assets in a system or systems for the central
handling of Securities, retain Transfer, Dividend Disbursing, Accounting or
Shareholder Servicing Agents or any of the foregoing, provide for the
distribution of Shares by the Trust through one or more Distributors, Principal
Underwriters or
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otherwise, set record dates or times for the determination of Shareholders
entitled to participate in, benefit from or act with respect to various matters;
and in general they may delegate to any officer of the Trust, to any Committee
of the Trustees and to any employee, Investment Adviser, Administrator,
Distributor, Custodian, Transfer Agent, Dividend Disbursing Agent, or any other
agent or consultant of the Trust, such authority, powers, functions and duties
as they consider desirable or appropriate for the conduct of the business and
affairs of the Trust, including without implied limitation the power and
authority to act in the name of the Trust and of the Trustees, to sign documents
and to act as attorney-in-fact for the Trustees. Without limiting the foregoing
and to the extent not inconsistent with the 1940 Act or other applicable law,
the Trustees shall have power and authority:
(a) INVESTMENTS. To invest and reinvest cash and other property; to buy,
for cash or on margin, and otherwise acquire and hold, Securities created or
issued by any Persons, including Securities maturing after the possible
termination of the Trust; to make payment therefor in any lawful manner in
exchange for any of the Trust Property; and to hold cash or other property
uninvested without in any event being bound or limited by any present or future
law or custom in regard to investments by trustees,
(b) DISPOSITION OF ASSETS. To lend, sell, exchange, mortgage, pledge,
hypothecate, grant security interests in, encumber, negotiate, convey, transfer
or otherwise dispose of, and to trade in, any and all of the Trust Property,
free and clear of all trusts, for cash or on terms, with or without
advertisement, and on such terms and conditions as to payment, security or
otherwise, all as they shall deem necessary or expedient;
(c) OWNERSHIP POWERS. To vote or give assent, or exercise any and all
other rights, powers and privileges of ownership with respect to, and to perform
any and all duties and obligations as owners of, any Securities or other
property forming part of the Trust Property, the same as any individual might
do; to exercise powers and rights of subscription or otherwise which in any
manner arise out of ownership of Securities, and to receive powers of attorney
from, and to execute and deliver proxies or powers of attorney to, such Person
or Persons as the Trustees shall deem proper, receiving from or granting to such
Person or Persons such power and discretion with relation to Securities or other
property of the Trust, all as the Trustees shall deem proper;
(d) FORM OF HOLDING. To hold any Security or other property in a form not
indicating any trust, whether in bearer, unregistered or other negotiable form,
or in the name of the Trustees or of the Trust, or of the Portfolio to which
such Securities or property belong, or in the name of a Custodian, subcustodian
or other nominee or nominees, or otherwise, upon such terms, in such manner or
with such powers, as the Trustees may determine, and with or without indicating
any trust or the interest of the Trustees therein;
(e) REORGANIZATION, ETC. To consent to or participate in any 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 Portfolio; to consent to
any contract, lease, mortgage, purchase or sale of property by such corporation
or issuer, and to pay calls or subscriptions with respect to any Security
forming part of the Trust Property;
(f) VOTING TRUSTS, ETC. To join with other holders of any 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
-8-
such power and authority with relation to any Security (whether or not so
deposited or transferred) as the Trustees shall deem proper, and to agree to
pay, and to pay, such portion of the expenses and compensation of such
committee, depository or trustee as the Trustees shall deem proper;
(g) CONTRACTS, ETC. To enter into, make and perform all such obligations,
contracts, agreements and undertakings of every kind and description, with any
Person or Persons, as the Trustees shall in their discretion deem expedient in
the conduct of the business of the Trust, for such terms as they shall see fit,
whether or not extending beyond the term of office of the Trustees, or beyond
the possible expiration of the Trust; to amend, extend, release or cancel any
such obligations, contracts, agreements or understandings; and to execute,
acknowledge, deliver and record all written instruments which they may deem
necessary or expedient in the exercise of their powers;
(h) GUARANTEES, ETC. To endorse or guarantee the payment of any notes or
other obligations of any Person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof; and to mortgage and pledge the
Trust Property or any part thereof to secure any of or all such obligations;
(i) PARTNERSHIPS, ETC. To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(j) INSURANCE. To purchase and pay for entirely out of Trust Property such
insurance as they may deem necessary or appropriate for the conduct of the
business, including, without limitation, insurance policies insuring the assets
of the Trust and payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, consultants, Investment Advisers, managers,
Administrators, Distributors, Principal Underwriters, or other independent
contractors, or any thereof (or any Person connected therewith), of the Trust,
individually, against all claims and liabilities of every nature arising by
reason of holding, being or having held any such office or position, or by
reason of any action alleged to have been taken or omitted by any such Person in
any such capacity, including any action taken or omitted that may be determined
to constitute negligence, whether or not the Trust would have the power to
indemnify such Person against such liability;
(k) PENSIONS, ETC. To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of providing such
retirement and other benefits, for any or all of the Trustees, officers,
employees and agents of the Trust;
(l) POWER OF COLLECTION AND LITIGATION. To collect, xxx for and receive
all sums of money coming due to the Trust, to employ counsel, and to commence,
engage in, prosecute, intervene in, join, defend, compound, compromise, adjust
or abandon, in the name of the Trust, any and all actions, suits, proceedings,
disputes, claims, controversies, demands or other litigation or legal
proceedings relating to the Trust, the business of the Trust, the Trust
Property, or the Trustees, officers, employees, agents and other independent
contractors of the Trust, in their capacity as such, at law or in equity, or
before any other bodies or tribunals, and to compromise, arbitrate or otherwise
adjust any dispute to which the Trust may be a party, whether or not any suit is
commenced or any claim shall have been made or asserted;
-9-
(m) ISSUANCE AND REPURCHASE OF SHARES. To issue, sell. repurchase, redeem,
retire, cancel, acquire, hold, resell, reissue, dispose of, transfer, and
otherwise deal in Shares of any Series, and, subject to ARTICLE 6 hereof, to
apply to any such repurchase, redemption, retirement, cancellation or
acquisition of Shares of any Series, any of the Portfolio Assets belonging to
the Portfolio to which such Series relates, whether constituting capital or
surplus or otherwise, to the full extent now or hereafter permitted by
applicable law; PROVIDED, that any Shares belonging to the Trust shall not be
voted, directly or indirectly;
(n) OFFICES. To have one or more offices, and to carry on all or any of
the operations and business of the Trust, in any of the States, Districts or
Territories of the United States, and in any and all foreign countries, subject
to the laws of such State, District, Territory or country;
(o) EXPENSES. To incur and pay any and all such expenses and charges as
they may deem advisable (including without limitation appropriate fees to
themselves as Trustees), and to pay all such sums of money for which they may be
held liable by way of damages, penalty, fine or otherwise;
(p) AGENTS, ETC. To retain and employ any and all such servants, agents,
employees, attorneys, brokers, investment advisers, accountants, architects,
engineers, builders, escrow agents, depositories, consultants, ancillary
trustees, custodians, agents for collection, insurers, banks and officers, as
they think best for the business of the Trust or any Portfolio, to supervise and
direct the acts of any of the same, and to fix and pay their compensation and
define their duties;
(q) ACCOUNTS. To determine, and from time to time change, the method or
form in which the accounts of the Trust shall be kept;
(r) VALUATION. Subject to the requirements of the 1940 Act, to determine
from time to time the value of all or any part of the Trust Property and of any
services, Securities, property or other consideration to be furnished to or
acquired by the Trust, and from time to time to revalue all or any part of the
Trust Property in accordance with such appraisals or other information as is, in
the Trustees' sole judgment, necessary and satisfactory;
(s) INDEMNIFICATION. In addition to the mandatory indemnification provided
for in ARTICLE 8 hereof and to the extent permitted by law, to indemnify or
enter into agreements with respect to indemnification with any Person with whom
this Trust has dealings, including, without limitation, any independent
contractor, to such extent as the Trustees shall determine; and
(t) GENERAL. To do all such other acts and things and to conduct, operate,
carry on and engage in such other lawful businesses or business activities as
they shall in their sole and absolute discretion consider to be incidental to
the business of the Trust or any Portfolio as an investment company, and to
exercise all powers which they shall in their discretion consider necessary,
useful or appropriate to carry on the business of the Trust or any Portfolio, to
promote any of the purposes for which the Trust is formed, whether or not such
things are specifically mentioned herein, in order to protect or promote the
interests of the Trust or any Portfolio, or otherwise to carry out the
provisions of this Declaration.
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SECTION 3.2 BORROWINGS AND SECURITY. The Trustees shall have power to
borrow funds and to mortgage and pledge the assets of the Trust or any part
therof to secure obligations arising in connection with such borrowing.
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 part or all of any premium or discount, to
treat any part or all of the profit resulting from the maturity or sale of any
asset, whether purchased at a premium or at a discount, as income or capital, or
to apportion the same between income and capital, to apportion the sale price of
any asset between income and capital, and to determine in what manner any
expenses or disbursements are to be borne as between income and capital, whether
or not in the absence of the power and authority conferred by this SECTION 3.4
such assets would be regarded as income or as capital or such expense or
disbursement would be charged to income or to capital: to treat any dividend or
other distribution on any investment as income or capital, or to apportion the
same between income and capital; to provide or fail to provide reserves,
including reserves for depreciation, amortization or obsolescence in respect of
any Trust Property in such amounts and by such methods as they shall determine;
to allocate less than all of the consideration paid for Shares of any Series to
the shares of beneficial interest account of the Portfolio to which such Shares
relate and to allocate the balance thereof to paid-in capital of that Portfolio,
and to reallocate such amounts from time to time; all as the Trustees may
reasonably deem proper.
SECTION 3.5 FURTHER POWERS; LIMITATIONS. The Trustees shall have power to
do all such other matters and things, and to execute all such instruments, as
they deem necessary, proper or desirable in order to carry out, promote or
advance the interests of the Trust, although such matters or things are not
herein specifically mentioned. Any determination as to what is in the interests
of the Trust made by the Trustees in good faith shall be conclusive. In
construing the provisions of this Declaration, the presumption shall be in favor
of a grant of power to the Trustees. The Trustees shall not be required to
obtain any court order to deal with the Trust Property. The Trustees may limit
their right to exercise any of their powers through express restrictive
provisions in the instruments evidencing or providing the terms for any
Securities of the Trust or in other contractual instruments adopted on behalf of
the Trust.
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ARTICLE 4
---------
TRUSTEES AND OFFICERS
---------------------
SECTION 4.1 Number, Designation, Election, Term, etc.
-----------------------------------------
(a) INITIAL TRUSTEE. Upon the execution of this Declaration or a
counterpart hereof or some other writing in which she accepts such Trusteeship
and agrees to the provisions hereof, Xxxxx X. Xxxxx shall become the initial
Trustee hereof and of each Portfolio.
(b) NUMBER. The Trustees serving as such, whether named above or hereafter
becoming a Trustee, may increase or decrease (to not less than one) the number
of Trustees to a number other than the number theretofore determined. No
decrease in the number of Trustees shall have the effect of removing any Trustee
from office prior to the expiration of his or her term, but the number of
Trustees may be decreased in conjuntion with the removal of a Trustee pursuant
to subsection (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 following the initial public
offering of Shares of the Trust. Each Trustee, whether named above or hereafter
becoming a Trustee, shall serve as a Trustee of the Trust and of each Sub-Turst
hereunder during the lifetime of this Trust and until its termination as
hereinafter provided except as such Trustee sooner dies, resigns or is removed.
Subject to Section 16(a) of the 1940 Act, the Trustees may elect their own
successors and may, pursuant to Section 4.1(f) hereof, appoint Trustees to fill
vacancies.
(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 in office 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, except that any
such appointment in anticipation of a vacancy to
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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) EFFECT OF DEATH, RESIGNATION, ETC. The death, resignation, retirement,
removal or incapacity of the Trustees, or any one of them, shall not operate to
annul or terminate the Trust or any Portfolio hereunder or to revoke or
terminate any existing agency or contract created or entered into pursuant to
the terms of this Declaration of Trust.
(h) 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.
(i) RETIREMENT POLICY. Except for those individuals who (a) are Trustees
as of the date that the Commission declares the Trust's initial registration on
Form N-1A effective or (b) were members of the Board of Directors or Trustees of
an investment company having an investment adviser or principal underwriter
immediately prior to such investment company's combination with the Trust by
merger, acquisition of assets or similar transaction, and of which Trustees may
continue to be nominated as Trustees and to serve as (c) of this Article III, an
individual who has reached the age of seventy-two (72) years may not be elected,
re-elected or appointed to serve as a Trustee.
SECTION 4.2 TRUSTEES' MEETINGS; PARTICIPATION BY TELEPHONE, ETC. An annual
meeting of Trustees shall be held not later than the last day of the fourth
month after the end of each fiscal year of the Trust and special meetings may be
held from time to time, in each case, upon the call of such officers as may be
thereunto authorized by the By-Laws or vote of the Trustees, or by any two (2)
Trustees, or pursuant to a vote of the Trustees adopted at a duly constituted
meeting of the Trustees, and upon such notice as shall be provided in the
By-Laws. The Trustees may act with or without a meeting, and a written consent
to any matter, signed by a Majority of the Trustees, shall be equivalent to
action duly taken at a meeting of the Trustees, duly called and held. Except as
otherwise provided by the 1940 Act or other applicable law, or by this
Declaration or the By-Laws, any action to be taken by the Trustees may be taken
by a majority of the Trustees present at a meeting of Trustees (a quorum,
consisting of at least a Majority of the Trustees, being present), within or
without Massachusetts. If authorized by the By-Laws, all or any one or more
Trustees may participate in a meeting of the Trustees or any Committee thereof
by means of conference telephone or similar means of communication by means of
which all Persons participating in the meeting can hear each other, and
participation in a meeting pursuant to such means of communication shall
constitute presence in person at such meeting. The minutes of any meeting thus
held shall be prepared in the same manner as a meeting at which all participants
were present in person.
SECTION 4.3 COMMITTEES; DELEGATION. The Trustees shall have power,
consistent with their ultimate responsibility to supervise the affairs of the
Trust, to delegate from time to time to an Executive Committee, and to one or
more other Committees, or to any single Trustee, the doing of such things and
the execution of such deeds or other instruments, either in the name of the
Trust or the names of the Trustees or as their attorney or attorneys in fact, or
otherwise as the Trustees may from time to time deem expedient, and any
agreement, deed, mortgage, lease or other instrument or writing executed by the
Trustee or Trustees or other Person to whom such delegation was made shall be
valid and binding upon the Trustees and upon the Trust.
-13-
SECTION 4.4 OFFICERS. The Trustees shall annually elect such officers or
agents, who shall have such powers, duties and responsibilities as the Trustees
may deem to be advisable, and as they shall specify by resolution or in the
By-Laws. Except as may be provided in the By-Laws, any officer elected by the
Trustees may be removed at any time with or without cause. Any two (2) or more
offices may be held by the same individual.
SECTION 4.5 COMPENSATION OF TRUSTEES AND OFFICERS. The Trustees shall fix
the compensation of all officers and Trustees. Without limiting the generality
of any of the provisions hereof, the Trustees shall be entitled to receive
reasonable compensation for their general services as such, and to fix the
amount of such compensation, and to pay themselves or any one or more of
themselves such compensation for special services, including legal, accounting.
or other professional services, as they in good faith may deem reasonable. No
Trustee or officer resigning and (except where a right to receive compensation
for a definite future period shall be expressly provided in a written agreement
with the Trust, duly approved by the Trustees) no Trustee or officer removed
shall have any right to any compensation as such Trustee or officer for any
period following his resignation or removal, or any right to damages on account
of his removal, whether his compensation be by the month, by the year or
otherwise.
SECTION 4.6 OWNERSHIP OF SHARES AND SECURITIES OF THE TRUST. Any Trustee,
and any officer. employee or agent of the Trust, and any organization in which
any such Person is interested, may acquire, own, hold and dispose of Shares of
any Series and other Securities of the Trust for his or its individual account,
and may exercise all rights of a holder of such Shares or Securities to the same
extent and in the same manner as if such Person were not such a 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 AND TO ENGAGE IN
BUSINESS: AUTHORITY OF TRUSTEES TO PERMIT OTHERS TO DO LIKEWISE. The Trustees,
in their capacity as Trustees, and (unless Otherwise specifically directed by
vote of the Trustees) the officers of the Trust in their capacity as such, shall
not be required to devote their entire time to the business and affairs of the
Trust. Except as otherwise specifically provided by vote of the Trustees, or by
agreement in any particular case, any Trustee or officer of the Trust may
acquire, own, hold and dispose of, for his 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.
-14-
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 thereof is a Shareholder or has an
interest in the Trust or any Portfolio, or that
(ii) any Contracting Party may have a contract providing for the rendering
of any similar services to one or more other corporations, trusts,
associations, partnerships, limited partnerships or other
organizations, or have other business or interests and 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
-15-
relationship or - interest and as to the contract have been disclosed
to or are known by the Shareholders entitled to vote thereon and the
contract involved is specifically approved in good faith by vote of
the Shareholders, or (z) the specific contract involved is fair to the
Trust as of the time it is authorized, approved or ratified by the
Trustees or by the Shareholders.
SECTION 4.12 PAYMENT OF TRUST EXPENSES. The Trustees are authorized to pay
or to cause to be paid out of the principal or income of the Trust, or partly
out of principal and partly out of income, and according to any allocation to
particular Portfolios made by them pursuant to SECTION 6.2(b) hereof, all
expenses, fees, charges, taxes and liabilities incurred or arising in connection
with the business and affairs of the Trust or in connection with the management
thereof, including, but not limited to, the Trustees' compensation and such
expenses and charges for the services of the Trust's officers, employees,
Investment Adviser, Administrator, Distributor, Principal Underwriter, auditor,
counsel, Custodian, Transfer Agent, Dividend Disbursing Agent, Accounting Agent,
Shareholder Servicing Agent, and such other agents, consultants, and independent
contractors and such other expenses and charges as the Trustees may deem
necessary or proper to incur.
SECTION 4.13 OWNERSHIP OF THE TRUST PROPERTY. Legal title to all the Trust
Property shall be vested in the Trustees as joint tenants, except that the
Trustees shall have power to cause legal title to any Trust Property to be held
by or in the name of one or more of the Trustees, or in the name of the Trust,
or of any particular Portfolio, or in the name of any other Person as nominee,
on such terms as the Trustees may determine; PROVIDED, that the interest of the
Trust and of the respective Portfolio therein is' appropriately protected. The
right, title and interest of the Trustees in the Trust Property shall vest
automatically in each Person who may hereafter become a Trustee. Upon the
termination of the term of office of a Trustee as provided in SECTION 4.1(c),
(d) or (e) hereof, such Trustee shall automatically cease to have any right,
title or interest in any of the Trust Property, and the right, title and
interest of such Trustee in the Trust Property shall vest automatically in the
remaining Trustees. Such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to SECTION 4.1(i) hereof.
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ARTICLE 5
---------
DELEGATION OF MANAGERIAL RESPONSIBILITIES
-----------------------------------------
SECTION 5.1 APPOINTMENT; ACTION BY LESS THAN ALL TRUSTEES. The Trustees
shall be responsible for the general operating policy of the Trust and for the
general supervision of the business of the Trust conducted by officers, agents,
employees or advisers of the Trust or by independent contractors, but the
Trustees shall not be required to conduct all the business of the Trust in
person, and, consistent with their ultimate responsibility as stated herein, the
Trustees may appoint, employ or contract with one or more officers, employees
and agents to conduct, manage and/or supervise the operations of the Trust, and
may grant or delegate such authority to such officers, employees and/or agents
as the Trustees may, in their sole discretion, deem to be necessary or
desirable, without regard to whether such authority is normally granted or
delegated by trustees. With respect to those matters of the operation and
business of the Trust which they shall elect to conduct themselves, except as
otherwise provided by this Declaration or the By-Laws, if any, the Trustees may
authorize any single Trustee or defined group of Trustees, or any committee
consisting of a number of Trustees less than the whole number ofTrustees then in
office without specification of the particular Trustees required to be included
therein, to act for and to bind the Trust, to the same extent as the whole
number of Trustees could do, either with respect to one or more particular
matters or classes of matters, or generally.
SECTION 5.2 CERTAIN CONTRACTS. Subject to compliance with the provisions of
the 1940 Act, but notwithstanding any limitations of present and future law or
custom in regard to delegation of powers by trustees generally, the Trustees
may, at any time and from time to time in their discretion and without limiting
the generality of their powers and authority otherwise set forth herein, enter
into one or more contracts with any one or more corporations, trusts,
associations, partnerships, limited partnerships or other types of
organizations, or individuals ("CONTRACTING PARTY"), to provide for the
performance and assumption of some or all of the following services, duties and
responsibilities to, for or on behalf of the Trust and/or any Portfolio, and/or
the Trustees, and to provide for the performance and assumption of such other
services, duties and responsibilities in addition to those set forth below, as
the Trustees may deem appropriate:
(a) ADVISORY. Subject to the general supervision of the Trustees and in
conformity with the stated policy of the Trustees with respect to the
investments of the Trust or of the assets belonging to any Portfolio of the
Trust to manage such investments and assets, make investment decisions with
respect therto and to place purchase and sale orders for portfolio transactions
relating to such investments and assets;
(b) ADMINISTRATION. Subject to the general supervision of the Trustees and
in conformity with tany policies of the Trustees with respect to the operations
of the Trust and each Portfolio, to supervise all or any part of the operations
of the Trust and each Portfolio and to provide all or any part of the
administrative and clerical personnel, office space and office equipment and
services appropriate for the efficient administration and operations of the
Trust and each Portfolio (any such agent being herein referred to as an
"ADMINISTRATOR").
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(c) DISTRIBUTION. To distribute the Shares of the Trust and each
Portfolio, to be principal underwriter of such Shares, and/or to act as agent of
the Trust and each Portfolio in the sale of Shares and the acceptance or
rejection of orders for the purchase of Shares;
(d) CUSTODIAN. To act as depository for and to maintain custody of the
property of the Trust and each Portfolio and accounting records in connection
therewith;
(e) TRANSFER AND DIVIDEND DISBURSING AGENCY. To mainatin records of the
ownership of outstanding Shares, the issuance and redemption and the transfer
thereof, and to disburse any dividends declared by the Trustees and in
accordance with the policies of the Trustees and/or the instructions of any
particular Shareholder to reinvest any such dividends;
(f) SHAREHOLDER SERVICING. To provide service with respect to the
relationship of the Trust and its Shareholders, records with respect to
Shareholders and their shares and similar matters; and
(g) ACCOUNTING. To handle all or any part of the accounting
responsibilities, whether with respect to the Trust's properties, Shareholders
or otherwise.
The same Person may be the Contracting Party for some or all of the
services, duties and responsibilities to, for and of the Trust and/or the
Trustees, and the contracts with respect thereto may contain such terms
interpretive of or in addition to the delineation of the services, duties and
responsibilities provided for, including provisions that are not inconsistent
with the 1940 Act relating to the standard of duty of and the rights to
indemnification of the Contracting Party and others, as the Trustees may
determine. Nothing herein shall preclude, prevent or limit the Trust or a
Contracting Party from entering into sub-contractual arrangements relative to
any of the matters referred to in SUBSECTIONS (a) through (g) of this SECTION
5.2.
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ARTICLE 6
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PORTFOLIOS AND SHARES
---------------------
SECTION 6.1 DESCRIPTION OF PORTFOLIOS AND SHARES.
(a) Shares: PORTFOLIOS; SERIES OF SHARES. The beneficial interest in the
Trust shall be divided into Shares (having a nominal or par value of one cent
($.01) per Share, of which an unlimited number may be issued. Without limitation
of any other powers accorded to them by ARTICLE 3 of this Declaration or
otherwise, the Trustees shall have the power and authority (without any
requirement of Shareholder approval), at any time or from time to time,
(i) to establish and designate one or more separate, distinct and
independent Portfolios, in addition to the established and
designated in SECTION 6.2 hereof, into which the assets of the
Trust shall be divided;
(ii) to authorize a separate Series of Shares for each such additional
Portfolio (each of which Series shall represent beneficial
interests only in the Portfolio with respect to which such Series
was authorized);
(iii)to fix and determine the relative rights and preferences of
Shares of the respective Series as to rights of redemption and
the price, terms and manner of redemption, special and relative
rights as to dividends and other distributions and on
liquidation, sinking or purchase fund provisions, conversion
rights, and conditions under which the Shareholders of the
several Series shall have separate voting rights or no voting
rights; and
(iv) to 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 Series that may be established and
designated from time to time.
Except as otherwise provided as to a particular Portfolio herein 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 Portfolio and the assets and affairs thereof as they have under this
Declaration with respect to the Trust and the Trust Property in general.
(b) ESTABLISHMENT, ETC. OF ADDITIONAL PORTFOLIOS; AUTHORIZATION OF SHARES.
The establishment and designation of any Portfolio (in addition to the
portfolios established and designated in SECTION 6.2 hereof) and of the Series
of Shares representing the beneficial interests therein shall be effective upon
the execution by a Majority of the Trustees (or by an officer of the Trust
pursuant to the vote of a Majority of the Trustees) of an instrument setting
forth such establishment and designation and the relative rights and preferences
of the Shares of such Series 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 that may be issued is unlimited, or may limit the number issuable.
At any time at which no Shares of a Series (including the Series established and
designated in SECTION 6.2 hereof) are outstanding, the Trustees may terminate
such Series and the Portfolio to which it pertains by an
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instrument so providing which is executed by a Majority of the Trustees, or by
an officer of the Trust pursuant to the vote of a Majority of the Trustees (a
"CERTIFICATE OF TERMINATION"). Each Certificate of Designation or Certificate of
Termination, and any instrument amending a Certificate of Designation, shall
have the status of an amendment to this Declaration, and shall be filed as
provided in SECTION 9.4 hereof, but such filing shall not be a prerequisite to
the effectiveness thereof.
(c) CHARACTER OF SEPARATE PORTFOLIOS AND SHARES THEREOF. Each Portfolio
established hereunder shall be a separate component of the assets of the Trust,
and the holders of Shares of the Series representing the beneficial interests in
that Portfolio shall be considered Shareholders of such Portfolio, and also as
Shareholders of the Trust for purposes of receiving reports and notices and
(except as otherwise provided herein or in the Certificate of Designation of a
particular Portfolio as to such Portfolio, or as required by the 1940 Act or
other applicable law) the right to vote, all without distinction by Series.
(d) CONSIDERATION FOR SHARES. The Trustees may issue Shares of any Series
for such consideration (which may include property subject to, or acquired in
connection with the assumption of, liabilities) and on such terms as they may
determine (or for no consideration if pursuant to a Share dividend or split-up),
all without action or approval of the Shareholders. All Shares when so issued on
the terms determined by the Trustees shall be fully paid and non-assessable (but
may be subject to mandatory contribution back to the Trust as provided in
SECTION 6.2(h) hereof).
SECTION 6.2 ESTABLISHMENT AND DESIGNATION OF THE ASHPORT LARGE CAP FUND,
ASHPORT SMALL/MID CAP FUND, ASHPORT FIXED INCOME FUND AND OF THE SHARES THEREOF;
GENERAL PROVISIONS FOR ALL PORTFOLIOS. Without limiting the authority of the
Trustees set forth in SECTION 6.1(a) hereof to establish and designate further
Portfolios, there are hereby established and designated the Ashport Large Cap
Fund, Ashport Small/Mid Cap Fund, Ashport Fixed Income Fund and the Shares
thereof, which shall be known as the Ashport Large Cap Fund Series, Ashport
Small/Mid Cap Fund Series, Ashport Fixed Income Fund series; an unlimited number
of Shares of such Series may be issued. Subject to the power of the Trustees to
classify or reclassify any unissued Shares of a Series pursuant to SECTION
6.1(a) above, such Portfolio, and any further Portfolios that may from time to
time be established and designated by the Trustees, and the Shares representing
the beneficial interests therein, shall (unless the Trustees otherwise determine
with respect to some further Portfolio at the time of establishing and
designating the same) have the following relative rights and preferences:
(a) ASSETS BELONGING TO PORTFOLIOS. Any portion of the Trust Property
allocated to a particular Portfolio, and all consideration received by the Trust
for the issue or sale of Shares of such Portfolio, together with all assets in
which such consideration is invested or reinvested, all interest, dividends,
income, earnings, profits and gains therefrom, and proceeds thereof, including
any proceeds derived from the sale, exchange or liquidation of such assets, and
any funds or payments derived from any reinvestment of such proceeds in whatever
form the same may be, shall be held by the Trustees in trust for the benefit of
the holders of Shares of that Portfolio and shall irrevocably belong to that
Portfolio for all purposes, and shall be so recorded upon the books of account
of the Trust, and the Shareholders of such Portfolio shall not have, and shall
be conclusively deemed to have waived, any claims to the assets of any Portfolio
of which they are not Shareholders. Such consideration, assets, interest,
dividends, income, earnings, profits, gains and proceeds, together with any
General Items allocated to that Portfolio as provided in the following sentence,
are herein referred to collectively as "PORTFOLIO ASSETS" of such Portfolio, and
as assets "BELONGING TO" that Portfolio. If the Trust shall have or realize any
assets, income, interest, dividends, earnings, profits, gains or proceeds which
are not
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readily identifiable as belonging to any particular Portfolio (collectively
"GENERAL ITEMS"), the Trustees shall allocate such General Items to and among
any one or more of the Portfolios 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 Portfolio shall belong to and be part of the
Portfolio Assets of that Portfolio. Each such allocation by the Trustees shall
be conclusive and binding upon the Shareholders of all Portfolios for all
purposes.
(b) LIABILITIES OF PORTFOLIOS. The assets belonging to each Portfolio
shall be charged with the liabilities incurred by or arising in respect of that
Portfolio and all expenses, costs, charges and reserves attributable to that
Portfolio, and at any time at which the Trust shall have more than one
Portfolio, any general liabilities, expenses, costs, charges or reserves which
are not readily identifiable as pertaining to any particular Portfolio shall be
allocated and charged by the Trustees to and among any one or more of the
Portfolios 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 Portfolio are
herein referred to as "LIABILITIES OF" that Portfolio. Each allocation of
liabilities, expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the Shareholders of all Portfolios for all purposes.
The creditors of a particular Portfolio may look only to the assets of that
Portfolio to satisfy such creditors' claims.
(c) DIVIDENDS. Dividends and distributions on Shares of any Series may be
paid with such frequency as the Trustees may determine, which may be daily or
otherwise pursuant to a standing resolution or resolutions adopted only once or
with such frequency as the Trustees may determine, to the Shareholders of that
Series, from such of the income, accrued or realized, and capital gains,
realized or unrealized, and out of the assets belonging to the Portfolio to
which such Series pertains, as the Trustees may determine, after providing for
actual and accrued liabilities of that Portfolio. All dividends and
distributions on Shares of any Series shall be distributed pro rata to the
holders of Shares of that Series in proportion to the number of such Shares held
by such holders at the date and time of record established for the payment of
such dividends or distributions, except that the Trustees may determine, in
connection with any dividend or distribution program or procedure, that no
dividend or distribution shall be payable on newly-issued Shares as to which the
Shareholder's purchase order and/or payment have not been received by the time
or times established by the Trustees under such program or procedure, or that
dividends or distributions shall be payable on Shares which have been tendered
by the holder thereof for redemption or repurchase, but the redemption or
repurchase proceeds of which have not yet been paid to such Shareholder.
Dividends and distributions on the Shares of a Series may be made in cash or
Shares of that Series or a combination thereof as determined by the Trustees, or
pursuant to any program that the Trustees may have in effect at the time for the
election by each Shareholder of the mode of the making of such dividend or
distribution to that Shareholder. Any such dividend or distribution paid in
Shares will be paid at the net asset value thereof as determined in accordance
with SUBSECTION (g) of this SECTION 6.2.
(d) LIQUIDATION. In the event of the liquidation or dissolution of the
Trust, the Shareholders of each Portfolio with outstanding Shares shall be
entitled to receive, when and as declared by the Trustees, the excess of the
Portfolio Assets of such Portfolio over the liabilities of such Portfolio. The
assets so distributable to the Shareholders of any Portfolio shall be
distributed among such Shareholders in proportion to the number of Shares of
that Portfolio held by them and recorded on the books of the Trust. The
liquidation of any Portfolio may be authorized by vote of a Majority of the
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Trustees, subject to the affirmative vote of "a majority of the outstanding
voting securities" of the Series representing the beneficial interests in that
Portfolio, as the quoted phrase is defined in the 1940 Act, determined in
accordance with CLAUSE (iii) of the definition of "MAJORITY SHAREHOLDER VOTE" in
SECTION 1.4 hereof.
(e) REDEMPTION BY SHAREHOLDER. Each holder of Shares of any Series 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 next determined in accordance with SUBSECTION (g) 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. 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, that conditions exist with
respect to any Series of Shares which make payment wholly in cash unwise or
undesirable, the Trust may make payment wholly or partly in Securities or other
assets belonging to the Portfolio to which such Series pertains, at the value of
such Securities or assets used in such determination of net asset value.
Notwithstanding the foregoing, the Trust may postpone payment of the redemption
price and may suspend the right of the holders of Shares of any Series to
require the Trust to redeem such Shares during any period or at any time when
and to the extent permissible under the 1940 Act.
(f) REDEMPTION AT THE OPTION OF THE TRUST. Each Share of any Series 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 holders of the Shares of the Trust,
generally, or of any Portfolio thereof, or (ii) upon such other conditions with
respect to maintenance of Shareholder accounts of a minimum amount as may from
time to time be determined by the Trustees and set forth in the then current
Prospectus of such Portfolio. Upon such redemption the holders of the Shares so
redeemed shall have no further right with respect thereto other than to receive
payment of such redemption price.
(g) NET ASSET VALUE. The net asset value per Share of any Series at any
time shall be the quotient obtained by dividing the then value of the net assets
of the Portfolio to which such Series pertains (being the current value of the
assets then belonging to such Portfolio, less its then existing liabilities) by
the total number of Shares of that Series 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
Trustees may determine to maintain the net asset value per Share of any
Portfolio at a designated constant dollar amount and in connection therewith may
adopt procedures not inconsistent with the 1940 Act for the continuing
declaration of income attributable to that Portfolio as dividends payable in
additional Shares of that Portfolio at the designated constant dollar amount and
for the handling of any losses attributable to that Portfolio. Such procedures
may provide that in the event of any loss each Shareholder shall be deemed to
have contributed to the shares of beneficial interest account of that Portfolio
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 Portfolio to
be maintained, after reflecting such loss, at the designated constant dollar
amount. Each Shareholder of the Trust shall be deemed to have expressly agreed,
by investing in any Portfolio with respect to which the Trustees shall have
adopted
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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 Series will be recorded on the Share transfer records
of the Trust applicable to that Series only at such times as Shareholders shall
have the right to require the Trust to redeem Shares of that Series and at such
other times as may be permitted by the Trustees.
(i) EQUALITY. All Shares of each Series shall represent an equal
proportionate interest in the assets belonging to the Portfolio to which such
Series pertains (subject to the liabilities of that Portfolio), and each Share
of any such Series shall be equal to each other Share thereof. The Trustees may
from time to time divide or combine the Shares of any Series into a greater or
lesser number of Shares of that Series without thereby changing the
proportionate beneficial interest in the assets belonging to the Portfolio to
which such Series pertains, or in any way affecting the rights of the holders of
Shares of any other Series.
(j) RIGHTS OF FRACTIONAL SHARES. Any fractional Share of any Series of
Shares shall carry proportionately all the rights and obligations of a whole
Share of that Series, including rights and obligations with respect to voting,
receipt of dividends and distributions, redemption of Shares, and liquidation of
the Trust or of the Portfolio to which such Class pertains.
(k) CONVERSION RIGHTS. Subject to compliance with the requirements of the
1940 Act, the Trustees shall have the authority to provide that holders of
Shares of any Series shall have the right to convert said Shares into Shares of
one or more other Series of the Trust in accordance with such requirements and
procedures as the Trustees may establish.
SECTION 6.3 OWNERSHIP OF SHARE. The ownership of Shares shall be recorded
on the books of the Trust or of a Transfer Agent or similar agent for the Trust,
which books shall be maintained separately for the Shares of each Series that
has been authorized. Certificates evidencing the ownership of Shares need not be
issued except as the Trustees may otherwise determine from time to time, and the
Trustees shall have power to call outstanding Share certificates and to replace
them with book entries. The Trustees may make such rules as they consider
appropriate for the issuance of Share certificates, the use of facsimile
signatures, the transfer of Shares and similar matters. The record books of the
Trust as kept by the Trust or any Transfer Agent or similar agent, as the case
may be, shall be conclusive as to who are the Shareholders and as to the number
of Shares of each Series held from time to time by each such Shareholder.
The holders of Shares of each Portfolio shall upon demand disclose to the
Trustees in writing such information with respect to their direct and indirect
ownership of Shares of such Portfolio as the Trustees deem necessary to comply
with the provisions of the Internal Revenue Code, or to comply with the
requirements of any other authority.
SECTION 6.4 INVESTMENTS IN THE TRUST. The Trustees may accept investments
in any Portfolio of the Trust from such Persons and on such terms and for such
consideration, not inconsistent with the provisions of the 1940 Act, as they
from time to time authorize. The Trustees may authorize any Distributor,
Principal Underwriter, Custodian, Transfer Agent or other Person to accept
orders for the purchase of Shares that conform to such authorized terms and to
reject any purchase orders for Shares, whether or not conforming to such
authorized terms.
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SECTION 6.5 NO PRE-EMPTIVE RIGHTS. No Shareholder, by virtue of holding
Shares of any Series, shall have any pre-emptive or other right to subscribe to
any additional Shares of that Series, or to any shares of any other Series, 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 Portfolio, nor entitle the representative of any deceased
Shareholder to an accounting or to take any action in court or elsewhere against
the Trust or the Trustees, but only to the rights of said decedent under this
Declaration.
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ARTICLE 7
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SHAREHOLDERS' VOTING POWERS AND MEETINGS
----------------------------------------
SECTION 7.1 VOTING POWERS. The Shareholders shall have power to vote only
(i) for the election or removal of Trustees as provided in SECTIONS 4.1(c) and
(e) hereof, (ii) with respect to any contract with a Contracting Party as
provided in SECTION 5.2 hereof as to which Shareholder approval is required by
the 1940 Act, (iii) with respect to any termination or reorganization of the
Trust or any Portfolio to the extent and as provided in SECTIONS 9.1 and 9.2
hereof, (iv) with respect to any amendment of this Declaration to the extent and
as provided in SECTION 9.3 hereof, (v) to the same extent as the stockholders of
a Massachusetts business corporation as to whether or not a court action,
proceeding or claim should or should not be brought or maintained derivatively
or as a class action on behalf of the Trust or any Portfolio, or the
Shareholders of any of them (PROVIDED, HOWEVER, that a Shareholder of a
particular Portfolio shall not in any event be entitled to maintain a derivative
or class action on behalf of any other Portfolio 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, the By-Laws or any registration of
the Trust with the Commission (or any successor agency) or any State, or as the
Trustees may consider necessary or desirable. If and to the extent that the
Trustees shall determine that such action is required by law 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 Portfolio 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 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
Portfolios (including without limitation any distribution plan pursuant to Rule
12b-1 under the 1940 Act applicable to any such Portfolio), then only the
Shareholders of the Portfolios so affected shall be entitled to vote thereon.
SECTION 7.2 NUMBER OF VOTES AND MANNER OF VOTING; PROXIES. On each matter
submitted to a vote of the Shareholders, each holder of Shares of any Series
shall be entitled to a number of votes equal to the number of Shares of such
Series standing in such Shareholder's name on the books of the Trust. There
shall be no cumulative voting in the election of Trustees. Shares may be voted
in person or by proxy. A proxy with respect to Shares held in the name of two
(2) or more Persons shall be valid if executed by any one of them unless at or
prior to exercise of the proxy the Trust receives a specific written notice to
the contrary from any one of them. A proxy purporting to be executed by or on
behalf of a Shareholder shall be deemed valid unless challenged at or prior to
its exercise and the burden of proving invalidity shall rest on the challenger.
Until Shares are issued, the Trustees may exercise all rights of Shareholders
and may take any action required by law, this Declaration or the By-Laws to be
taken by Shareholders.
SECTION 7.3 MEETINGS. Meetings of Shareholders may be called by the
Trustees from time to time for the purpose of taking action upon any matter
requiring the vote or authority of the Shareholders as herein provided, or upon
any other matter deemed by the Trustees to be necessary
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or desirable. Written notice of any meeting of Shareholders shall be given or
caused to be given by the Trustees by mailing such notice at least seven (7)
days before such meeting, postage prepaid, stating the time, place and purpose
of the meeting, to each Shareholder at the Shareholder's address as it appears
on the records of the Trust. The Trustees shall promptly call and give notice of
a meeting of Shareholders for the purpose of voting upon removal of any Trustee
of the Trust when requested to do so in writing by Shareholders holding not less
than ten percent (10%) of the Shares then outstanding. If the Trustees shall
fail to call or give notice of any meeting of Shareholders for a period of
thirty (30) days after written application by Shareholders holding at least ten
percent (10%) of the Shares then outstanding requesting that a meeting be called
for any other purpose requiring action by the Shareholders as provided herein or
in the By-Laws, then Shareholders holding at least ten percent (10%) of the
Shares then outstanding may call and give notice of such meeting, and thereupon
the meeting shall be held in the manner provided for herein in case of call
thereof by the Trustees.
SECTION 7.4 RECORD DATES. For the purpose of determining the Shareholders
who are entitled to vote or act at any meeting or any adjournment thereof, or
who are entitled to participate in any dividend or distribution, or for the
purpose of any other action, the Trustees may from time to time close the
transfer books for such period, not exceeding thirty (30) days (except at or in
connection with the termination of the Trust), as the Trustees may determine; or
without closing the transfer books the Trustees may fix a date and time not more
than sixty (60) days prior to the date of any meeting of Shareholders or other
action as the date and time of record for the determination of Shareholders
entitled to vote at such meeting or any adjournment thereof or to be treated as
Shareholders of record for purposes of such other action, and any Shareholder
who was a Shareholder at the date and time so fixed shall be entitled to vote at
such meeting or any adjournment thereof or to be treated as a Shareholder of
record for purposes of such other action, even though he has since that date and
time disposed of his Shares, and no Shareholder becoming such after that date
and time shall be so entitled to vote at such meeting or any adjournment thereof
or to be treated as a Shareholder of record for purposes of such other action.
SECTION 7.5 QUORUM AND REQUIRED VOTE. A majority of the Shares entitled to
vote on a matter shall be a quorum for the transaction of business with respect
to such matter at a Shareholders' meeting, but any lesser number shall be
sufficient for adjournments. Any adjourned session or sessions may be held
within a reasonable time after the date set for the original meeting without the
necessity of further notice. A Majority Shareholder Vote at a meeting of which a
quorum is present shall decide any question, except when a different vote is
required or permitted by any provision of the 1940 Act or other applicable law
or by this Declaration or the By-Laws, or when the Trustees shall in their
discretion require a larger vote or the vote of a majority or larger fraction of
the Shares of one or more particular Series.
SECTION 7.6 ACTION BY WRITTEN CONSENT. Subject to the provisions of the
1940 Act and other applicable law, any action taken by Shareholders may be taken
without a meeting if a majority of Shareholders entitled to vote on the matter
(or such larger proportion thereof or of the Shares of any particular Series as
shall be required by the 1940 Act or by any express provision of this
Declaration or the By-Laws or as shall be permitted by the Trustees) consent to
the action in writing and if the writings in which such consent is given are
filed with the records of the meetings of Shareholders, to the same extent and
for the same period as proxies given in connection with a Shareholders' meeting.
Such consent shall be treated for all purposes as a vote taken at a meeting of
Shareholders.
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SECTION 7.7 INSPECTION OF RECORDS. The records of the Trust shall be open
to inspection by Shareholders to the same extent as is permitted stockholders of
a Massachusetts business corporation under the Massachusetts Business
Corporation Law.
SECTION 7.8 ADDITIONAL PROVISIONS. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
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ARTICLE 8
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LIMITATION OF LIABILITY: INDEMNIFICATION
----------------------------------------
SECTION 8.1 TRUSTEES, SHAREHOLDERS, ETC. NOT PERSONALLY LIABLE, NOTICE. The
Trustees and officers of the Trust, in incurring any debts, liabilities or
obligations, or in taking or omitting any other actions for or in connection
with the Trust, are or shall be deemed to be acting as Trustees or officers of
the Trust and not in their own capacities. No Shareholder shall be subject to
any personal liability whatsoever in tort, contract or otherwise to any other
Person or Persons in connection with the assets or the affairs of the Trust or
of any Portfolio, and subject to SECTION 8.4 hereof, no Trustee, officer,
employee or agent of the Trust shall be subject to any personal liability
whatsoever in tort, contract, or otherwise, to any other Person or Persons in
connection with the assets or affairs of the Trust or of any Portfolio, save
only that arising from his own willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of his office or the
discharge of his functions. The Trust (or if the matter relates only to a
particular Portfolio, that Portfolio) shall be solely liable for any and all
debts,claims, demands, judgments, decrees, liabilities or obligations of any and
every kind, against or with respect to the Trust or such Portfolio in tort,
contract or otherwise in connection with the assets or the affairs of the Trust
or such Portfolio, and all Persons dealing with the Trust or any Portfolio shall
be deemed to have agreed that resort shall be had solely to the Trust Property
of the Trust or the Portfolio Assets of such Portfolio, as the case may be, for
the payment or performance thereof.
The Trustees shall use their best efforts to ensure that every note, bond,
contract, instrument, certificate or undertaking made or issued by the Trustees
or by any officers or officer shall give notice that this Declaration is on file
with the Secretary of The Commonwealth of Massachusetts and shall recite to the
effect that the same was executed or made by or on behalf of the Trust or by
them as Trustees or Trustee or as officers or officer, and not individually, and
that the obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and property of
the Trust, or the particular Portfolio in question, as the case may be, but the
omission thereof shall not operate to bind any Trustees or Trustee or officers
or officer or Shareholders or Shareholder individually, or to subject the
Portfolio Assets of any Portfolio to the obligations of any other Portfolio.
SECTION 8.2 TRUSTEES' GOOD FAITH ACTION; EXPERT ADVICE: NO BOND OR SURETY.
The exercise by the Trustees of their powers and discretion hereunder shall be
binding upon everyone interested. Subject to SECTION 8.4 hereof, a Trustee shall
be liable for his own willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the office of
Trustee, and for nothing else, and shall not be liable for errors of judgment or
mistakes of fact or law. Subject to the foregoing, (i) the Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing of any officer,
agent, employee, consultant, Investment Adviser, Administrator, Distributor or
Principal Underwriter, Custodian or Transfer Agent, Dividend Disbursing Agent,
Shareholder Servicing Agent or Accounting Agent of the Trust, nor shall any
Trustee be responsible for the act or omission of any other Trustee: (ii) the
Trustees may take advice of counsel or other experts with respect to the meaning
and operation of this Declaration and their duties as Trustees,
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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 proper and timely request by the
Shareholder) shall assume the defense against such charge and satisfy any
judgment thereon, and the Shareholder or former Shareholder (or the heirs,
executors, administrators or other legal representatives thereof, or in the case
of a corporation or other entity, its corporate or other general successor)
shall be entitled (but solely out of the assets of the Portfolio of which such
Shareholder or former Shareholder is or was the holder of Shares) to be held
harmless from and indemnified against all loss and expense arising from such
liability.
SECTION 8.4 INDEMNIFICATION OF TRUSTEES, OFFICERS, ETC. Subject to the
limitations set forth hereinafter in this SECTION 8.4, the Trust shall indemnify
(from the assets of the Portfolio or Portfolios to which the conduct in question
relates) each of its Trustees and officers (including Persons who serve at the
Trust's request as directors, officers or trustees of another organization in
which the Trust has any interest as a shareholder, creditor or otherwise
[hereinafter, together with such Person's heirs, executors, administrators or
personal representative, referred to as a "COVERED PERSON'"]) against all
liabilities, including but not limited to amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and expenses, including
reasonable accountants' and counsel fees, incurred by any Covered Person in
connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, before any court or administrative or
legislative body, in which such Covered Person may be or may have been involved
as a party or otherwise or with which such Covered Person may be or may have
been threatened, while in office or thereafter, by reason of being or having
been such a Trustee or officer, director or trustee, except with respect to any
matter as to which it has been determined that such Covered Person (i) did not
act in good faith in the reasonable belief that such Covered Person's action was
in or not opposed to the best interests of the Trust or (ii) had acted with
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of such Covered Person's office (either and both
of the conduct described in CLAUSES (i) and (ii) of this sentence 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 (c) 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
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or penalties), may be paid from time to time by the Portfolio or Portfolios to
which the conduct in question related in advance of the final disposition of any
such action, suit or proceeding; PROVIDED, that the Covered Person shall have
undertaken to repay the amounts so paid to such Portfolio or Portfolios if it is
ultimately determined that indemnification of such expenses is not authorized
under this ARTICLE 8 and (i) the Covered Person shall have provided security for
such undertaking, (ii) the Trust shall be insured against losses arising by
reason of any lawful advances. or (iii) a majority of a quorum of the
disinterested Trustees, or an independent legal counsel in a written opinion,
shall have determined, based on a review of readily available facts (as opposed
to a full trial-type inquiry), that there is reason to believe that the Covered
Person ultimately will be found entitled to indemnification.
SECTION 8.5 COMPROMISE PAYMENT. As to any matter disposed of by a
compromise payment by any such Covered Person referred to in SECTION 8.4 hereof,
pursuant to a consent decree or otherwise, no such indemnification either for
said payment or for any other expenses shall be provided unless such
indemnification shall be approved (i) by a majority of a quorum of the
disinterested Trustees or (ii) by an independent legal counsel in a written
opinion. Approval by the Trustees pursuant to CLAUSE (i) or by independent legal
counsel pursuant to CLAUSE (ii) shall not prevent the recovery from any Covered
Person of any amount paid to such Covered Person in accordance with either of
such clauses as indemnification if such Covered Person is subsequently
adjudicated by a court of competent jurisdiction not to have acted in good faith
in the reasonable belief that such Covered Person's action was in or not opposed
to the best interests of the Trust or to have been liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such Covered
Person's office.
SECTION 8.6 INDEMNIFICATION NOT EXCLUSIVE, ETC. The right of
indemnification provided by this ARTICLE 8 shall not be exclusive of or affect
any other rights to which any such Covered Person may be entitled. As used in
this ARTICLE 8, a "DISINTERESTED" Person is one against whom none of the
actions, suits or other proceedings in question, and no other action, suit or
other proceeding on the same or similar grounds is then or has been pending or
threatened. Nothing contained in this ARTICLE 8 shall affect any rights to
indemnification to which personnel of the Trust, other than Trustees and
officers, and other Persons may be entitled by contract or otherwise under law,
nor the power of the Trust to purchase and maintain liability insurance on
behalf of any such Person.
SECTION 8.7 LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
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ARTICLE 9
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DURATION; REORGANIZATION; AMENDMENTS
------------------------------------
SECTION 9.1 DURATION AND TERMINATION OF TRUST. Unless terminated as
provided herein, the Trust shall continue without limitation of time and,
without limiting the generality of the foregoing, no change, alteration or
modification with respect to any Portfolio or Series of Shares shall operate to
terminate the Trust. The Trust may be terminated at any time by a Majority of
the Trustees, subject to the favorable vote of the holders of not less than a
Majority of the Shares outstanding and entitled to vote of each Portfolio of the
Trust, or by an instrument or instruments in writing without a meeting,
consented to by the holders of not less than a majority of such Shares, or by
such greater or different Vote of Shareholders of any Series as may be
established by the Certificate of Designation by which such Series was
authorized. Upon termination, after paying or otherwise providing for all
charges, taxes, expenses and liabilities, whether due or accrued or anticipated
as may be determined by the Trustees, the Trust shall in accordance with such
procedures as the Trustees consider appropriate reduce the remaining assets to
distributable form in cash, Securities or other property, or 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 Portfolio Assets of any
one or more Portfolios of the Trust, to another trust, partnership, association
or corporation organized under the laws of any state of the United States, or
may transfer the assets of one Portfolio of the Trust to another Portfolio of
the Trust, in exchange for cash, shares of the transferee or other Securities,
or to the extent permitted by law then in effect may merge or consolidate the
Trust or any Portfolio with any other trust or any corporation, partnership, or
association organized under the laws of any state of the United States, all upon
such terms and conditions and for such consideration when and as authorized by
vote or written consent of a Majority of the Trustees and approved by the
affirmative vote of the holders of not less than a majority of the Shares
outstanding and entitled to vote of each Portfolio whose assets are affected by
such transaction, or by an instrument or instruments in writing without a
meeting, consented to by the holders of not less than a majority of such Shares,
and/or by such other vote of any Series as may be established by the Certificate
of Designation with respect to such Series. Following such transfer, the
Trustees shall distribute the cash, shares or other Securities or other
consideration received in such transaction (giving due effect to the assets
belonging to and indebtedness of, and any other differences among, the various
Portfolios whose assets have so been transferred) among the Shareholders of such
Portfolios; and if all of the assets of the Trust have been so transferred, the
Trust shall be terminated. Nothing in this SECTION 9.2 shall be construed as
requiring approval of Shareholders for the Trustees to organize or assist in
organizing one or more corporations, trusts, partnerships, associations or other
organizations, and to sell, convey or transfer less than substantially all of
the Trust Property or the assets belonging to any Portfolio to such
organizations or entities.
SECTION 9.3 AMENDMENTS, ETC. All rights granted to the Shareholders under
this Declaration are granted subject to the reservation of the right to amend
this Declaration as herein provided, except that no amendment shall repeal the
limitations on personal liability of any Shareholder or Trustee or the
prohibition of assessment upon the Shareholders (otherwise than as
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permitted under SECTION 6.2(g)) without the express consent of each Shareholder
or Trustee involved. Subject to the foregoing, the provisions of this
Declaration (whether or not related to the rights of Shareholders) may be
amended at any time, so long as such amendment does not adversely affect the
rights of any Shareholder with respect to which such amendment is or purports to
be applicable and so long as such amendment is not in contravention of
applicable law, including the 1940 Act, by an instrument in writing signed by a
Majority of the Trustees (or by an officer of the Trust pursuant to the vote of
a Majority of the Trustees). Any amendment to this Declaration that adversely
affects the rights of all Shareholders may be adopted at any time by an
instrument in writing signed by a Majority of the Trustees (or by an officer of
the Trust pursuant to a vote of a Majority of the Trustees) when authorized to
do so by the vote in accordance with SECTION 7.1 hereof of Shareholders holding
a majority of all the Shares outstanding and entitled to vote, without regard to
Series, or if said amendment adversely affects the rights of the Shareholders of
less than all of the Portfolios, by the vote of the holders of a majority of all
the Shares entitled to vote of each Portfolio so affected. Subject to the
foregoing, any such amendment shall be effective when an instrument stating the
terms thereof and a certificate (which may be a part of such instrument) to the
effect that such amendment has been duly adopted and setting forth the
circumstances thereof, shall have been executed and acknowledged by a Trustee or
officer of the Trust.
SECTION 9.4 FILING OF COPIES OF DECLARATION AND AMENDMENTS. The original or
a copy of this Declaration and of each amendment hereto (including each
Certificate of Designation and Certificate of Termination), shall be kept at the
office of the Trust where it may be inspected by any Shareholder, and one copy
of each such instrument shall be filed with the Secretary of The Commonwealth of
Massachusetts, as well as with any other governmental office where such filing
may from time to time be required by the laws of Massachusetts, but such filing
shall not be a prerequisite to the effectiveness of this Declaration or any such
amendment. A restated Declaration, integrating into a single instrument all of
the provisions of this Declaration which are then in effect and operative, may
be executed from time to time by a Majority of the Trustees and shall, upon
filing with the Secretary of The Commonwealth of Massachusetts, be conclusive
evidence of all amendments contained therein and may thereafter be referred to
in lieu of the original Declaration and the various amendments thereto.
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ARTICLE 10
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MISCELLANEOUS
-------------
SECTION 10. 1 GOVERNING LAW. This Declaration of Trust is executed and
delivered in The Commonwealth of Massachusetts and with reference to the laws
thereof, and the rights of all parties and the construction and effect of every
provision hereof shall be subject to and construed according to the laws of said
Commonwealth.
SECTION 10.2 COUNTERPARTS. This Declaration of Trust and any amendment
thereto may be simultaneously executed in several counterparts, each of which so
executed shall be deemed to be an original, and such counterparts, together,
shall constitute but one and the same instrument, which shall be sufficiently
evidenced by any such original counterpart.
SECTION 10.3 RELIANCE BY THIRD PARTIES. Any certificate executed by an
individual who. according to the records in the office of the Secretary of The
Commonwealth of Massachusetts appears to be a Trustee hereunder, certifying to:
(a) the number or identity of Trustees or Shareholders, (b) the due
authorization of the execution of any instrument or writing, (c) the form of any
vote passed as a meeting of Trustees or Shareholders, (d) the fact that the
number of Trustees or Shareholders present at any meeting or executing any
written instrument satisfies the requirements of this Declaration of Trust, (e)
the form of any By-Law adopted, or the identity of any officers elected, by the
Trustees, or (f) the existence or non-existence of any fact or facts which in
any manner relate to the affairs of the Trust, shall be conclusive evidence as
to the matters so certified in favor of any Person dealing with the Trustees, or
any of them, and the successors of such Person.
SECTION 10.4 REFERENCES, HEADINGS. The masculine gender shall include the
feminine and neuter genders. Headings are placed herein for convenience of
reference only and shall not be taken as a part of this Declaration of Trust, or
control or affect the meaning, construction or effect hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set her hand and seal, for
herself and her assigns, and has thereby accepted the Trusteeship as the Initial
Trustee of Ashport Mutual Funds hereby granted and agreed to the provisions
hereof, all as of the day and year first above written.
--------------
Xxxxx X. Xxxxx
Dated: May 24, 2001.
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ACKNOWLEDGMENT
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M A S S A C H U S E T T S
-------------------------
Essex, ss.: May 24. 2001
Then personally appeared the above named Xxxxx X. Xxxxx and acknowledged
the foregoing instrument to be his free act and deed.
Before me,
------------------------------------
Notary Public
My Commission Expires:
[NOTARIAL SEAL]
