WARBURG, XXXXXX TRUST II
----------------------------------
AGREEMENT AND DECLARATION OF TRUST
----------------------------------
Dated: December 16, 1996
Principal Office:
Warburg Pincus Counsellors, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Massachusetts Office and Name and Address of
Resident Agent:
Xxxxx X. Xxxxx
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
i
TABLE OF CONTENTS
-----------------
Page
----
RECITALS................................................................... 1
ARTICLE 1. THE TRUST ..................................................... 2
SECTION 1.1. Name .................................................... 2
SECTION 1.2. Location ................................................ 2
SECTION 1.3. Nature of Trust.......................................... 2
SECTION 1.4. Definitions.............................................. 3
SECTION 1.5. Real Property to be Converted into Personal Property..... 6
ARTICLE 2. PURPOSE OF THE TRUST............................................ 6
ARTICLE 3. POWERS OF THE TRUSTEES.......................................... 7
SECTION 3.1. Powers in General....................................... 7
(a) Investments.................................... 8
(b) Disposition of Assets.......................... 8
(c) Ownership Powers............................... 8
(d) Form of Holding................................ 8
(e) Reorganization, etc............................ 8
(f) Voting Trusts, etc............................. 8
(g) Contracts, etc................................. 9
(h) Guaranties, etc................................ 9
(i) Partnerships, etc.............................. 9
(j) Insurance...................................... 9
(k) Pensions, etc.................................. 9
(l) Power of Collection and Litigation............. 10
(m) Issuance and Repurchase of Shares.............. 10
(n) Offices........................................ 10
(o) Expenses....................................... 10
(p) Agents, etc.................................... 10
(q) Accounts....................................... 11
(r) Valuation...................................... 11
(s) Indemnification................................ 11
(t) General........................................ 11
SECTION 3.2. Borrowings; Financings; Issuance of Securities.......... 11
SECTION 3.3. Deposits ............................................... 11
SECTION 3.4. Allocations............................................. 12
SECTION 3.5. Further Powers; Limitations............................. 12
ARTICLE 4. TRUSTEES AND OFFICERS........................................... 12
SECTION 4.1. Number, Designation, Election, Term, etc................ 12
(a) Initial Trustee................................ 12
(b) Number......................................... 13
(c) Election and Term.............................. 13
(d) Resignation and Retirement..................... 13
ii
(e) Removal........................................ 13
(f) Vacancies...................................... 14
(g) Acceptance of Trusts........................... 14
(h) Effect of Death, Resignation, etc.............. 14
(i) Conveyance..................................... 14
(j) No Accounting.................................. 15
SECTION 4.2. Trustees' Meetings; Participation by Telephone, etc..... 15
SECTION 4.3. Committees; Delegation.................................. 15
SECTION 4.4. Officers ............................................... 15
SECTION 4.5. Compensation of Trustees and Officers................... 16
SECTION 4.6. Ownership of Shares and Securities of the Trust......... 16
SECTION 4.7. Right of Trustees and Officers to Own Property
or to Engage in Business; Authority
of Trustees to Permit Others to Do Likewise...... 16
SECTION 4.8. Reliance on Experts.................................... 17
SECTION 4.9. Surety Bonds........................................... 17
SECTION 4.10. Apparent Authority of Trustees and Officers............ 17
SECTION 4.11. Other Relationships Not Prohibited..................... 17
SECTION 4.12. Payment of Trust Expenses.............................. 18
SECTION 4.13. Ownership of the Trust Property........................ 18
ARTICLE 5. DELEGATION OF MANAGERIAL RESPONSIBILITIES...................... 19
SECTION 5.1. Appointment; Action by Less than All Trustees.......... 19
SECTION 5.2. Certain Contracts...................................... 19
(a) Advisory...................................... 19
(b) Administration................................ 20
(c) Distribution.................................. 20
(d) Custodian..................................... 20
(e) Transfer and Dividend Disbursing Agency....... 20
(f) Shareholder Servicing......................... 21
(g) Accounting.................................... 21
ARTICLE 6. PORTFOLIOS AND SHARES.......................................... 21
SECTION 6.1. Description of Portfolios and Shares................... 21
(a) Shares: Portfolios; Series of Shares.......... 21
(b) Establishment, etc. of Portfolios;
Authorization of Shares..................... 22
(c) Character of Separate Portfolios and Shares
Thereof..................................... 23
(d) Consideration for Shares...................... 23
SECTION 6.2. Establishment and Designation of Certain Portfolios;
General Provisions for All Portfolios.............. 23
(a) Assets Belonging to Portfolios................ 23
(b) Liabilities of Portfolios..................... 24
(c) Dividends..................................... 24
(d) Liquidation................................... 25
(f) Redemption by Shareholder..................... 25
(g) Redemption at the Option of the Trust......... 25
(h) Net Asset Value............................... 26
(i) Transfer...................................... 26
(j) Equality...................................... 26
(k) Rights of Fractional Shares................... 26
iii
(l) Conversion Rights............................. 27
SECTION 6.3. Ownership of Shares.................................... 27
SECTION 6.4. Investments in the Trust............................... 27
SECTION 6.5. No Preemptive Rights................................... 27
SECTION 6.6. Status of Shares....................................... 27
ARTICLE 7. SHAREHOLDERS' VOTING POWERS AND MEETINGS....................... 28
SECTION 7.1. Voting Powers.......................................... 28
SECTION 7.2. Number of Votes and Manner of Voting; Proxies.......... 28
SECTION 7.3. Meetings .............................................. 29
SECTION 7.4. Record Dates........................................... 29
SECTION 7.5. Quorum and Required Vote............................... 29
SECTION 7.6. Action by Written Consent.............................. 30
SECTION 7.7. Inspection of Records.................................. 30
SECTION 7.8. Additional Provisions.................................. 30
ARTICLE 8. LIMITATION OF LIABILITY; INDEMNIFICATION.........................30
SECTION 8.1. Trustees, Shareholders, etc. Not Personally Liable;
Notice................................................. 30
SECTION 8.2. Trustees' Good Faith Action; Expert Advice;
No Bond or Surety...................................... 31
SECTION 8.3. Indemnification of Shareholders........................ 31
SECTION 8.4. Indemnification of Trustees, Officers, etc............. 32
SECTION 8.5. Compromise Payment..................................... 33
SECTION 8.6. Indemnification Not Exclusive, etc..................... 33
SECTION 8.7. Liability of Third Persons Dealing with Trustees....... 33
ARTICLE 9. DURATION; REORGANIZATION; AMENDMENTS........................... 33
SECTION 9.1. Duration and Termination of Trust...................... 33
SECTION 9.2. Reorganization......................................... 34
SECTION 9.3. Amendments; etc........................................ 34
SECTION 9.4. Filing of Copies of Declaration and Amendments......... 35
ARTICLE 10. MISCELLANEOUS................................................. 35
SECTION 10.1. Governing Law.......................................... 35
SECTION 10.2. Counterparts........................................... 35
SECTION 10.3. Reliance by Third Parties.............................. 36
SECTION 10.4. References; Headings................................... 36
SECTION 10.5. Use of the Name "Warburg, Xxxxxx....................... 36
SIGNATURES.................................................................
ACKNOWLEDGMENTS............................................................
1
AGREEMENT AND DECLARATION OF TRUST
OF
WARBURG, XXXXXX TRUST II
------------------------
This AGREEMENT AND DECLARATION OF TRUST, made at Boston, Massachusetts
this 16th day of December, 1996 by and between the Settlor and 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:
WHEREAS, Xxxxxxx X. Xxxxxxxx, an individual residing in Milton,
Massachusetts (the "Settlor"), proposes to deliver to the Initial Trustee the
sum of one hundred dollars ($100.00) lawful money of the United States of
America in trust hereunder and to authorize the Initial Trustee and all other
Persons acting as Trustees hereunder to employ such funds, and any other funds
coming into their hands or the hands of their successor or successors as such
Trustees, to carry on the business of an investment company, and as such of
buying, selling, investing in or otherwise dealing in and with stocks, bonds,
debentures, warrants, options, futures contracts and other securities and
interests therein, or calls or puts with respect to any of the same, or such
other and further investment media and other property as the Trustees may deem
advisable, which are not prohibited by law or the terms of this Declaration; and
WHEREAS, the Initial Trustee is willing to accept such sum, together
with any and all additions thereto and the income or increments thereof, upon
the terms, conditions and trusts hereinafter set forth; and
WHEREAS, it is proposed that the assets held by the Trustees be
divided into separate portfolios, each with its own separate investment assets,
investment objectives, policies and purposes, and that the beneficial interest
in each such portfolio shall be divided into transferable Shares of Beneficial
Interest, a separate Series of Shares for each portfolio, all in accordance with
the provisions hereinafter set forth; and
WHEREAS, it is desired that the trust established hereby (the "Trust")
be managed and operated as a trust with transferable shares under the laws of
Massachusetts, of the type commonly known as and referred to as a Massachusetts
business trust, in accordance with the provisions hereinafter set forth;
NOW, THEREFORE the Initial Trustee, for himself and his successors as
Trustees, hereby declares, and agrees with the Settlor, for himself and for all
Persons who shall hereafter become holders of Shares of Beneficial Interest of
the Trust, of any Series, that the Trustees will hold the sum delivered to them
upon the execution hereof, and all other and further cash, securities and other
property of every type and description which they may in
2
any way acquire in their capacity as such Trustees, together with the income
therefrom and the proceeds thereof, IN TRUST NEVERTHELESS, to manage and dispose
of the same for the benefit of the holders from time to time of the Shares of
Beneficial Interest of the several Series being issued and to be issued
hereunder and in the manner and subject to the provisions hereof, to wit:
ARTICLE 1.
----------
THE TRUST
---------
SECTION 1.1. Name. The name of the Trust shall be
"WARBURG, XXXXXX TRUST II",
and so far as may be practicable the Trustees shall conduct the Trust's
activities, execute all documents and xxx or be sued under that name, which name
(and the word "Trust" wherever used in this Agreement and Declaration of Trust,
except where the context otherwise requires) shall refer to the Trustees in
their capacity as Trustees, and not individually or personally, and shall not
refer to the officers, agents or employees of the Trust or of such Trustees, or
to the holders of the Shares of Beneficial Interest of the Trust, of any Series.
If the Trustees determine that the use of such name is not practicable, legal or
convenient at any time or in any jurisdiction, or if the Trust is required to
discontinue the use of such name pursuant to Section 10.5 hereof, then subject
to that Section, the Trustees may use such other designation, or they may adopt
such other name for the Trust as they deem proper, and the Trust may hold
property and conduct its activities under such designation or name.
SECTION 1.2. Location. The Trust shall have an office in Boston,
Massachusetts, unless changed by the Trustees to another location in
Massachusetts or elsewhere, but such office need not be the sole or principal
office of the Trust. The Trust may have such other offices or places of business
as the Trustees may from time to time determine to be necessary or expedient.
SECTION 1.3. Nature of Trust. The Trust shall be a trust with
transferable shares under the laws of The Commonwealth of Massachusetts, of the
type referred to in Section 1 of Chapter 182 of the Massachusetts General Laws
and commonly termed a Massachusetts business trust. The Trust is not intended to
be, shall not be deemed to be, and shall not be treated as, a general
partnership, limited partnership, limited liability partnership, joint venture,
corporation, limited liability company or joint stock company. The Shareholders
shall be beneficiaries and their relationship to the Trustees shall be solely in
that capacity in accordance with the rights conferred upon them hereunder.
SECTION 1.4. Definitions. As used in this Agreement and Declaration of
Trust, the following terms shall have the meanings set forth below unless the
context thereof otherwise requires:
3
"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 such
term in the 1940 Act.
"Bylaws" shall mean the Bylaws of the Trust, as amended from time to
time.
"Certificate of Designation" shall have the meaning designated in
Section 6.1(b) hereof.
"Certificate of Termination" shall have the meaning designated in
Section 6.1(b) hereof.
"Commission" shall have the meaning assigned to such term in the 1940
Act.
"Contracting Party" shall have the meaning designated in the preamble
to Section 5.2.
"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.
"Dividend Disbursing Agent" shall have the meaning designated in
Section 5.2(e) hereof.
"General Items" shall have the meaning designated in Section 6.2(a)
hereof.
"Initial Trustee" shall have the meaning assigned to such term in the
preamble hereto.
"Investment Adviser" shall have the meaning designated 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 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
4
proxy and entitled to vote thereon, provided that a quorum (as determined in
accordance with Section 7.5 hereof) is present, and as used with respect to any
other action required or permitted to be taken by Shareholders, shall mean the
vote for such action of the holders of that 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 consists of: (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 (as determined in accordance with the Bylaws) 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 Portfolio, "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 Portfolio)
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 liability companies, limited partnerships, limited liability
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.
"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 designated 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
5
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 to represent the beneficial interest in one or more of the
Portfolios.
"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 Agent" shall have the meaning designated in
Section 5.2(f) hereof.
"Shares" shall mean the transferable units into which the beneficial
interest in the Trust and each 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 or Portfolio shall be deemed
to apply to outstanding Shares without regard to Series.
"Single Class Voting," as used with respect to any matter to be acted
upon at a meeting or by written consent of Shareholders, shall mean a style of
voting in which each holder of one or more Shares shall be entitled to one vote
on the matter in question for each Share standing in his name on the records of
the Trust, irrespective of Series, and all outstanding Shares of all Series vote
as a single class.
"Statement of Additional Information," as used with respect to any
Portfolio or Series of Shares, shall mean the statement of additional
information 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 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 designated 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,
6
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 1.5. Real Property to be Converted into Personal Property.
Notwithstanding any other provision hereof, any real property at any time
forming part of the Trust Property shall be held in trust for sale and
conversion into personal property at such time or times and in such manner and
upon such terms as the Trustees shall approve, but the Trustees shall have power
until the termination of this Trust to postpone such conversion as long as they
in their uncontrolled discretion shall think fit, and for the purpose of
determining the nature of the interest of the Shareholders therein, all such
real property shall at all times be considered as personal property.
ARTICLE 2.
----------
PURPOSE OF THE TRUST
--------------------
The purpose of the Trust shall be to engage in the business of being
an investment company, and as such of subscribing for, purchasing or otherwise
acquiring, holding for investment or trading in, borrowing, lending and selling
short, selling, assigning, negotiating or exchanging and otherwise disposing of,
and turning to account, realizing upon and generally dealing in and with, in any
manner, (a) Securities of all kinds, (b) precious metals and other minerals,
contracts to purchase and sell, and other interests of every nature and kind in,
such metals or minerals, and (c) rare coins and other numismatic items, and all
as the Trustees in their discretion shall determine to be necessary, desirable
or appropriate, and to exercise and perform any and every act, thing or power
necessary, suitable or desirable for the accomplishment of such purpose, the
attainment of any of the objectives or the furtherance of any of the powers
given hereby which are lawful purposes, objects or powers of a trust with
transferable shares of the type commonly termed a Massachusetts business trust;
and to do every other act or acts or thing or things incidental or appurtenant
to or growing out of or in connection with the aforesaid objectives, purposes or
powers, or any of them, which a trust of the type commonly termed a
Massachusetts business trust is not now or hereafter prohibited from doing,
exercising or performing.
7
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 of Trust or by
applicable law. The enumeration of any specific power or authority herein shall
not be construed as limiting the aforesaid power or authority or any specific
power or authority. Without limiting the foregoing, the Trustees may adopt
Bylaws not inconsistent with this Declaration of Trust providing for the conduct
of the business and affairs of the Trust and may amend and repeal them to the
extent that such Bylaws do not reserve that right to the Shareholders; they may
select, and from time to time change, the fiscal year of the Trust; they may
adopt and use a seal for the Trust, provided, that unless otherwise required by
the Trustees, it shall not be necessary to place the seal upon, and its absence
shall not impair the validity of, any document, instrument or other paper
executed and delivered by or on behalf of the Trust; they may from time to time
in accordance with the provisions of Section 6.1 hereof establish one or more
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 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
8
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 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 such power and authority
9
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) Guaranties, 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
10
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;
(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;
11
(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 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.
SECTION 3.2. Borrowings; Financings; Issuance of Securities. The
Trustees shall have the power to borrow or in any other manner raise such sum or
sums of money, and to incur such other indebtedness for goods or services, or
for or in connection with the purchase or other acquisition of property, as they
shall deem advisable for the purposes of the Trust, in any manner and on any
terms, and to evidence the same by negotiable or non-negotiable Securities which
may mature at any time or times, even beyond the possible date of termination of
the Trust; to issue securities of any type for such cash, property, services or
other considerations, and at such time or times and upon such terms, as they may
deem advisable; and to reacquire any such Securities. Any such Securities of the
Trust may, at the discretion of the Trustees, be made convertible into Shares of
any Series, or may evidence the right to purchase, subscribe for or otherwise
acquire Shares of any Series, at such times and on such terms as the Trustees
may prescribe.
SECTION 3.3. Deposits. Subject to the requirements of the 1940 Act,
the Trustees shall have power to deposit any moneys or Securities included in
the Trust Property with any one or more banks, trust companies or other banking
institutions, whether or not such deposits will draw interest. Such deposits are
to be subject to withdrawal in such manner as the Trustees may determine, and
the Trustees shall have no responsibility for any loss which may occur by reason
of the failure of the bank, trust company or other banking institution with
which any such moneys or Securities have been deposited, other than liability
based on their gross negligence or willful default.
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
12
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 of Trust, the presumption shall
be in favor of a grant of power to the Trustees. The Trustees shall not be
required to obtain any court order to deal with the Trust Property. The Trustees
may limit their right to exercise any of their powers through express
restrictive provisions in the instruments evidencing or providing the terms for
any Securities of the Trust or in other contractual instruments adopted on
behalf of the Trust.
ARTICLE 4.
----------
TRUSTEES AND OFFICERS
---------------------
SECTION 4.1. Number, Designation, Election, Term, etc.
(a) Initial Trustee. Upon his execution of this Declaration
of Trust or a counterpart hereof or some other writing in which he
accepts such Trusteeship and agrees to the provisions hereof, the
individual whose signature is affixed hereto as Initial Trustee shall
become the Initial Trustee hereof.
(b) Number. The Trustees serving as such, whether named
below or hereafter becoming Trustees, may, by a written instrument
signed by a Majority of the Trustees (or by an officer of the Trust
pursuant to the vote of a Majority of the Trustees), increase or
decrease the number of Trustees to a number other than the number
theretofore determined. No decrease in the number of Trustees shall
have the effect of removing any Trustee from office prior to the
expiration of his term, but the number of Trustees may be decreased in
conjunction with the removal of a Trustee pursuant to subsection (e)
of this Section 4.1.
(c) Election and Term. The Trustees shall be elected by the
Shareholders of the Trust at the first meeting of Shareholders
immediately prior to the initial public offering of Shares of the
Trust, and the term of office of any Trustees in office before
13
such election shall terminate at the time of such election. Subject to
Section 16(a) of the 1940 Act and to the preceding sentence of this
subsection (c), the Trustees shall have the power to set and alter the
terms of office of the Trustees, and at any time to lengthen or
shorten their own terms or make their terms of unlimited duration, to
elect their own successors and, pursuant to subsection (f) of this
Section 4.1, to appoint Trustees to fill vacancies; provided, that
Trustees shall be elected by a Majority Shareholder Vote at any such
time or times as the Trustees shall determine that such action is
required under Section 16(a) of the 1940 Act or, if not so required,
that such action is advisable; and further provided, that, after the
initial election of Trustees by the Shareholders, the term of office
of any incumbent Trustee shall continue until the termination of this
Trust or his earlier death, resignation, retirement, bankruptcy,
adjudicated incompetency or other incapacity or removal, or if not so
terminated, until the election of such Trustee's successor in office
has become effective in accordance with this subsection (c).
(d) Resignation and Retirement. Any Trustee may resign his
trust or retire as a Trustee, by a written instrument signed by him
and delivered to the other Trustees or to any officer of the Trust,
and such resignation or retirement shall take effect upon such
delivery or upon such later date as is specified in such instrument.
(e) Removal. Any Trustee may be removed with or without
cause at any time: (i) by written instrument, signed by at least
two-thirds (2/3) of the number of Trustees prior to such removal,
specifying the date upon which such removal shall become effective; or
(ii) by vote of Shareholders holding not less than two-thirds (2/3) of
the Shares of each Series then outstanding, cast in person or by proxy
at any meeting called for the purpose; or (iii) by a written
declaration signed by Shareholders holding not less than two-thirds
(2/3) of the Shares of each Series then outstanding and filed with the
Trust's Custodian.
(f) Vacancies. Any vacancy or anticipated vacancy resulting
from any reason, including an increase in the number of Trustees, may
(but need not unless required by the 0000 Xxx) be filled by a Majority
of the Trustees, subject to the provisions of Section 16(a) of the
1940 Act, through the appointment in writing of such other individual
as such remaining Trustees in their discretion shall determine;
provided, that if there shall be no Trustees in office, such vacancy
or vacancies shall be filled by vote of the Shareholders. Any such
appointment or election shall be effective upon such individual's
written acceptance of his appointment as a Trustee and his agreement
to be bound by the provisions of this Declaration of Trust, except
that any such appointment in anticipation of a vacancy to occur by
reason of retirement, resignation or increase in the number of
Trustees to be effective at a later date shall become effective only
at or after the effective date of said retirement, resignation or
increase in the number of Trustees.
(g) Acceptance of Trusts. Any individual appointed as a
Trustee under subsection (f), and any individual elected as a Trustee
under subsection (c) of this Section 4.1 who was not, immediately
prior to such election, acting as a Trustee, shall
14
accept such appointment or election in writing and agree in such
writing to be bound by the provisions hereof, and whenever such
individual shall have executed such writing and any conditions to such
appointment or election shall have been satisfied, such individual
shall become a Trustee and the Trust Property shall vest in the new
Trustee, together with the continuing Trustees, without any further
act or conveyance.
(h) Effect of Death, Resignation, etc. No vacancy, whether
resulting from the death, resignation, retirement, removal or
incapacity of any Trustee, an increase in the number of Trustees or
otherwise, shall operate to annul or terminate the Trust hereunder or
to revoke or terminate any existing agency or contract created or
entered into pursuant to the terms of this Declaration of Trust. Until
such vacancy is filled as provided in this Section 4.1, the Trustees
in office (if any), regardless of their number, shall have all the
powers granted to the Trustees and shall discharge all the duties
imposed upon the Trustees by this Declaration. A written instrument
certifying the existence of such vacancy signed by a Majority of the
Trustees shall be conclusive evidence of the existence of such
vacancy.
(i) Conveyance. In the event of the resignation or removal
of a Trustee or his otherwise ceasing to be a Trustee, such former
Trustee or his legal representative shall, upon request of the
continuing Trustees, execute and deliver such documents as may be
required for the purpose of consummating or evidencing the conveyance
to the Trust or the remaining Trustees of any Trust Property held in
such former Trustee's name, but the execution and delivery of such
documents shall not be requisite to the vesting of title to the Trust
Property in the remaining Trustees, as provided in subsection (g) of
this Section 4.1 and in Section 4.13 hereof
(j) No Accounting. Except to the extent required by the 1940
Act or under circumstances which would justify his removal for cause,
no Person ceasing to be a Trustee (nor the estate of any such Person)
shall be required to make an accounting to the Shareholders or
remaining Trustees upon such cessation.
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 Bylaws or vote of the Trustees, or by any two
(2) Trustees, or pursuant to a vote of the Trustees adopted at a duly
constituted meeting of the Trustees, and upon such notice as shall be provided
in the Bylaws. The Trustees may act with or without a meeting, and a written
consent to any matter, signed by a Majority of the Trustees, shall be equivalent
to action duly taken at a meeting of the Trustees, duly called and held. Except
as otherwise provided by the 1940 Act or other applicable law, or by this
Declaration of Trust or the Bylaws, any action to be taken by the Trustees may
be taken by a majority of the Trustees present at a meeting of Trustees (a
quorum, consisting of at least a Majority of the Trustees, being present),
within or without Massachusetts. If authorized by the Bylaws, all or any one or
more Trustees may participate in a meeting of the Trustees or any Committee
thereof by means of conference telephone or similar means of communication by
means of which all Persons participating in the meeting
15
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.
SECTION 4.4. Officers. The Trustees shall elect such officers or
agents, who shall have such powers, duties and responsibilities as the Trustees
may deem to be advisable, and as they shall specify by resolution or in the
Bylaws. Except as may be provided in the Bylaws, any officer elected by the
Trustees may be removed at any time with or without cause. Any two (2) or more
offices may be held by the same individual.
SECTION 4.5. Compensation of Trustees and Officers. The Trustees shall
fix the compensation of all officers and Trustees. Without limiting the
generality of any of the provisions hereof, the Trustees shall be entitled to
receive reasonable compensation for their general services as such, and to fix
the amount of such compensation, and to pay themselves or any one or more of
themselves such compensation for special services, including legal, accounting,
or other professional services, as they in good faith may deem reasonable. No
Trustee or officer resigning and (except where a right to receive compensation
for a definite future period shall be expressly provided in a written agreement
with the Trust, duly approved by the Trustees) no Trustee or officer removed
shall have any right to any compensation as such Trustee or officer for any
period following his resignation or removal, or any right to damages on account
of his removal, whether his compensation be by the month, by the year or
other-wise.
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.
16
SECTION 4.7. Right of Trustees and Officers to Own Property or to
Engage in Business; Authority of Trustees to Permit Others to Do Likewise. The
Trustees, in their capacity as Trustees, and (unless otherwise specifically
directed by vote of the Trustees) the officers of the Trust in their capacity as
such, shall not be required to devote their entire time to the business and
affairs of the Trust. Except as otherwise specifically provided by vote of the
Trustees, or by agreement in any particular case, any Trustee or officer of the
Trust may acquire, own, hold and dispose of, for his own individual account, any
property, and acquire, own, hold, carry on and dispose of, for his own
individual account, any business entity or business activity, whether similar or
dissimilar to any property or business entity or business activity invested in
or carried on by the Trust, and without first offering the same as an investment
opportunity to the Trust, and may exercise all rights in respect thereof as if
he were not a Trustee or officer of the Trust. The Trustees shall also have
power, generally or in specific cases, to permit employees or agents of the
Trust to have the same rights (or lesser rights) to acquire, hold, own and
dispose of property and businesses, to carry on businesses, and to accept
investment opportunities without offering them to the Trust, as the Trustees
have by virtue of this Section 4.7.
SECTION 4.8. Reliance on Experts. The Trustees and officers may
consult with counsel, engineers, brokers, appraisers, auctioneers, accountants,
investment bankers, securities analysts or other Persons (any of which may be a
firm in which one or more of the Trustees or officers is or are members or
otherwise interested) whose profession gives authority to a statement made by
them on the subject in question, and who are reasonably deemed by the Trustees
or officers in question to be competent, and the advice or opinion of such
Persons shall be full and complete personal protection to all of the Trustees
and officers in respect of any action taken or suffered by them in good faith
and in reliance on or in accordance with such advice or opinion. In discharging
their duties, Trustees and officers, when acting in good faith, may rely upon
financial statements of the Trust represented to them to be correct by any
officer of the Trust having charge of its books of account, or stated in a
written report by an independent certified public accountant fairly to present
the financial position of the Trust. The Trustees and officers may rely, and
shall be personally protected in acting, upon any instrument or other document
believed by them to be genuine.
SECTION 4.9. Surety Bonds. 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.
17
SECTION 4.11. Other Relationships Not Prohibited. The fact that:
(a) 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
(b) any Contracting Party may have a contract providing for
the rendering of any similar services to one or more other
corporations, trusts, associations, partnerships, limited partnerships
or other organizations, or have other business or interests,
shall not affect the validity of any contract for the performance and assumption
of services, duties and responsibilities to, for or of the Trust and/or the
Trustees or disqualify any Shareholder, Trustee or officer of the Trust from
voting upon or executing the same or create any liability or accountability to
the Trust or to the holders of Shares of any Series; provided, that, in the case
of any relationship or interest referred to in the preceding clause (i) on the
part of any Trustee or officer of the Trust, either (x) the material facts as to
such relationship or interest have been disclosed to or are known by the
Trustees not having any such relationship or interest and the contract involved
is approved in good faith by a majority of such Trustees not having any such
relationship or interest (even though such unrelated or disinterested Trustees
are less than a quorum of all of the Trustees), (y) the material facts as to
such relationship or interest and as to the contract have been disclosed to or
are known by the Shareholders entitled to vote thereon and the contract involved
is specifically approved in good faith by vote of the Shareholders, or (z) the
specific contract involved is fair to the Trust as of the time it is authorized,
approved or ratified by the Trustees or by the Shareholders.
SECTION 4.12. Payment of Trust Expenses. The Trustees are authorized
to pay or to cause to be paid out of the principal or income of the Trust, or
partly out of principal and partly out of income, and according to any
allocation to particular 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
18
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.
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 personally to conduct all the business of the
Trust and, consistent with their ultimate responsibility as stated herein, the
Trustees may appoint, employ or contract with one or more officers, employees
and agents to conduct, manage and/or supervise the operations of the Trust, and
may grant or delegate such authority to such officers, employees and/or agents
as the Trustees may, in their sole discretion, deem to be necessary or
desirable, without regard to whether such authority is normally granted or
delegated by trustees. 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 Bylaws, 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 of Trustees 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. One or more investment advisory or management
agreements, each with an investment manager or advisor (each, an
"Investment Advisor") whereby the Investment Adviser shall undertake
to furnish the Trust such
19
management, investment advisory or supervisory, administrative,
accounting, legal, statistical and research facilities and services,
and such other facilities and services, if any, as the Trustees shall
from time to time consider desirable, all upon such terms and
conditions as the Trustees may in their discretion determine to be not
inconsistent with this Declaration, the applicable provisions of the
1940 Act or any applicable provisions of the Bylaws. Any such advisory
or management agreement and any amendment thereto shall be subject to
approval by a Majority Shareholder Vote at a meeting of the
Shareholders of the Trust. Notwithstanding any provisions of this
Declaration, the Trustees may authorize the Investment Adviser
(subject to such general or specific instructions as the Trustees may
from time to time adopt) to effect purchases, sales, loans or
exchanges of portfolio securities of the Trust on behalf of the
Trustees or may authorize any officer or employee of the Trust or any
Trustee to effect such purchases, sales, loans or exchanges pursuant
to recommendations of the Investment Adviser (and all without further
action by the Trustees). Any such purchases, sales, loans and
exchanges shall be deemed to have been authorized by all of the
Trustees. The Trustees may, in their sole discretion, call a meeting
of Shareholders in order to submit to a vote of Shareholders at such
meeting the approval of continuance of any such investment advisory or
management agreement. If the Shareholders of any Portfolio should fail
to approve any such investment advisory or management agreement, the
Investment Adviser may nonetheless serve as Investment Adviser with
respect to any other Portfolio whose Shareholders shall have approved
such contract.
(b) Administration. One or more agreements, each with a
provider of administrative and clerical services whereby the other
party shall, as agent for the Trustees, but subject to the general
supervision of the Trustees and in conformity with any policies of the
Trustees with respect to the operations of the Trust and each
Portfolio, supervise all or any part of the operations of the Trust
and each Portfolio, and shall 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").
(c) Distribution. One or more agreements, each with a broker
or dealer in securities providing for the sale of Shares of any one or
more Series to net the Trust not less than the net asset value per
Share (as described in Section 6.2(h) hereof) and pursuant to which the
Trust may appoint the other party to such agreement as its principal
underwriter or sales agent for the distribution of such Shares. The
agreement shall contain such terms and conditions as the Trustees may
in their discretion determine to be not inconsistent with this
Declaration, the applicable provisions of the 1940 Act and any
applicable provisions of the Bylaws (any such agent being herein
referred to as a "Distributor" or a "Principal Underwriter", as the
case may be).
(d) Custodian. One or more agreements, each with a bank or
trust company having an aggregate capital, surplus and undivided
profits (as shown in its last published report) of at least two
million dollars ($2,000,000) as custodian of the Securities and cash
of the Trust and of each Portfolio and of the accounting records in
20
connection therewith (any such bank or trust company so appointed
being herein referred to as a "Custodian").
(e) Transfer and Dividend Disbursing Agency. One or more
agreements, each with an agent to maintain records of the ownership of
outstanding Shares, the issuance and redemption and the transfer
thereof (any such agent being herein referred to as a "Transfer
Agent"), and to disburse any dividends declared by the Trustees and in
accordance with the policies of the Trustees and/or the instructions
of any particular Shareholder to reinvest any such dividends (any such
agent being herein referred to as a "Dividend Disbursing Agent").
(f) Shareholder Servicing. One or more agreements, each with
an agent to provide service with respect to the relationship of the
Trust and its Shareholders, records with respect to Shareholders and
their Shares, and similar matters (any such agent being herein
referred to as a "Shareholder Servicing Agent").
(g) Accounting. One or more agreements, each with an agent
to handle all or any part of the accounting responsibilities, whether
with respect to the Trust's properties, Shareholders or otherwise (any
such agent being herein referred to as an "Accounting Agent").
The same Person may be the Contracting Party for some or all of the services,
duties and responsibilities to, for and of the Trust and/or the Trustees, and
the contracts with respect thereto may contain such terms interpretive of or in
addition to the delineation of the services, duties and responsibilities
provided for, including provisions that are not inconsistent with the 1940 Act
relating to the standard of duty of and the rights to indemnification of the
Contracting Party and others, as the Trustees may determine. Nothing herein
shall preclude, prevent or limit the Trust or a Contracting Party from entering
into sub-contractual arrangements relative to any of the matters referred to in
subsections (a) through (g) of this Section 5.2.
ARTICLE 6.
----------
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 mill ($.001) 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 authority (without any requirement of Shareholder approval) at any
time or from time to time,
21
(i) to establish and designate one or more
separate, distinct and independent
Portfolios, in addition to the Fixed
Income Portfolio and the Global Fixed
Income Portfolio 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 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
the authorization of the Shares thereof 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 Portfolio and the manner
in which the same may be amended (a "Certificate of Designation"), and
may provide that the number of Shares of such Series which may be
issued is unlimited, or may limit the number issuable. At any time
that there are no Shares outstanding of any particular Portfolio
previously established and designated, including any Portfolio
established and designated in Section 6.2 hereof, the Trustees may by
an instrument executed by a Majority of the Trustees (or by an officer
of the Trust pursuant to the vote of a Majority of the Trustees)
terminate such Portfolio and the establishment and designation thereof
and the authorization of its Shares (a "Certificate of Termination").
Each Certificate of Designation, Certificate of Termination and any
instrument amending a Certificate of Designation shall have the
22
status of an amendment to this Declaration of Trust, and shall be
filed and become effective as provided in Section 9.4 hereof.
(c) Character of Separate 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 interest in the assets of that Portfolio
shall be considered Shareholders of such Portfolio, but such
Shareholders shall also be considered Shareholders of the Trust for
purposes of receiving reports and notices and, except as otherwise
provided herein or in the Certificate of Designation of a particular
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 Certain Portfolios;
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 following two (2)
Portfolio(s): the Fixed Income Portfolio and the Global Fixed Income Portfolio.
The Shares of such Portfolios, and the Shares of any further Portfolios that may
from time to time be established and designated by the Trustees 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. In the event that there are any assets,
income, earnings, profits, and proceeds thereof, funds, or payments
which are not readily identifiable as belonging to
23
any particular Portfolio (collectively "General Items"), the Trustees
shall allocate such General Items to and among any one or more of the
Portfolios established and designated from time to time in such manner
and on such basis as they, in their sole discretion, deem fair and
equitable; and any General Items so allocated to a particular
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
particular Portfolio shall be charged with the liabilities in respect
of that Portfolio and all expenses, costs, charges and reserves
attributable to that Portfolio, and any general liabilities, expenses,
costs, charges or reserves of the Trust 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 established and designated from time to time in such
manner and on such basis as the Trustees in their sole discretion deem
fair and equitable. The indebtedness, expenses, costs, charges and
reserves 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. Any creditor of any Portfolio may look
only to the assets of that Portfolio to satisfy such creditor's debt.
(c) Dividends. Dividends and distributions on Shares of a
particular Portfolio 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 Portfolio,
from such of the income, accrued or realized, and capital gains,
realized or unrealized, and out of the assets belonging to that
Portfolio, as the Trustees may determine, after providing for actual
and accrued liabilities of that Portfolio. All dividends and
distributions on Shares of a particular Portfolio shall be distributed
pro rata to the Shareholders of that Portfolio 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 in connection with any dividend or distribution program or
procedure the Trustees may determine that no dividend or distribution
shall be payable on Shares as to which the Shareholder's 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. Such dividends and distributions may be made in cash
or Shares of that Portfolio 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.
24
(d) Liquidation. In the event of the liquidation or
dissolution of the Trust, the Shareholders of each Portfolio of which
Shares are outstanding shall be entitled to receive, when and as
declared by the Trustees, the excess of the Portfolio Assets over the
liabilities of such Portfolio. The assets so distributable to the
Shareholders of any particular 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 particular Portfolio may be authorized by vote of a
Majority of the Trustees, subject to the affirmative vote of "a
majority of the outstanding voting securities" of that 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 a
particular Portfolio 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 his Shares of that
Portfolio at a redemption price equal to the net asset value per Share
of that Portfolio 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.
Payment of the redemption price shall be in cash; provided, however,
that if the Trustees determine, which determination shall be
conclusive, that conditions exist which make payment wholly in cash
unwise or undesirable, the Trust may make payment wholly or partly in
Securities or other assets belonging to such Portfolio 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 Portfolio to require the Trust to redeem Shares of that
Portfolio 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
Portfolio 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 or of any
Portfolio, 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
value of the net assets of such Portfolio at such time (being the
current value of the assets 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
25
without limitation those with respect to rounding, established by the
Trustees from time to time. The Trustees may determine to maintain the
net asset value per Share of any Series 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 Series 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 his 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 Series 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
his investment in any Portfolio with respect to which the Trustees
shall have adopted any such procedure, to make the contribution
referred to in the preceding sentence in the event of any such loss.
(h) Transfer. All Shares of the Trust shall be transferable,
but transfers of Shares of a particular Portfolio will be recorded on
the Share transfer records of the Trust applicable to that Portfolio
only at such times as Shareholders shall have the right to require the
Trust to redeem Shares of that Portfolio 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 that Portfolio
(subject to the liabilities of that Portfolio), and each Share of any
particular Series shall be equal to each other Share thereof, but the
provisions of this sentence shall not restrict any distinctions
permissible under subsection (c) of this Section 6.2 that may exist
with respect to dividends and distributions on Shares of the same
Series. The Trustees may from time to time divide or combine the
Shares of any particular Series into a greater or lesser number of
Shares of that Series without thereby changing the proportionate
beneficial interest in the assets belonging to that Portfolio 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 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
they pertain.
(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 in
accordance with such requirements and procedures as the Trustees may
establish.
26
SECTION 6.3. Ownership of Shares. The ownership of Shares shall be
recorded on the books of the Trust or of a Transfer Agent or similar agent for
the Trust, which books shall be maintained separately for the Shares of each
Series that has been 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 Series 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 of 1986, as amended (or any
successor statute), 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.
SECTION 6.5. No Preemptive Rights. No Shareholder, by virtue of
holding Shares of any Series, shall have any preemptive 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 of Trust.
27
ARTICLE 7.
----------
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 the approval or termination in accordance
with the 1940 Act of any contract with a Contracting Party as provided in
Section 5.2 hereof as to which Shareholder approval is required by the 1940 Act,
(iii) with respect to any termination or 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 of Trust to the extent and as
provided in Section 9.3 hereof, (v) to the same extent as the stockholders of a
Massachusetts business corporation as to whether or not a court action,
proceeding or claim should or should not be brought or maintained derivatively
or as a class action on behalf of the Trust or any 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 of Trust, the Bylaws 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, 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 his 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 of Trust or the Bylaws
to be taken by Shareholders.
SECTION 7.3. Meetings. Meetings of Shareholders may be called by the
Trustees from time to time for the purpose of taking action upon any matter
requiring the vote or authority of the Shareholders as herein provided, or upon
any other matter deemed by the
28
Trustees to be necessary or desirable. Written notice of any meeting of
Shareholders shall be given or caused to be given by the Trustees by mailing
such notice at least seven (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 Bylaws, then
Shareholders holding at least ten percent (10%) of the Shares then outstanding
may call and give notice of such meeting, and thereupon the meeting shall be
held in the manner provided for herein in case of call thereof by the Trustees.
SECTION 7.4. Record Dates. For the purpose of determining the
Shareholders who are entitled to vote or act at any meeting or any adjournment
thereof, or who are entitled to participate in any dividend or distribution, or
for the purpose of any other action, the Trustees may from time to time close
the transfer books for such period, not exceeding thirty (30) days (except at or
in connection with the termination of the Trust), as the Trustees may determine;
or without closing the transfer books the Trustees may fix a date and time not
more than 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 shall be a quorum for the transaction of business at a
Shareholders' meeting, but any lesser number shall be sufficient for
adjournments. Any adjourned session or sessions may be held within a reasonable
time after the date set for the original meeting without the necessity of
further notice. A Majority Shareholder Vote at a meeting of which a quorum is
present shall decide any question, except when a different vote is required or
permitted by any provision of the 1940 Act or other applicable law or by this
Declaration of Trust or the By-Laws, or when the Trustees shall in their
discretion require a larger vote or the vote of a majority or larger fraction of
the Shares of one or more particular Series.
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 of Trust or the Bylaws or as shall be permitted by the Trustees)
29
consent to the action in writing and if the writings in which such consent is
given are filed with the records of the meetings of Shareholders, to the same
extent and for the same period as proxies given in connection with a
Shareholders' meeting. Such consent shall be treated for all purposes as a vote
taken at a meeting of Shareholders.
SECTION 7.7. Inspection of Records. The records of the Trust shall be
open to inspection by Shareholders to the same extent as is permitted
stockholders of a Massachusetts business corporation under the Massachusetts
Business Corporation Law.
SECTION 7.8. Additional Provisions. The Bylaws may include further
provisions for Shareholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
ARTICLE 8.
----------
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
of Trust is on file with the Secretary of The Commonwealth of Massachusetts and
shall recite to the effect that the same was executed or made by or on behalf of
the Trust or by them as Trustees or Trustee or as officers or officer, and not
individually, and that the obligations of such instrument are not binding upon
any of them or the Shareholders individually but are binding only upon the
assets and property of the Trust, or the particular 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
30
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 of Trust and their
duties as Trustees, and shall be under no liability for any act or omission in
accordance with such advice or for failing to follow such advice; and (iii) in
discharging their duties, the Trustees, when acting in good faith, shall be
entitled to rely upon the books of account of the Trust and upon written reports
made to the Trustees by any officer appointed by them, any independent public
accountant, and (with respect to the subject matter of the contract involved)
any officer, partner or responsible employee of a Contracting Party appointed by
the Trustees pursuant to Section 5.2 hereof. The Trustees as such shall not be
required to give any bond or surety or any other security for the performance of
their duties.
SECTION 8.3. Indemnification of Shareholders. If any Shareholder (or
former Shareholder) of the Trust shall be charged or held to be personally
liable for any obligation or liability of the Trust solely by reason of being or
having been a Shareholder and not because of such Shareholder's acts or
omissions or for some other reason, the Trust (upon 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,
31
whether civil or criminal, before any court or administrative or legislative
body, in which such Covered Person may be or may have been involved as a party
or otherwise or with which such Covered Person may be or may have been
threatened, while in office or thereafter, by reason of being or having been
such a Trustee or officer, director or trustee, except with respect to any
matter as to which it has been determined that such Covered Person (i) did not
act in good faith in the reasonable belief that such Covered Person's action was
in or not opposed to the best interests of the Trust or (ii) had acted with
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of such Covered Person's office (either and both
of the conduct described in (i) and (ii) being referred to hereafter as
"Disabling Conduct"). A determination that the Covered Person is entitled to
indemnification may be made by (i) a final decision on the merits by a court or
other body before whom the proceeding was brought that the Covered Person to be
indemnified was not liable by reason of Disabling Conduct, (ii) dismissal of a
court action or an administrative proceeding against a Covered Person for
insufficiency of evidence of Disabling Conduct, or (iii) a reasonable
determination, based upon a review of the facts, that the indemnitee was not
liable by reason of Disabling Conduct by (a) a vote of a majority of a quorum of
Trustees who are neither "interested persons" of the Trust as defined in Section
2(a)(19) of the 1940 Act nor parties to the proceeding, or (b) an independent
legal counsel in a written opinion. Expenses, including accountants' and counsel
fees so incurred by any such Covered Person (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines 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.
32
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.
ARTICLE 9.
----------
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 (or any particular Portfolio of 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 of such particular Portfolio,
as the case may be, 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 of
the Trust or of each particular Portfolio to distributable form in cash,
Securities or other property, or any combination thereof, and distribute the
proceeds to the Shareholders of the Trust or of each particular Portfolio, in
conformity with the provisions of Section 6.2(d) hereof.
SECTION 9.2. Reorganization. The Trustees may sell, convey and transfer
all or substantially all of the assets of the Trust, or the assets belonging to
any one or more Portfolios, to another trust, partnership, association or
corporation organized under the laws of any state of the United States, or may
transfer such assets to another Portfolio of the Trust, in exchange for cash,
Shares or other Securities (including, in the case of a transfer to another
Portfolio of the Trust, Shares of such other Portfolio), 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
33
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 of which the assets have so been transferred) among the Shareholders
of the Portfolio of which the assets have been so transferred; and if all of the
assets of the Trust have been so transferred, the Trust shall be terminated.
Nothing in this Section 9.2 shall be construed as requiring approval of
Shareholders for the Trustees 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 of Trust are granted subject to the reservation of the
right to amend this Declaration of Trust as herein provided, except that no
amendment shall repeal the limitations on personal liability of any Shareholder
or Trustee or the prohibition of assessment upon the Shareholders (otherwise
than as permitted under Section 6.2(g) hereof) without the express consent of
each Shareholder or Trustee involved. Subject to the foregoing, the provisions
of this Declaration of Trust (whether or not related to the rights of
Shareholders) may be amended at any time, so long as such amendment does not
adversely affect the rights of any Shareholder with respect to which such
amendment is or purports to be applicable and so long as such amendment is not
in contravention of applicable law, including the 1940 Act, by an instrument in
writing signed by a Majority of the Trustees (or by an officer of the Trust
pursuant to the vote of a Majority of the Trustees). Any amendment to this
Declaration of Trust that adversely affects the rights of all Shareholders may
be adopted at any time by an instrument in writing signed by a Majority of the
Trustees (or by an officer of the Trust pursuant to a vote of a Majority of the
Trustees) when authorized to do so by the vote in accordance with Section 7.1
hereof of Shareholders holding a majority of all the Shares outstanding and
entitled to vote, without regard to Series, or if said amendment adversely
affects the rights of the Shareholders of less than all of the 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 the instrument containing 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
34
such filing shall not be a prerequisite to the effectiveness of this Declaration
or of 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.
ARTICLE 10.
-----------
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 Bylaw adopted, or the identity of any officers elected, by the
Trustees, or (f) the existence or non-existence of any fact or facts which in
any manner relate to the affairs of the Trust, shall be conclusive evidence as
to the matters so certified in favor of any Person dealing with the Trustees, or
any of them, and the successors of such Person.
SECTION 10.4. References; Headings. The masculine gender shall include
the feminine and neuter genders. Headings are placed herein for convenience of
reference only and shall not be taken as a part of this Declaration or control
or affect the meaning, construction or effect hereof.
SECTION 10.5. Use of the Name "Warburg, Xxxxxx". Warburg, Xxxxxx
Counsellors, Inc. ("WPCI") has consented to the use by the Trust of the
identifying name "Warburg, Xxxxxx" which is a property right of WPCI. The Trust
will only use the name "Warburg, Xxxxxx" as a component of its name and for no
other purpose, and will not purport to grant to any third party the right to use
the name "Warburg, Xxxxxx" for any purpose. WPCI or any corporate affiliate of
WPCI may use or grant to others the right to use the name "Warburg, Xxxxxx" as
all or a portion of a corporate or business name or for any commercial purpose,
35
including a grant of such right to any other investment company. At the request
of WPCI, the Trust will take such action as may be required to provide its
consent to the use of such name by WPCI, or any corporate affiliate of WPCI, or
by any Person to whom WPCI or an affiliate of WPCI shall have granted the right
to the use of the name "Warburg, Xxxxxx". Upon the termination of any investment
advisory or management agreement into which WPCI and the Trust may enter, the
Trust shall, upon request by WPCI, cease to use the name "Warburg, Xxxxxx" as a
component of its name, and shall not use such name or initials as a part of its
name or for any other commercial purpose, and shall cause its officers and
Trustees to take any and all actions which WPCI may request to effect the
foregoing and to reconvey to WPCI or such corporate affiliate any and all rights
to such name.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and
seal, for himself and his assigns, and has thereby accepted the Trusteeship as
the Initial Trustee of Warburg, Xxxxxx Trust II hereby granted and agreed to the
provisions hereof, all as of the day and year first above written.
/s/ Xxxxx X. Xxxxx
_________________________________
Xxxxx X. Xxxxx
The undersigned Settlor of Warburg, Xxxxxx Trust II hereby accepts,
approves and authorizes the foregoing Agreement and Declaration of Trust of
Warburg, Xxxxxx Trust II.
/s/ Xxxxxxx X. Xxxxxxxx
________________________________
Xxxxxxx X. Xxxxxxxx
40
ACKNOWLEDGMENTS
---------------
M A S S A C H U S E T T S
Suffolk, ss.: December 16, 1996
Then personally appeared the above-named Xxxxx X. Xxxxx and
acknowledged the foregoing instrument to be his free act and deed.
Before me
/s/ Xxxxxxxx Xxxxxxxx
Notary Public
My commission expires: 1/16/98
M A S S A C H U S E T T S
Suffolk, ss.: December 16, 1996
Then personally appeared the above-named Xxxxxxx X. Xxxxxxxx and
acknowledged the foregoing instrument to be his free act and deed.
Before me
/s/ Xxxxxxxx Xxxxxxxx
Notary Public
My commission expires: 1/16/98
