EX99.23(a)(1)
X. X. XXXXXX BOND TRUST
RESTATED PROVISIONS OF
AGREEMENT AND DECLARATION OF TRUST
WHEREAS, X. X. Xxxxxx Bond Trust is a common law trust organized and existing
under the laws of the state of Missouri, and,
WHEREAS, numerous amendments have been made to the Agreement and Declaration
of Trust dated November 2, 1944, since its inception, and as a result, the
said Agreement and Declaration of Trust has become cumbersome and confusing
to read and understand, and
WHEREAS, the Trustees desire to incorporate the Agreement and Declaration of
Trust together with the amendments into a single document;
NOW, THEREFORE, the Agreement and Declaration of Trust dated November 2,
1944, is hereby amended and restated to read as follows:
ARTICLE I
Concerning the Trust and its Purposes and Powers
Section 1. The Trust hereby created shall be known as X.
X. XXXXXX BOND TRUST. For convenience it is referred to in the Agreement and
Declaration of Trust as the "Trust." The Trustees shall have the right and
power from time to time to change the name of the Trust by resolution adopted
at any regular or special meeting of the Trustees.
Section 2. The objects and purposes of the Trust shall be to
establish and maintain selected and diversified investments in investment
securities, to supervise and manage said investments, and, in furtherance but
not in limitation of the foregoing, to acquire, own, hold and dispose of
investment securities as defined in ARTICLE II hereof.
Section 3. The Trustees acting for and in behalf of the Trust shall
have power and authority:
(a) to buy, sell, exchange, own, hold, transfer, assign, negotiate
and otherwise acquire or dispose of and deal in and with
investment securities, and while the owners thereof to exercise
all the rights, powers and privileges of ownership thereof,
including, without limitation, the right and privilege of voting,
in person or by proxy, upon all voting securities at any time and
from time to time included among the assets and properties of the
Trust; and
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(b) in general to carry on any other activity in connection with the
foregoing and to do any and all things necessary to promote the
objects and purposes of the Trust to the same extent as they
might or could to in respective personal and individual
capacities.
Section 4. Notwithstanding anything contained in this ARTICLE I or
elsewhere in the Agreement and Declaration of Trust, the Trustees acting for
and in behalf of the Trust may not and shall not:
(a) purchase any investment security for credit or on margin, except
such short-term credits as are necessary for the clearance of
transactions;
(b) participate on a joint or a joint-and-several basis in any
trading account in securities;
(c) sell any securities short;
(d) borrow money, securities or other property in any event or for
any purpose whatsoever, or issue any security senior to the
shares authorized by the Trust Indenture;
(e) lend money, securities or other assets of the Trust for any
purpose whatsoever, provided however, that the acquisition of any
publicly distributed securities shall not be held or construed to
be the making of a loan;
(f) mortgage, pledge, hypothecate or encumber in any manner
whatsoever any investment securities at any time owned or held by
the Trust;
(g) underwrite or participate in the underwriting of any securities;
(h) purchase shares of other investment companies except in the open
market at ordinary broker's commission or pursuant to a plan of
merger or consolidation;
(i) acquire any security issued by any issuer in which an officer,
director or stockholder of such issuer is a Trustee of the Trust
or an officer or director of a principal underwriter (as defined
in the Investment Company Act of 1940) if after the purchase of
such security one or more of the Trustees owns beneficially more
than one-half (1/2) of one per centum (1%) of the capital stock
of such issuer and such Trustees together own beneficially more
than five per centum (5%) of the capital stock of such issuer;
(j) acquire any security of another issuer if immediately after and
as a result of such acquisition the market value of such
securities of such other issuer shall
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exceed five per centum (5%) of the market value of the total
assets of the Trust or the Trust shall own more than ten per
centum (10%) of the outstanding voting securities of such issuer.
This restriction does not apply to securities issued by the
United States or any state, county, or municipality thereof;
(k) invest more than 25% of the value of its assets in any one
industry;
(1) engage in the purchase or sale of real estate or commodities;
(m) invest in companies for the purpose of exercising control of
management;
(n) purchase any securities which are subject to legal or contractual
restrictions; i.e., restricted securities which may not be
distributed publicly without registration under the Securities
Act of 1933.
ARTICLE II
Definitions of Terms and Rules of Construction
Section 1. Definition of Certain Terms. As used in this
Declaration of Trust, the terms set forth below shall have the following
meanings:
(a) The "Act" refers to the Investment Company Act of 1940, as
amended.
(b) "Beneficial Shares," "Shares of Beneficial Interest" or "Shares"
means the equal proportionate units of interest of any of the
classes or series into which the beneficial interest of any class
or series of the Trust shall be divided from time to time and
includes fractions of Beneficial Shares as well as whole
Beneficial Shares.
(c) "Beneficial Shareholder" or "Shareholder" means a record owner
of Beneficial Shares of a class or series of the Trust.
(d) The term "business day" means a day on which the New York Stock
Exchange is open for business.
(e) The term "distribution" means an actual or constructive payment
to a Beneficial Shareholder in cash.
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(f) The term "gross income" as used herein is hereby defined to mean the
gross earnings of any class or series of the Trust from all sources,
other than and excluding gains and losses realized from sales or other
dispositions of that class or series' assets.
(g) "Investment securities" shall be deemed to mean and include: (a)
shares of capital stock, bonds, debentures, debenture stocks,
participation certificates, script, notes and other securities,
obligations and evidences of debt of corporations; (b) certificates of
deposit, warrants and rights to subscribe for or purchase any of the
foregoing, including commercial paper, bankers' acceptances, variable
rate master demand notes and repurchase agreements; (c) obligations of
the United States of America or of any state, county, township, school
district, municipality or political subdivision thereof, and
obligations guaranteed as to both principal and interest by the United
States of America; (d) U.S. dollar-denominated securities issued in the
United States by (1) the Canadian Federal Government or by Canadian
Provincial Governments including any agency or instrumentality of
either principal and interest by either government, and (2) Canadian
corporations.
(h) The term "net income", as used herein, is hereby defined to mean gross
income less taxes, expenses and reserves therefor including, without
limitation, all fees and other costs and charges properly charged for
the administration and maintenance of the Trust, or a class or series.
(i) "Person" shall mean a natural person, a corporation, a partnership, an
association, a joint-stock company, a trust, a fund or any organized
group of persons whether incorporated or not.
(j) The term "Supplemental Declaration of Trust" or "Supplemental
Declaration" means a document adopted by the Trustees at any regular or
special meeting of the Trustees which sets forth a description of any
Beneficial Shares or class or series of Beneficial shares to be issued
under this Declaration of Trust, and which shall be annexed to this
Declaration and made a part of
it.
(k) The "Trustees" means the original individual Trustees in their capacity
as trustees of the Trust and their successor or successors for the time
being in office as such trustees.
(1) The terms "assignment," "interested person," a "majority vote of
shareholders" and "Principal Underwriter" shall have the respective
meanings set forth in Section
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2(a)(4), Section 2(a)(19), Section 2(a)(42) and Section
2(a) (29) of the Act, and "series trust" shall mean an entity
such as that described in Section 18(f)(2) of the Act, and
subject to Rule 18f-2 thereunder.
Section 2. Construction. The following rules shall
apply concerning interpretation and construction of this Declaration of
Trust:
(a) The purpose of this Declaration of Trust is to establish the
relationship of Trustee and Beneficiary between the Trustees and
Shareholders defined herein. This Declaration of Trust shall not
be construed to create any other type of relationship or entity,
including but not limited to, a general or limited partnership,
corporation, or joint stock association.
(b) This Declaration of Trust shall be construed under the laws of
the State of Missouri.
(c) Unless clearly indicated otherwise within the context of this
Declaration of Trust, the masculine for of words used herein
shall be deemed to include the feminine and neuter, and the
singular shall be deemed to include the plural.
(d) Headings of Articles, Sections, Paragraphs, or other subdivisions
hereof are for convenience of reference only, and shall not be
deemed to be of the substance of this Declaration of Trust.
Headings are placed herein for convenience of reference only and
in case of any conflict, the test of this instrument rather than
the headings, shall control.
(e) In this instrument or in any Supplemental Declaration of Trust,
references to this instrument and all expressions like "herein,"
"hereof" and "hereunder," shall be deemed to refer to this
instrument as amended, restated or affected by any such
Supplemental Declaration of Trust.
ARTICLE III
Concerning the Shareholders and their
Shares and Certificates
Section 1. Shares of Beneficial Interest. The beneficial interest
in the Trust shall at all times be divided into an unlimited number of
transferable Beneficial Shares of one or more classes or series as the
Trustees shall designate from time to time by Supplemental Declaration. Each
such Beneficial Share of each such class or series shall represent an
interest in that class or series of the Trust equal with each other
Beneficial Share of such class or series then outstanding. No Beneficial
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Share shall have priority over any other Beneficial Share of the same class
or series. No class or series of Beneficial Shares shall have any preference
or priority to general assets of the Trust over any other class or series of
Beneficial Shares. The Trustee may, from time to time, divide or combine the
Beneficial Shares of any class or series into a greater or lesser number of
Beneficial Shares without thereby changing the proportionate beneficial
interests in such class or series, or the respective priority or preference
of such Shares and any other class or series.
Section 2. Purchase of Beneficial Shares in the Trust. The Trustees
shall have power from time to time to accept from any person, firm or
corporation, including any or all of the original Shareholders, contributions
in cash to the Trust from such persons and on such terms as they may from
time to time authorize. Each contribution shall be credited to the
individual Beneficial Shareholder's account in the form of full and frac-
tional Beneficial Shares of the Trust, in such class or series as the
purchaser shall select, at the net asset value per Beneficial Share next
determined for such class or series after receipt of the contribution.
Shares shall be issued hereunder only to or through a principal underwriter
duly selected and appointed as provided by law, except that in the event of
an offer of exchange or plan of reorganization permitted by law, shares may
be issued by the Trustees without utilizing the services of a principal un-
derwriter, and for a consideration other than cash provided that in no event
shall shares be issued for consideration other than cash provided that in no
event shall shares be issued for consideration less than the prevailing net
asset value of the shares already issued and outstanding as computed at a
time in accordance with the pricing provisions hereinbefore set out in this
section. Shares shall be issued only on business days. The Trustees may,
in their sole discretion, promulgate rules, regulations and procedures
governing purchases of shares in the Trust or impose a sales charge or such
other charges as they deem necessary or proper, upon investments in the
Trust.
Section 3. Ownership of Beneficial Shares. The ownership of
Beneficial Shares shall be recorded on the books of the Trust or its transfer
agent. The Trustees may make such rules as they consider appropriate for the
transfer of Beneficial Shares and similar matters. The record books of the
Trust or any transfer agent, shall be conclusive as to who are the holders of
Beneficial Shares and as to the number of Beneficial Shares held by each
Beneficial Shareholder. The Trustees, in their discretion, may authorize the
issuance of beneficial share certificates and may promulgate appropriate
rules and regulations with respect thereto.
Section 4. Certificate Register. The Trustees shall keep and
maintain a certificate register and shall enter therein the name and address
of each registered owner or holder of certificates and with respect to each
certificate the date of issue
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and the number of Shares represented thereby. The Trustees shall be entitled
for all purposes to treat and deem the addresses appearing on such
certificate register as the true and correct addresses of the respective
Shareholders. Subject to the provisions of ARTICLE IV of this Agreement and
Declaration of Trust, the Trustees shall treat the Shareholder in whose name
any certificate is registered as the absolute owner of such certificate for
all purposes.
Section 5. Pre-emptive Rights. Beneficial Shareholders shall have
no pre-emptive or other right to subscribe to any additional Beneficial
Shares or other securities issued by the Trust or the Trustees.
Section 6. Decedent Shareholder. The death of a Shareholder
shall not operate to terminate the Trust nor entitle the representatives of
the deceased Shareholder to an accounting or to take any action against the
Trustees or the Trust except in accordance with the provisions of the
Agreement and Declaration of Trust. The Shareholder shall not be liable for
any assessments or for the payment of any sum or sums of money other than the
purchase price of their respective Shares as set forth and provided herein.
Section 7. Record Date. The Trustees shall not have power to
close the transfer books for any purpose but shall be required, in lieu of
closing the transfer books, to fix in advance a date, not exceeding forty-
five (45) days preceding the date of any meeting of the Shareholders or the
date for the payment of any dividend, as a record date for determination of
the Shareholders entitled to notice of and to vote at any such meeting, or
entitled to receive payment of any such dividend; and in such case such
Shareholders, and only such Shareholders, as shall be Shareholders of record
on the record date so fixed, shall be entitled to notice of and to vote at
such meeting and any adjournment thereof, or to receive payment of such
dividend, notwithstanding any transfer of any Shares after such record date
fixed as aforesaid.
ARTICLE IV
Shareholders may designate a Beneficiary
Section 1. Any Shareholder shall have the right at any time to
designate a beneficiary or beneficiaries with respect to any Shares
registered in the name of such Shareholder. Such designation shall be
substantially of the form and tenor as the Trustees shall establish by rule
and shall not be valid until registered with the Trustees and such
registration evidenced by signature in behalf of the Trustees by one of their
authorized members, officers or agents.
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Section 2. Any such designation of beneficiary shall be revocable
by the Shareholder in his sole. discretion at any time during his lifetime,
provided that the Shareholder shall give to the Trustees written notice of
any such revocation and shall present his certificate to the Trustees for
cancellation of the designation of beneficiary thereon. The surrender of any
certificate by the registered owner or holder thereof for transfer shall,
ipso facto, cancel and revoke any designation of beneficiary with respect
thereto. In event of the death of the Shareholder and upon proof thereof
satisfactory to the Trustees the registered beneficiary alone shall be
entitled to have and to exercise all the rights appertaining to such
certificate and the Shares represented thereby.
Section 3. In the event the beneficiary shall predecease the
Shareholder, then the designation of beneficiary and all rights thereunder of
the deceased beneficiary or his estate or assigns shall immediately terminate
and be canceled.
ARTICLE V
Concerning the Net Asset Value of Shares
The net asset value of a Share of each class or series of the Trust
outstanding shall be determined not less frequently than the close of each
business day in accordance with statutes, regulations and rules of
appropriate governmental or regulatory agencies or authorities, applicable to
regulated investment companies and such rules and regulations as The Trustees
in their discretion, may promulgate.
ARTICLE VI
Shares are Redeemable
Section 1. Redemption of Beneficial Shares. A Beneficial
Shareholder of the Trust shall have the right, subject to the provisions of
this Article VI, to require the Trust to redeem his full and fractional
Beneficial Shares at a redemption price equal to the net asset value per
Beneficial Share of such class or series next determined after receipt of a
request to redeem. The Trustees shall establish such rules and procedures as
they deem appropriate for the redemption of Beneficial Shares provided that
all redemptions are made in accordance within the provisions of the Act, as
amended, and rules and regulations thereunder.
Section 2. Any Shareholder may surrender to the Trustees on any
business day, for redemption;
(a) a certificate or certificates representing Shares, bearing
thereon a demand for redemption, in substantially the form as the
Trustees shall establish by rule or regulation, duly signed by
such Shareholder, or;
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(b) in the case where Shares are held in open account and no
certificates have been issued, a demand for redemption in
substantially the form as the Trustees shall establish by rule or
regulation, duly signed by such Shareholder; and
the Trustees shall redeem the same and pay therefor, out of the assets of the
Trust, to such Shareholder or other person entitled thereto, in cash, the net
asset value of the surrendered Shares next computed and effective after
acceptance of a proper redemption request, less expenses and taxes, if any,
incidental to such surrender.
Section 3. Payment for Shares surrendered for redemption shall be
made as soon thereafter as is practicable and in any event, shall be made
within seven (7) calendar days after such surrender for redemption, except
that the Trustees may suspend the right of redemption or postpone the date of
payment in whole or in part (i) during any period that the New York Stock
Exchange is closed (other than customary weekend or holiday closing), or
trading on the Exchange is restricted as determined by the Securities and
Exchange Commission (the "Commission"), (ii) During any period when an
emergency exists as defined by the rules of the Commission, as a result of
which it is not reasonably practicable for the Fund to dispose of securities
owned by it, or fairly to determine the value of its assets, and (iii) for
such other periods as the Commission may permit. Such suspension shall take
effect at such time as the Trustees shall specify but not later than the
close of business on the business day following the declaration of
suspension, and thereafter there shall be no right of redemption or payment
until the Trustees shall declare the suspension at an end, except that the
suspension shall terminate in any event on the first day on which said Stock
Exchange shall have reopened for unrestricted trading or the period specified
in (ii) or (iii) above shall have expired. In the case of suspension of the
right of redemption, a Beneficial Shareholder may either withdraw his request
for redemption or receive payment based on the net asset value next
determined after the termination of the suspension.
Section 4. The Board of Trustees may, in its discretion, establish
from time to time uniform rules for the closing of shareholder accounts, the
value of which, by virtue of a partial liquidation, has fallen below the
minimum initial amount required of new Shareholders.
ARTICLE VII
Concerning the Title and Custody of Trust Assets
Section 1. The legal title to the Trust assets and all avails and
proceeds thereof shall at all times be vested in the Trustees.
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Section 2. Notwithstanding the provisions of Section 1 of this
ARTICLE VII, the Trustees shall deposit with the Custodian all monies and
other property received by them hereunder, and the Custodian shall receive
and keep the same as a special Trust Estate in the name of "X. X. Xxxxxx Bond
Trust" or in such other name or names as the Trust may bear from time to
time. The Trust Estate may be kept in one or more accounts as the Trustees
shall designate. The Trustees may cause any of the trust property to be
transferred into the name of, or to be acquired or held in the name of, the
Custodian, or in the name of any nominee or nominees of the Custodian
satisfactory to the Trustees. The Custodian may from time to time deposit
monies of the Trust in such other banks or trust companies and in such
amounts as the Trustees may in writing direct, but subject only to the draft
or order of the Custodian. The Custodian shall deliver to the Trustees, or
on their written order and in accordance therewith, any or all of the
properties and monies of said Trust Estate, as the Trustees may at any time
in writing require, but only in the following manner and subject to the
following provisions:
(a) In case of sale of any of said Trust Estate the broker's
notification of sale, in customary form, shall be delivered to
the Custodian duly identified and verified by the Trustees or by
their duly appointed and authorized agent or representative; and
concurrently therewith there shall be delivered to the Custodian
a check, draft or order for the payment to the Custodian of the
net proceeds of said sale as shown by said broker's notification.
Such net proceeds shall be received by the Custodian and credited
to said Trust Estate.
(b) In case of exchange of any of said Trust Estate, the property or
assets to be received in exchange therefor, or evidence of title
thereof, shall be delivered to the Custodian before the Custodian
shall part with custody of the property so to be exchanged;
provided, however, that if any plan of exchange shall require the
deposit of property with a depository, the Custodian, upon in-
structions from the Trustees, may deposit with such depository
the trust property to be exchanged, taking the receipt of such
depository therefor.
(c) In case funds are needed for the purpose of paying a dividend
declared by the Trustees upon the Shares of the Trust, the
certificate of the Trustees stating the amount necessary to pay
the same shall be furnished to the Custodian before the Funds are
withdrawn from said Trust Estate.
(d) In case Shares are surrendered to the Trustees for redemption in
accordance with the provisions of ARTICLE VI of the Agreement and
Declaration of Trust, evidence satisfactory to the Custodian of
the surrender and can-
PAGE 10
cellation of said Shares and the certificate or certificates
evidencing the same shall be furnished to the Custodian before
the redemption price of said Shares is withdrawn or disbursed out
of the Trust assets.
(e) In case funds are needed for the purpose of paying taxes,
compensation of the Custodian and Investment Adviser, if any,
management fees and expenses, if any, of the Trustees, or any
other expenses of administration and operation of the Trust and
the care, preservation and maintenance of the Trust assets, or
for any other lawful purpose hereunder, the Trustees shall
deliver to the Custodian their certificate specifying the amount
so to be withdrawn and the person or persons to whom the same
shall be paid.
The Custodian shall have no duty or responsibility whatsoever relative to
monies or other property received by the Trustees and not deposited with the
Custodian. The Custodian shall have no duty or responsibility whatsoever
with respect to the disposition of monies or other property delivered by the
Custodian to or on the order of the Trustees in accordance with the foregoing
provisions of this Section 2, and the Custodian shall not be required to
request or receive any accounting from the Trustees. The Custodian shall
receive all dividends, interest and other income paid to it upon and with
respect to properties and assets of the Trust held by the Custodian, and
shall properly credit such receipts to said Trust Estate.
Section 3. The Custodian shall not have any duty or liability with
respect to the management of the Trust assets, but shall be liable only for
the custody and safekeeping thereof in accordance with the provisions of
Section 2 of this ARTICLE VII. If any action directed to be taken by the
Custodian involves probable expense, costs or liability upon the part of the
Custodian, the Custodian may require the Trustees to indemnify it with
respect thereto, and the furnishing of such indemnity shall be a condition
precedent to the obligation of the Custodian to comply with such directions.
The Custodian shall not be required to look into or investigate the propriety
of any action which the Trustees shall direct it to take with respect to the
Trust assets nor to inquire into or ascertain whether such action is within
the powers of the Trustees, it being specifically provided hereby that full
responsibility for the acts of the Trustees shall be borne by the Trustees
themselves and shall not in any event be borne either in whole or in part by
the Custodian.
Section 4. The Custodian shall not at any time or for any purpose
be required to determine, ascertain, calculate, inquire into or investigate
the net asset value of the Trust or the net asset value of the Shares, but
the duty to determine, ascertain and calculate the net asset value of the
Trust and the net asset value of the Shares from time to time shall rest ex-
clusively upon the Trustees. In case any action or decision of
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the Custodian is conditioned in any way upon or has reference to the net
asset value of the Shares, the Custodian shall be entitled to, and shall,
rely conclusively upon the certificate of the Trustees with respect to such
net asset value, and the Custodian shall not be required to make any inquiry
or investigation into such net asset value other than to require the
certificate of the Trustees with respect thereto.
Section 5. The fiscal year of the Trust shall commence on the first
day of December in each year, or such other date as the Trustees may set from
time to time by resolution.
Section 6. Not less often than annually the Trustees shall cause an
audit to be made of the assets of the Trust and of the books, records and
accounts of the Trustees and the Custodian by independent certified public
accountants. Not less often than semiannually the Trustees shall prepare and
submit to each Shareholder a report of the operations of the Trust for the
preceding semiannual period, which reports shall set forth such information
and financial statements as may be required by law or regulation.
Section 7. The appointment of independent certified public
accountants shall be made each year by the Trustees in the manner prescribed
by law, and each such appointment shall be subject to ratification by the
Shareholders. Each such appointment shall be conditioned upon the right of
the Trust by a majority vote of the Shareholders to terminate such employment
forthwith without penalty. Each such accountant's report and certificate
rendered shall be addressed both to the Trustees and to the Shareholders.
ARTICLE VIII
Concerning the Investment and Management of
the Trust Assets
Section 1. There shall be vested in the Trustees, subject to the
provisions of the Agreement and Declaration of Trust, the power and authority
to make all decisions, determinations and conclusions with respect to the
investment and reinvestment of the assets of the Trust, including, without
limitation, the power and authority to designate the investment securities to
be purchased from time to time and the amount or quantity thereof to be
purchased, the securities to be sold from time to time and the amount or
quantity to be sold, the amount or quantity of cash to kept on hand without
investment, and determinations concerning the selection, acquisition, holding
and disposition of the Trust assets, and in general the power to fix and
determine the investment policy of the Trust.
Section 2. The Trustees, in their discretion, subject to
ratification by the Shareholders, or the Shareholders by majority vote, at
any annual or special meeting, may appoint an Investment
PAGE 12
Adviser duly and legally registered as such according to the provisions of
the laws of the United States. There may be delegated to any Investment
Adviser so elected and appointed the power and authority to make all
decisions, determinations and conclusions with respect to the investment and
reinvestment of the assets of the Trust as set out in the foregoing Section
1. The Trustees and the Custodian shall be fully and completely protected in
acting upon any and all of the recommendations of the Investment Adviser from
time to time appointed and acting as such under the provisions of the
Agreement and Declaration of Trust, subject always to the provisions of the
Agreement and Declaration of Trust, provided, however, that the Trustees and
not the Investment Adviser, in the absence of willful malfeasance or
misfeasance, bad faith or gross negligence by the Investment Adviser in the
performance of if its duties, or reckless disregard by the Investment Adviser
of its obligations and duties to the Trust, shall be solely responsible for
complying with the requirements of Section 4, ARTICLE I of the Agreement and
Declaration of Trust. Neither the Trustees, Custodian nor such Investment
Adviser shall be liable or responsible for any errors or mistakes of judgment
in connection with the management of the Trust Assets or the determination of
the investment policy of the Trust, but shall be liable only for their own
respective willful misconduct or gross negligence; provided always, that
nothing herein contained shall protect or purport to protect any Trustee
against any liability to the Trust or to its Shareholders by reason of his
willful malfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office.; and provided, further, that
nothing herein contained shall protect or purport to protect the Investment
Adviser against any liability to the Trust or its Shareholders by reason of
its willful misfeasance, bad faith, or gross negligence in the performance of
its duties or by reason of its reckless disregard of its obligations and
duties hereunder or under its contract of employment.
Section 3. Every Investment Adviser elected or appointed according
to the provisions of the foregoing Section 2 shall hold office subject to the
rights of the Trustees and the Shareholders to terminate the employment of
such Investment Adviser and to remove the same. Any Investment Adviser
appointed and acting as such under the provisions of the Agreement and
Declaration of Trust shall be permitted to resign upon giving to the Trustees
written notice thereof not less than thirty (30) days prior to the date upon
which such resignation shall be effective. At or prior to the effective date
of any such resignation the Investment Adviser so resigning shall turn over
and deliver to the Trustees or to any successor Investment Adviser designated
by the Trustees, all property and all books, records and documents and
papers, if any, belonging to the Trust.
Section 4. The Trustees shall at all times and with diligence keep
the Investment Adviser, if any, then appointed and acting as such hereunder
fully advised and informed concerning
PAGE 13
the business and affairs of the Trust so that the Investment Adviser shall at
all times have on hand or available all such facts, information and data as
may be necessary or desirable in order to consider, determine and decide the
investment policy of the Trust.
Section 5. No Investment Adviser at any time appointed and acting
hereunder shall have the right by any means or method to assign its contract
of employment with the Trust or its position or employment thereunder or
under this Agreement and Declaration of Trust to any other person, firm or
corporation and if any Investment Adviser shall attempt or purport to assign
its contract of employment or its position or employment thereunder or
hereunder, the same shall, ipso facto, terminate its said contract and
employment. For all purposes of this section the words "assignment" and
"assign" shall include any direct or indirect transfer or hypothecation of a
contract or any position or employment thereunder or hereunder, or of a
controlling block if the assignor's outstanding voting securities by a
security holder of the assignor; but shall not include an assignment of
partnership interests incidental to the death or withdrawal of a minority of
the members of the partnership having only a minority interest in the
partnership business or the admission to the partnership of one or more
members who, after such admission, shall be only a minority of the members
and shall have only a minority interest in the business.
Section 6. The Investment Adviser, if any, appointed and acting as
such under the provisions of the Agreement and Declaration of Trust shall be
entitled to receive reasonable compensation for services performed, and such
compensation or the rate thereof shall be fully set forth in the contracts of
employment submitted to the Shareholders for ratification from time to time.
Such compensation, or the rate thereof, shall always be consistent and
commensurate with the rate of compensation currently paid by others for
services of like or similar nature.
Section 7. The Trustees elected and acting as such under the
provisions of the Agreement and Declaration of Trust shall be entitled to
receive reasonable compensation for their services with respect to the
investment, reinvestment and general management of the assets of the Trust.
In addition, they shall be responsible for providing the Trust with such
administration and professional services as it may require and may pay
reasonable compensation for such services to themselves, their agents and
such independent contractors as they deem necessary.
ARTICLE IX
Shareholders' Meetings and Voting Rights
Section 1. An annual meeting of the Shareholders shall
be held each February on such date as the Trustees may select.
PAGE 14
Section 2. Special meetings of the Shareholders may be called by
the Trustees from time to time upon their own motion, and shall be called by
the Trustees from time to time upon written request of any ten (10)
Shareholders who possess the following qualifications:
(a) They must have been Shareholders of record for at least six (6)
months; and
(b) They must hold in the aggregate, shares having a net asset value
of at least $25,000.00 or their Shares must amount in the
aggregate to not less than one per centum (1%) of the number of
Shares then issued and outstanding hereunder, whichever shall be
the lesser.
Section 3. Notice. Not less than ten nor more than ninety days
before the date of every annual or special Shareholders' meeting, the
Trustees shall give to each Shareholder entitled to vote at such meeting
written notice stating the time and place of the meeting and, in the case of
a special meeting, the purpose or purposes for which the meeting is called.
Business transacted at any special meeting of Shareholders shall be limited
to the purposes stated in the notice.
Section 4. At each meeting of the Shareholders a majority in number
of the issued and outstanding Shares entitled to vote thereat, represented by
the registered owners and holders thereof in person or by proxies, shall be
requisite and shall constitute a quorum for the transaction of business. All
actions and decisions done or taken by the holders of a majority of the
Shares present in person or by proxies at any meeting at which a quorum for
the transaction of business is present shall be valid to all intents and
purposes and shall be deemed to be the action of the Shareholders in like
manner as if done or taken by the holders of all of the issued and
outstanding Shares. At each meeting of the Shareholders every Shareholder
having the right to vote shall be entitled to vote in person or by proxy
appointed by an instrument in writing subscribed by such Shareholder and
bearing a date not more than six (6) months prior to said meeting unless said
instrument provides that it shall be valid for a longer period. Each
Shareholder shall have one vote for each Share registered in his name on the
books of the Trustees and entitled to vote at said meeting.
Section 5. If the Trust has more than one class or series of Shares
outstanding, then each class or series shall vote separately on matters which
affect that class or series.
PAGE 15
ARTICLE X
Concerning the Trust Income and Dividends to Shareholders
Section 1. Dividends paid by any corporation out of earnings shall
be treated as income, except that stock dividends shall be deemed and treated
as corpus or principal unless the corporation declaring and issuing such
stock dividends shall establish, or has established, the practice of paying
stock dividends in lieu of or in addition to cash dividends, in which cases
the Trustees 'nay treat stock dividends declared and issued in accordance
with such established practice as income and not as corpus. The Trustees
shall have power to determine, subject to the provisions of the Agreement and
Declaration of Trust, whether receipts shall be classified as income or
corpus.
Section 2. (a) The Trustees may from time to time, at their sole
discretion, declare and pay to the Shareholders dividends out of income, net
capital gains or profits realized or resulting from the sale, exchange or
other disposition of Assets.
(b) The Trustees 'nay from time to time, at their sole
discretion, declare special dividends out of income or net capital gains or
profits realized or resulting from the sale, exchange or other disposition of
Trust Assets, and may, in and by the resolution or resolutions declaring such
special dividends, provide that the same shall be paid to the persons then
occupying the positions of Trustees under this Agreement and Declaration of
Trust, as agents of and for the Shareholders, and payment of any such
dividend to such agents shall for all purposes be deemed and treated as if
made direct to the Shareholder; provided, however, that such agents, as such,
and acting for and in behalf of the Shareholder, shall forthwith upon receipt
of such payment pay the full amount so received into the assets of the Trust
in the hands of the Custodian as a contribution to the capital of the Trust
by the Shareholders, but no additional Shares shall be issued in
consideration therefor, and for all purposes the net asset value of the Trust
and of the Shares shall be computed and determined as if such dividend had
not been declared and paid.
(c) The Trustees may, at their sole discretion, establish such
rules and procedures and delegate such authority as they deem necessary or
proper to provide for payment of dividends on a periodic basis.
Section 3. The Trustees shall prepare and mail to the Shareholders,
accompanying each distribution, either out of income or out of net capital
gains, a statement disclosing the source of such distribution and such other
information and in such form as may be prescribed or required by law. The
Shareholders, as a condition precedent to their right to receive such
distribution, shall be required to comply with all provisions of law and the
lawful regulations of the Treasury Depart-
PAGE 16
ment of the United States with respect to the taxation of Regulated
Investment Companies insofar as the same impose requirements on the
Shareholders.
ARTICLE XI
Concerning the Trustees
Section 1. The number of Trustees appointed, elected and acting as
such under the Agreement and Declaration of Trust shall be three (3) or more
as may be determined from time to time by the Shareholders at any annual or
special meeting of the Shareholders. The Trustees shall be divided into
three (3)' classes and the number of Trustees from time to time appointed,
elected and acting as such shall be distributed as nearly equally as possible
among said three (3) classes. The Trustee or Trustees of the first class
shall hold office until the annual meeting of shareholders to be held in
1989; the Trustee or Trustees of the second class shall hold office until the
annual meeting of Shareholders to be held in 1990; and the Trustee or
Trustees of the third class shall hold office until the annual meeting of
Shareholders to be held in 1991. The Shareholders shall have power to
determine the class to which each of the Trustees shall be elected. At each
annual meeting of the Shareholders a Trustee or Trustees equal in number to
the Trustees whose terms of office then expire shall be elected for terms of
three (3) years. If the Shareholders at any annual or special meeting
determine that there shall be more than three (3) Trustees, the Shareholders
shall elect the additional Trustees and assign them to their classes so that
their terms of office will expire at the same time as all other Trustees of
the same respective classes. All Trustees shall serve until their respective
successors are elected and qualified.
Section 2. Any Trustee may be removed at any time by an instrument
of writing signed by all the other Trustees setting forth the fact of such
removal and the date upon which it is effective. A copy of any such written
instrument removing the Trustee shall be lodged with the Custodian. Any
Trustee may also be removed at any time by a majority vote of the
Shareholders present in person or by proxy at any annual or special meeting
of the Shareholders at which a quorum for the transaction of business is
present. Notice of the action of the Shareholders in removing any Trustee
shall be given to the Custodian by the remaining Trustees.
Section 3. Any Trustee may resign from office as such by written
instrument signed by him and delivered to the other Trustees specifying the
date upon which such resignation shall become effective. A copy of any such
resignation shall be lodged with the Custodian.
PAGE 17
Section 4. In case of the death, resignation or removal of a
Trustee, or in case a vacancy among the Trustees shall exist for any reason,
the surviving or remaining Trustees shall have power to fill the vacancy by
electing or appointing to the office of Trustee such other person as they in
their discretion shall see fit; provided, that the surviving or remaining
Trustees shall have no power to fill such vacancy unless at least two-thirds
of the Trustees holding office after such vacancy has been filled were
elected by the Shareholders. If at any time less than two-thirds of the
Trustees in office were so elected by the Shareholders, the Trustees shall
cause a special meeting of the Shareholders to be convened within thirty (30)
days for the purpose of ratifying any appointments made by the surviving or'
remaining Trustees; and if the Shareholders shall fail or refuse to ratify
any such appointments, the vacancy or vacancies shall be filled by the
Shareholders themselves. The Trustees shall give prompt notice to the
Custodian of the election or appointment of a new Trustee or Trustees by any
method, and the Custodian shall always be entitled to rely conclusively upon
the certificate of the Trustees concerning the identity of the persons then
elected and in office as such Trustees.
Section 5. The Trustees in their discretion may engage in,
prosecute, compromise, abandon or adjust by arbitration, or otherwise, any
actions, suits, proceedings, disputes, claims, demands and other matters
relating to the Trust, and out of the Trust assets to pay, or to satisfy any
debts, claims or expenses incurred in connection therewith, including those
of litigation, upon any evidence that the Trustees may deem sufficient,
including any such matters relating to the Trust wherein any of the Trustees
may be named individually, the subject matter of which arises by reason of
business for and on behalf of the Trust.
Section 6. The Trustees may make, adopt, amend, restate and repeal
from time to time such rules, regulations, resolutions, by-laws and
procedures, not inconsistent with the provisions of the Agreement and
Declaration of Trust, as they may deem necessary or desirable for the
management of the Trust and for the government of themselves, their officers,
agents and employees. The Trustees may take any action with or without
meeting, as they may determine. The acts of a majority of the Trustees at
any time duly elected or appointed and in office as such under the provisions
of the Agreement and Declaration of Trust, shall be deemed and construed for
all purposes as the lawful acts and actions of the Trustees in like manner as
if done or taken by unanimous action of the Trustees.
Section 7. The Trustees shall have power and authority to appoint
such officers, agents and employees as the business of the Trust may require,
to define and delimit the powers and duties of such officers, agents and
employees, and to fix and pay out of the funds of the Trust, reasonable
compensation for their services as Trustees and for the services of such
officers, agents and employees. All Trustees and their officers, agents
PAGE 18
and employees handling the funds, monies, properties and assets of the Trust,
or having access thereto, but not including the Custodian, shall be required
to give bonds in such reasonable penal sums, respectively, as may be fixed by
the Trustees.
Section 8. Any Trustee shall have power and authority to acquire,
own and dispose of Shares of the Trust and to be a Shareholder, in like
manner and to the same extent as if he were not a Trustee. Any Trustee,
except as may be prohibited by law, may deal with the Trust in relation to
any matter in like manner and to the same extent as if he were not a Trustee.
Section 9. The Trustees shall have power and authority to enter
into agreements or contractual arrangements on behalf of the Trust with
management companies, investment advisors, accounting firms, banks or trust
companies, and such other persons as may be necessary or proper to provide
such services to the Trust.
Section 10. No recourse shall at any time be had under or upon any
contract, instrument, certificate, undertaking, obligation, covenant, or
agreement, whether oral or written, made, issued or executed by the Trustees
in pursuance of the terms of the Agreement and Declaration of Trust, or by
any officer or agent of the Trustees, or by reason of anything done or
omitted to be done by them or any of them, against the Trustees individually,
or against any such officer or agent or against any Shareholder, by legal or
equitable proceedings, or by virtue of any suit or otherwise, except only to
compel the proper application or distribution of the Trust assets, it being
expressly understood and agreed that the Agreement and Declaration of Trust,
and all obligations and instruments executed hereunder or pursuant hereto, by
the Trustees, and any acts done or omitted to be done by them, are solely the
obligations, instruments, acts and omissions of, or in respect of, the Trust,
and that all the obligations, instruments, liabilities, covenants and
agreements, acts of omission of the Trustees, as Trustees, shall be enforced
against and be satisfied out of the Trust assets only, and all personal and
individual liability of Trustees, except as herein stated, and of all
officers and agents, and of the Shareholders, is hereby expressly waived and
negated. Nothing herein contained shall be construed as empowering or
authorizing the Trustees to contract any debt or to do anything which will
bind any of the Shareholders or any of the Trustees personally, and any
person, firm, corporation or association contracting or dealing with the
Trustees shall be obligated to enforce any obligation, liability or covenant
with said Trustees against, and be satisfied out of, the Trust assets only
and not against any Shareholder or any Trustees personally. Nothing herein
contained shall be construed or deemed to protect or indemnify, or to purport
to protect or indemnify, any Trustee or any officer or agent of the Trustees
against any liability to the Trust or to the Shareholders to which any such
Trustee, officer or agent would otherwise be subject by reason of willful
misfeasance, bad faith, gross
PAGE 19
negligence, or reckless disregard of the duties involved in the conduct of
his office, or by reason of any liabilities incurred under, or any violation
by him of, the Securities Act of 1933, as amended, or the Investment Company
Act of 1940, or both said Acts.
Section 11. No person, firm or corporation dealing with the Trustees
or the Trust shall be required to investigate the Trustees' authority for
entering into any transaction or to see to the application of the proceeds of
any transaction.
ARTICLE XII
Concerning the Custodian
Section 1. The Custodian shall not be liable for the exercise of
any discretion or power or for mistakes or errors of judgment nor otherwise
in connection with the Custodianship except for its own willful misconduct or
gross negligence. The Custodian shall be indemnified by the Trustees against
all costs and expenses (including amounts of judgments where the adjudication
does not involve a dereliction in the performance of its duties) reasonably
incurred by or imposed upon the Custodian in connection with or resulting
from any action, suit or proceeding to which it may be made a party by reason
of its being or having been the Custodian, except in relation to matters in
which a recovery shall be had against it by reason of its having been finally
adjudged in such action, suit or proceeding to have been derelict in the
performance of its duties as such Custodian. The foregoing right of
indemnity shall include reimbursement for the amounts and expenses, including
attorneys' fees, paid in settling any such action, suit or proceeding when
settling appears to be in the interest of the Trust and the Trustees shall
determine there has been no dereliction, and shall not be exclusive of other
rights to which the Custodian may be entitled as a matter of law.
Indemnification for amounts of judgment and amounts paid by the Custodian to
the Trust itself;
Section 2. Any statement or certification by the Trustees shall be
sufficient if made by the Trustees or by a majority of the Trustees or by
their duly appointed agent or agents and may be accepted by the Custodian as
conclusive evidence of all matters therein contained and the Custodian shall
be protected in any action which it may take or refrain from taking by reason
of the supposed existence of such fact or matter;
Section 3. The Custodian shall not be responsible for any breach by
the Trustees of any covenant contained in this Agreement and Declaration of
Trust or any Supplemental Declaration of Trust pursuant thereto;
PAGE 20
Section 4. The Custodian shall not be personally liable for any
taxes, assessments or other governmental charges imposed upon or in respect
of the Trust assets or the income therefrom, or upon it as Custodian
hereunder, under any present or future law of the United States of America or
of any state, county, municipality or other taxing authority; and the
Trustees shall reimburse the Custodian for, and indemnify it against any and
all liability imposed upon it by reason of any of the foregoing matters and
the trust estate shall be responsible and liable there-for;
Section 5. The Custodian covenants and agrees that no person or
persons nominated by it to hold any Shares of stock' constituting the Trust
assets shall (1) pledge, sell or otherwise dispose of such Shares of stock,
(2) exercise any right to vote or execute any proxy to vote or consent with
respect thereto, except as instructed by the Trustees, or (3) receive, hold
or dispose of any income or proceeds from or out of, or distribution upon or
with respect to, any such Shares of stock for his, their or its account or
otherwise than for the account of the Custodian;
Section 6. The Custodian or any successor Custodian may resign and
be discharged of the custodianship hereunder upon giving thirty (30) days
written notice thereof to the Trustees; provided that no resignation of the
Custodian or any successor Custodian shall take effect until (1) the Trust
has been completely liquidated and the proceeds of the liquidation dis-
tributed to the Shareholders, or (2) a successor Custodian, having the
qualifications prescribed in the Agreement and Declaration of Trust, has been
designated and has accepted such custodianship;
Section 7. The Custodian shall be entitled to receive from the
Trustees, and the Trustees agree to pay to the Custodian, all expenses
incurred and paid by the Custodian in performance of its duties hereunder and
compensation for its services as Custodian in such reasonable amounts as may
be agreed upon between the Custodian and the Trustees; provided that during
the life of the Trust hereby created the Custodian, if not otherwise
remunerated, may charge against and collect from the income of the Trust, and
from the corpus thereof if no income is available, such fees for its services
and such reimbursement for its expenses as are provided for in the Agreement
and Declaration of Trust, but no such charge or collection shall be made
except for services theretofore performed or expenses theretofore incurred.
Section 8. The Custodian or any successor may be removed at any
time (a) by an instrument in writing signed by the Trustees, or (b) by a
majority vote of the Shareholders present in person or represented by proxy
at any annual or special meeting of the Shareholders at which a quorum for
the transaction of business is present.
PAGE 21
Section 9. In case the Custodian or any successor custodian shall
resign or be removed or a vacancy shall otherwise occur in the position of
Custodian hereunder, a successor Custodian shall be appointed by the
Trustees. Every Successor Custodian shall execute and deliver to its
predecessor last in office, and also to the Trustees, an instrument accepting
such appointment hereunder, the acceptance of the appointment by any
successor Custodian and the receipt by it of the Trust assets shall
constitute a full and complete discharge of the predecessor Custodian from
any and all obligations hereunder.
Section 10. The Custodian and every successor to the Custodian shall
always be a bank or trust company having capital,' surplus and undivided
profits aggregating at least One Million Dollars ($1,000,000.00), or such
other sum as may be required by any applicable law, rule or regulation.
ARTICLE XIII
Location of Trust Records
The original or a copy of this instrument and of each Declaration of Trust
Supplemental hereto, shall be kept at the office of the Trust where it may be
inspected by any Beneficial Shareholder. Anyone dealing with the Trust may
rely on a certificate by a Trustee of the Trust as to whether or not any such
supplemental Declarations of Trust have been made as to any matter in connec-
tion with the Trust hereunder, and with the same effect as if it were the
original, may rely on a copy certified by a Trustee of the Trust to be a copy
of this instrument or of any such supplemental Declaration of Trust.
ARTICLE XIV
Concerning the Termination of the Trust
Section 1. The Trust created by the Agreement and Declaration of
Trust may be terminated by the Trustees under the following conditions:
(a) if the net assets of the Trust have been reduced, through
redemption of outstanding Shares or otherwise to such an amount that,
in the opinion of the Trustees it is impracticable to continue the
Trust; or
(b) if a vacancy in the position of Custodian hereunder occurs and it
is not possible to secure a successor Custodian; or
(c) if there shall exist at the same time vacancies in the
positions of three (3) or more Trustees hereunder and the
Shareholders shall fail or refuse to elect successor
Trustees; or
PAGE 22
(d) if voted by the registered holders of a two-thirds majority or
more of all the outstanding Shares, present in person or represented by
proxy and entitled to vote at any meeting of the Shareholders called
for that purpose.
Section 2. Upon termination of the Trust, the Trustees shall notify
each Shareholder thereof by mail, or in such other manner as may be
prescribed by law, and shall proceed to sell the Trust assets and convert the
same into cash and apply the proceeds as follows:
(a) to the payment of all prior costs, expenses, charges, taxes and
other obligations, entitled by law to priority of payment
(b) to distribution ratably among the Shareholders in proportion to
the numbers of Shares registered in their names respectively.
Upon termination of the Trust and final distribution of the Trust's assets,
the Trustees shall be discharged from any and all further liabilities and
duties hereunder and the rights, title and interest of all parties to the
Trust shall be canceled and discharged.
ARTICLE XV
Concerning Amendments to the Agreement and Declaration of Trust
Section 1. The Trustees may amend, modify, supplement and restate
the Agreement and Declaration of Trust from time to time with the consent or
approval of the Shareholders holding a majority of the Shares then issued and
outstanding. No such amendment, modification, supplement or restatement
shall affect the validity of any lawful act theretofore done.
Section 2. Notwithstanding the foregoing provisions, the Trustees,
without the consent or approval of Shareholders, may amend, alter, supplement
or restate the Agreement and Declaration of Trust in any respect necessary or
required to comply with any
PAGE 23
law now in effect or hereafter enacted, or any rule, regulation or order of
any lawfully constituted body or commission having jurisdiction.
IN WITNESS WHEREOF, the undersigned have executed this Agreement and
Declaration of Trust as of the 31st day of March,
1988.
/s/Xxxxx X. Xxxxx
Xxxxx X. Xxxxx, Trustee
/s/Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, Trustee
/s/Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Trustee
/s/Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Trustee
/s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Trustee
/s/Xxxxxxx X. Xxxx
/s/Xxxxxxx X. Xxxx, Trustee
/s/Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Trustee
PAGE 24
