DECLARATION OF TRUST
XXXXXXXX, XXXX & XXXX INVESTMENT TRUST
AUGUST 13, 1986
XXXXXXXX, AYER & WOOD INVESTMENT TRUST
AGREEMENT AND DECLARATION OF TRUST
Table of Contents
Page
RECITALS......................................................................1
ARTICLE I THE TRUST....................................................2
Section 1.1 Name.........................................................2
Section 1.2 Location.....................................................2
Section 1.3 Nature of Trust..............................................3
Section 1.4 Definitions..................................................3
ARTICLE II PURPOSE OF THE TRUST.........................................7
ARTICLE III POWERS OF THE TRUSTEES.......................................8
Section 3.1 Powers of General ...........................................8
(a) Investments..............................................9
(b) Disposition of Assets....................................9
(c) Ownership Powers........................................10
(d) Form of Holding.........................................10
(e) Reorganization, etc.....................................10
(f) Voting Trusts, etc......................................10
(g) Contracts, etc..........................................11
(h) Guarantee, etc..........................................11
(I) Partnerships, etc.......................................11
(j) Insurance...............................................11
(k) Pensions, etc...........................................11
(l) Power of Collection
and Litigation.........................................12
(m) Issuance and Repurchase
of Shares .............................................12
(n) Offices.................................................12
(o) Expenses................................................12
(p) Agents, etc.............................................12
(q) Accounts................................................13
(r) Valuation...............................................13
(s) Indemnification.........................................13
(t) General.................................................13
Section 3.2 Borrowings; Financings;
Issuance of Securities.....................................13
Section 3.3 Deposits....................................................14
Section 3.4 Allocations.................................................14
Section 3.5 Further Powers; Limitations.................................14
ARTICLE IV TRUSTEES AND OFFICERS.......................................15
Section 4.1 Number, Designation, Election,
Term, etc..................................................15
(a) Initial Trustee.........................................15
(b) Number..................................................15
(c) Election and Term.......................................15
(d) Resignation and
Retirement.............................................15
(e) Removal.................................................16
(f) Vacancies...............................................16
(g) Acceptance of Trusts....................................16
(h) Effect of Death,
Resignation, etc.......................................16
(i) Conveyance..............................................17
(j) No Accounting...........................................17
(k) Filings.................................................17
Section 4.2 Trustees' Meetings; Participation by
Telephone, etc.............................................17
Section 4.3 Committees; Delegation......................................18
Section 4.4 Officers....................................................18
Section 4.5 Compensation of Trustees
and Officers...............................................18
Section 4.6 Ownership of Shares and Securities
of the Trust...............................................19
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............................19
Section 4.8 Reliance on Experts.........................................19
Section 4.9 Surety Bonds................................................20
Section 4.10 Apparent Authority of
Trustees and Officers......................................20
Section 4.11 Other Relationships Not
Prohibited.................................................20
Section 4.12 Payment of Trust Expenses...................................21
Section 4.13 Ownership of the Trust Property.............................21
ARTICLE V DELEGATION OF MANAGERIAL
RESPONSIBILITIES...........................................22
Section 5.1 Appointment; Action by
Less than All Trustees.....................................22
Section 5.2 Certain Contracts...........................................22
(a) Advisory................................................23
(b) Administration..........................................24
(c) Distribution............................................24
(d) Custodian...............................................24
(e) Transfer and Dividend
Disbursing Agency.....................................24
(f) Shareholder Servicing...................................25
(g) Accounting..............................................25
ARTICLE VI FUNDS AND SHARES............................................25
Section 6.1 Description of Funds and Shares.............................25
(a) Shares; Funds; Series of Shares.........................25
(b) Establishment, etc. of Funds; Authorization
of Shares..............................................26
(c) Character of Separate Funds
and Shares Thereof.....................................26
(d) Consideration for Shares................................27
Section 6.2 Establishment and Designation
of Certain Funds; General
Provisions for All Funds...................................27
(a) Assets Belonging to Funds...............................27
(b) Liabilities of Funds....................................28
(c) Dividends...............................................28
(d) Liquidation.............................................29
(e) Voting..................................................29
(f) Redemption by Shareholder...............................29
(g) Redemption at the Option
of the Trust..........................................30
(h) Net Asset Value.........................................30
(i) Transfer................................................31
(j) Equality................................................31
(k) Right of Fractional Shares..............................31
(l) Conversion Rights.......................................31
Section 6.3 Ownership of Shares.........................................32
Section 6.4 Investments in the Trust....................................32
Section 6.5 No Preemptive Rights........................................32
Section 6.6 Status of Shares............................................32
ARTICLE VII SHAREHOLDERS' VOTING
POWERS AND MEETINGS........................................33
Section 7.1 Voting Powers...............................................33
Section 7.2 Number of Votes and Manner
of Voting; Proxies.........................................33
Section 7.3 Meetings....................................................34
Section 7.4 Record Dates................................................34
Section 7.5 Quorum and Required Vote....................................35
Section 7.6 Action by Written Consent...................................35
Section 7.7 Inspection of Records.......................................35
Section 7.8 Additional Provisions.......................................36
ARTICLE VIII LIMITATION OF LIABILITY;
INDEMNIFICATION............................................36
Section 8.1 Trustees, Shareholders, etc. Not
Personally Liable; Notice..................................36
Section 8.2 Trustees' Good Faith Action;
Expert Advice; No Bond or Surety...........................37
Section 8.3 Indemnification of Shareholders ............................37
Section 8.4 Indemnification of Trustees,
Officers, etc..............................................37
Section 8.5 Compromise Payment..........................................39
Section 8.6 Indemnification Not
Exclusive, etc.............................................39
Section 8.7 Liability of Third Persons
Dealing with Trustees......................................39
ARTICLE IX DURATION; REORGANIZATION;
AMENDMENTS.................................................40
Section 9.1 Duration and Termination
of Trust...................................................40
Section 9.2 Reorganization..............................................40
Section 9.3 Amendments; etc.............................................41
Section 9.4 Filing of Copies of
Declaration and Amendments.................................42
ARTICLE X MISCELLANEOUS...............................................42
Section 10.1 Governing Law...............................................42
Section 10.2 Counterparts................................................42
Section 10.3 Reliance by Third Parties...................................42
Section 10.4 References; Headings........................................43
Section 10.5 Use of the Name Xxxxxxxx, Xxxx & Xxxx.......................43
SIGNATURES ...........................................................44
ACKNOWLEDGMENTS..............................................................45
EXHIBIT 2
AGREEMENT AND DECLARATION OF TRUST
OF
XXXXXXXX, AYER & WOOD INVESTMENT TRUST
This AGREEMENT AND DECLARATION OF TRUST, made at Boston, Massachusetts
this 13th day of August, 1986, 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, Xxxxx X. Xxxxx, an individual residing in Natick, Massachusetts
(the "Settlor"), proposes to deliver to the Initial Trustee the sum of the 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 and other Securities, and interests therein, or calls or puts with
respect to any of the same, or financial futures contracts, or such other and
further investment media and other property as the Trustees may deem advisable,
which are not prohibited by law or the terms of this Declaration; and
WHEREAS, the Initial Trustee is willing to accept such sum, together with
any and all additions thereto and the income or increments thereof, upon the
terms, conditions and trusts hereinafter set forth; and
WHEREAS, the assets held by the Trustees may be divided into separate
Funds, each with its own separate investment portfolio and investment
objectives, policies and purposes, and the beneficial interest in each such Fund
shall be divided into transferable Shares, there being a separate Series of
Shares for each Fund, all in accordance with the provisions hereinafter set
forth; and
WHEREAS, it is desired that the trust established hereby (the "Trust") by
managed and operated as a trust with transferable shares under the laws of
Massachusetts, of the type commonly known and referred to as a
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Massachusetts business trust, in accordance with the provisions hereinafter set
forth;
NOW, THEREFORE, the Initial Trustee, for himself and his successors as
Trustees, hereby declares, and agrees with the Settlor, for himself and for all
Persons who shall hereafter become holders of Shares of Beneficial Interest of
the Trust, of any Series,--that the Trustees will hold the sum delivered to them
upon the execution hereof, and all other and further cash, Securities and other
property of every type and description which they may in any way acquire in
their capacity as such Trustees, together with the income therefrom and the
proceeds thereof, IN TRUST, to manage and dispose of the same for the benefit of
the holders from time to time of the Shares of the several Series being issued
and to be issued hereunder and in the manner and subject to the provisions
hereof, to wit:
ARTICLE I
THE TRUST
SECTION 1.1 Name. The name of the Trust shall be "XXXXXXXX, XXXX & XXXX
INVESTMENT TRUST", and so far as may the 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.
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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
known as a Massachusetts business trust. The Trust is not intended to be, shall
not be deemed to be, and shall not be treated as, a general partnership, limited
partnership, joint venture, corporation or joint stock company. The Shareholders
shall be beneficiaries and their relationship to the Trustees shall be solely in
that capacity in accordance with the rights conferred upon them hereunder.
SECTION 1.4. Definitions. As used in this Agreement and Declaration of
Trust, the following terms shall have the meanings set forth below unless the
context thereof otherwise requires:
"Accounting Agent" shall have the meaning designated in Section 5.2(g)
hereof.
"Administrator" shall have the meaning designated in Section 5.2 (b)
hereof.
"Affiliated Person" shall have the meaning designated in the 1940 Act.
"By-Laws" shall mean the By-Laws of the Trust, as amended from time to
time.
"Certificate of Designation" shall have the meaning designated in Section
6.1 hereof.
"Certificate of Termination" shall have the meaning designated in Section
6.1 hereof.
"Commission" shall have the meaning designated in the 1940 Act.
"Contracting Party" shall have the meaning designated in the preamble to
Section 5.2 hereof.
"Covered Person" shall have the meaning designated in Section 8.4 hereof.
"Custodian" shall have the meaning designated in Section 5.2(d) hereof.
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"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.
"Fund" or "Funds" shall mean one or more of the separate components of the
assets of the Trust which are now or hereafter established and designated under
or in accordance with the provisions of Article VI hereof.
"Fund Assets" shall have the meaning designated in Section 6.2(a) hereof.
"General Items" shall have the meaning designated in Section 6.2(a)
hereof.
"Initial Trustee" shall have the meaning designated 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 phrase shall mean such Trustee.
"Majority Shareholder Vote," as used with respect to the election of any
Trustee at a meeting of Shareholders, shall mean the vote for the election of
such Trustee of a plurality of all outstanding Shares, without regard to Series,
represented in person or by 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
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Shareholders, shall mean the vote for such action of the holders of that
majority of outstanding Shares (or where a separate vote of Shares of any
particular Series is to be taken, the affirmative vote of that majority of the
outstanding Shares of that Series) which consists of: (i) a majority of all
Shares (or of all 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 Section 7.5 hereof) is present; or (ii) if such action is to be
taken by written consent of Shareholders, a majority of all outstanding Shares
(or of all outstanding Shares of the particular Series) entitled to vote on such
action; provided further, that (iii) as used with respect to any action
requiring the affirmative vote of "a majority of the outstanding voting
securities," as the quoted phrase is defined in the 1940 Act, of the Trust or of
any Fund, "Majority Shareholder Vote" shall mean the vote for such action at a
meeting of Shareholders of the smallest majority of all outstanding shares of
the Trust (or the particular Series) entitled to vote on such action which
satisfies such 1940 Act voting requirement.
"1940 Act" shall mean the provisions of the Investment Company Act of 1940
and the rules and regulations thereunder, both as amended from time to time, and
any order or orders thereunder which may from time to time be applicable to the
Trust.
"Person" shall mean and include individuals as well as corporations,
limited partnerships, general partnerships, joint stock companies, joint
ventures, associations, banks, trust companies, business trusts or any other
organizations or entities whatsoever established under the laws of any
jurisdiction, whether or not considered to be legal entities, and governments
and agencies and political subdivisions thereof.
"Principal Underwriter" shall have the meaning designated in Section
5.2(c) hereof.
"Prospectus," as used with respect to any Fund or Series of Shares, shall
mean the prospectus relating to such Fund or Series which constitutes part of
the currently effective Registration Statement of the Trust under the Securities
Act of 1933, as such prospectus may be amended or supplemented from time to
time.
"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
Page5
instruments, stocks, shares or other equity ownership interests, and warrants,
options, futures, "when issued" or "delayed delivery" contracts, or other
instruments representing rights to subscribe for, purchase, receive or otherwise
acquire or to sell, transfer, assign or otherwise dispose of, and scrip,
certificates, receipts, or other instruments evidencing any ownership rights or
interests in, any of the foregoing, 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 Funds.
"Settlor" shall have the meaning designated 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 pledge 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 Fund of the Trust (as the context may require)
shall be divided from time to time, and includes fractions of Shares as well as
whole Shares. All reference herein to "Shares" which are not accompanied by a
reference to any particular Series or Fund shall be deemed to apply to
outstanding Shares without regard to Series number.
"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
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the Trust, irrespective of Series, and all outstanding Shares of all Series
shall vote as a single class.
"Statement of Additional Information," as used with respect to any Fund or
Series of Shares, shall mean the statement of additional information relating to
such Fund or Series which constitutes part of the currently effective
Registration Statement of the Trust under the Securities Act of 1933, a such
statement of additional information may be amend or supplemented from time to
time.
"Transfer Agent" shall have the meaning designated 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, 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 Fund to which such property is allocated.
"Trustees" shall mean, collectively, the Initial Trustee, as 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.
ARTICLE II
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
Page7
any manner, (i) Securities of all kinds, and (ii) precious metals and other
minerals, contracts to purchase and sell, and other interests of every nature
and kind in, such metals or minerals, and all as the Trustees in their
discretion shall determine to be necessary, desirable or appropriate, and to
exercise and perform any and every act, thing or power necessary, suitable or
desirable for the accomplishment of such purpose, the attainment of any of the
objects or the furtherance of any of the powers given hereby which are lawful
purposes, objects or powers of a trust with transferable shares of the type
commonly known as a Massachusetts business trust; and to do every other act or
acts or thing or things incidental or appurtenant to or growing out of or in
connection with the aforesaid objects, purposes or powers, or any of them, which
a trust of the type commonly known as a Massachusetts business trust is not now
or hereafter prohibited from doing, exercising or performing.
ARTICLE III
POWERS OF THE TRUSTEES
SECTION 3.1 Powers in General. The Trustees shall have, without other or
further authorization, full, entire, exclusive and absolute power, control and
authority over, and the 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
By-Laws not inconsistent with this Declaration of Trust providing for conduct of
the business and affairs of the trust and may amend and repeal them to the
extent that such By-Laws do not reserve that right to the Shareholders; they may
select, and from time to time change, the fiscal year of the Trust; they may
adopt and use a seal for the Trust, provided, that unless otherwise required by
the Trustees, it shall not be necessary to place the seal upon, and its absence
shall not impair the validity of, any document, instrument or other paper
executed and delivered by or on behalf of the Trust; they may from time to time
in accordance with the provisions of Section 6.1 hereof establish one or more
Funds to which they may allocate such of the Trust Property, subject to such
liabilities, as they shall deem appropriate, each such Fund to be operated by
the Trustees as a separate and distinct investment portfolio and with separately
defined investment objectives and policies and distinct investment purposes, all
as established by the Trustees, or
Page8
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 Execution 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 hereof 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 the Securities held by
the Trust 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 through one or more
Distributors or Principal Underwriters, or otherwise; they may 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, Dividend Disbursing, Accounting or Shareholder Servicing Agents, or
any other agent or consultant of the Trust, such authority, powers, functions
and duties as they consider desirable or appropriate for the conduct of the
business and affairs of the Trust, including without implied limitation the
power and authority to act in the name of the Trust and of the Trustees, to sign
documents and to act as attorney-in-fact for the Trustees. Without limiting the
foregoing and to the extent not inconsistent with the 1940 Act or other
applicable law, the Trustees shall have power and authority:
(a) Investments. To invest and reinvest cash and other property
forming part of the Trust 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
Page9
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 forming part
of the Trust Property, all as they shall deem proper;
(d) Form of Holding. To hold any Security or other property, whether
in bearer, unregistered or other negotiable form, or in the name of the
Trustees or of the Trust or of the fund to which such Securities or other
property have been assigned, 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 issuer, any
Security of which is or was held in the Trust or any Fund; to consent to
any contract, lease, mortgage, purchase or sale of property by any such
issuer; and to pay calls or subscriptions with respect to any Security
forming part of the Trust Property;
(f) Voting Trusts, etc. To join with other holders of any Securities
in acting through a committee, depository, voting trustee or otherwise,
and in that connection to deposit any Security with, or transfer any
Security to, any such committee, depository or trustee, and to delegate to
them such power and authority with relation to any Security (whether or
not so deposited or transferred) as the Trustees shall deem proper, and to
agree to pay, and to pay, such portion of the expenses and compensation of
such committee, depository or trustee as the Trustees shall deem proper;
Page10
(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 or their powers;
(h) Guarantees, etc. To endorse or guarantee the payment of any
notes or other obligations of any Person; to make contracts of guaranty or
suretyship, or otherwise assume liability for payment thereof; and to
mortgage or pledge the Trust Property or any part thereof to secure any
part 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 the entirely out of the Trust
property such insurance as they may deem necessary of appropriate for the
conduct of the business of the Trust, including, without limitation,
insurance policies insuring the Trust Property and payment of
distributions and principal of Securities included in the Trust Property,
and insurance policies insuring the Shareholders, Trustees, officers,
employees, consultants, Investment Advisers, Administrators, Distributors,
Principal Underwriters, or other agents or 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 any 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,
Page11
including the purchasing of life insurance and annuity contracts as a
means of providing such retirement and other benefits, for any or all of
the Trustees, officers, employees and agents of the Trust;
(l) Power of Collection and Litigation. To collect, xxx for and
receive all sums of money coming due to the Trust, to employ counsel, and
to commence, engage in, prosecute, intervene in, join, defend, compound,
compromise, adjust or abandon, in the name of the Trust, any and all
actions, suits, proceedings, disputes, claims, controversies, demands or
other litigation or legal proceedings relating to the Trust, the business
of the Trust, the Trust Property, or the Trustees, officers, employees,
agents and independent contracts 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 VI hereof, to apply to any such repurchase, redemption,
retirement, cancellation or acquisition of Shares of any Series any of the
Fund assets belonging to the Fund to which such Series relates, whether
constituting capital or surplus or otherwise, to the full extent now or
hereafter permitted by applicable law; provided, that any Shares belonging
to the Trust shall not be voted, directly or indirectly;
(n) Offices. To have one or more offices, and to carry on all or any
of the operations and business of the Trust, in any of the States,
Districts or Territories of the United States of America, 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,
engineers, escrow agents, depositories, consultants,
Page12
ancillary trustees, custodians, agents for collection, insurers, banks and
officers, as they think best for the business of the Trust or any Fund, to
supervise and direct the acts of any of the same, and to fix and pay their
compensation and define their duties;
(q) Accounts. To determine, and from time to time change, the method
or form in which the accounts of the Trust shall be kept;
(r) Valuation. Subject to the requirements of the 1940 Act, to
determine from time to time the value of all or any part of the Trust
Property and of any services, Securities, property or other consideration
to be furnished to or acquired by the Trust, and from time to time to
revalue all or any part of the Trust Property in accordance with such
appraisals or other information as is, in the Trustees' sole judgment,
necessary and satisfactory;
(s) Indemnification. In addition to the mandatory indemnification
provided for in Article VIII hereof and to the extent permitted by law, to
indemnify or enter into agreements with respect to indemnification with
any Person with whom the Trust has dealings, including, without
limitation, any independent contractor, to such extent as the Trustees
shall determine; and
(t) General. To do all such other acts and things and to conduct,
operate, carry on and engage in such other lawful businesses or business
activities as they shall in their sole and absolute discretion consider to
be incidental to the business of the Trust or any Fund, and to exercise
all powers which they shall in their discretion consider necessary, useful
or appropriate to carry on the business of the Trust or any Fund, to
promote any of the purposes for which the Trust is formed, whether or not
such things are specifically mentioned herein, in order to protect or
promote the interests of the Trust or any Fund, or otherwise to carry out
the provisions of the Declaration.
SECTION 3.2 Borrowings; Financings; Issuance of Securities. Subject to the
requirements of the 1940 Act, the Trustees shall have 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 of
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
Page13
times, even beyond the possible date of termination of the Trust; to issue
Securities of any type for such cash, property, services or other consideration,
and at such time or times and upon such terms, as they may deem advisable; and
to reacquire any such Securities. Any such Securities of the Trust may, at the
discretion of the Trustees, be made convertible into Shares of any Series, or
may evidence the right to purchase, subscribe for or otherwise acquire Shares of
any Series, at such times and on such terms as the Trustees may prescribe.
SECTION 3.3 Deposits. Subject to the requirements of the 1940 Act, the
Trustees shall have power to deposit any moneys or Securities included in the
Trust Property with any one or more banks, trust companies or other banking
institutions, whether or not such deposits will draw interest. Such deposits are
to be subject to withdrawal in such manner as the Trustees may determine, and
the Trustees shall have no responsibility for any loss which may occur by reason
of the failure of the bank, trust company or other banking institution with
which any such moneys or Securities have been deposited, other than liability
based on their gross negligence or willful fault.
SECTION 3.4 Allocations. The Trustees shall have power to determine
whether moneys or other assets received by the Trust shall be charged or
credited to income or capital, or allocated between income and capital,
including the power to amortize or fail to amortize any part or all specifically
mentioned. Any determination as to what is in the interests of the Trust made by
the Trustees in good faith shall be conclusive.
SECTION 3.5 Further Powers; Limitations. 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.
Page14
ARTICLE IV
TRUSTEES AND OFFICERS
SECTION 4.1 Number, Designation, Election, Term, etc.
(a) Initial Trustee. Upon his execution of this Declaration of Trust
or a counterpart hereof or some other writing in which he accepts such
Trusteeship and agrees to the provisions hereof, the individual whose
signature is affixed hereto as Initial Trustee shall become the Initial
Trustee hereof.
(b) Number. A Majority of the Trustees may 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
the Trustee 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 a meeting of Shareholders held prior to the
effective date of the Registration Statement of the Trust under the 1940
Act, and the term of office of any Trustees in office before such election
shall terminate at the time of such election. Subject to Section 16(a) of
the 1940 Act and to the preceding sentence of this subsection (c), the
Trustees shall have the power to set and alter the terms of office of the
Trustees, and at any time to lengthen or shorten their own terms or make
their terms of unlimited duration, to elect their own successors and,
pursuant to subsection (f) of this Section 4.1, to appoint Trustees to
fill vacancies; provided, that Trustees shall be elected by a Majority
Shareholder Vote at any such time or times as the Trustees shall determine
that such action is required under Section 16(a) of the 1940 Act or, if
not so required, that such action is advisable.
(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.
Page15
(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 all outstanding Shares of the
Trust without regard to Series, case 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 all outstanding
Shares of the Trust without regard to Series 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 unless
required by the 1940 Act need not) be filled by a Majority of the
Trustees, subject to the provisions of Section 16(a) of the 1940 Act,
through the appointment 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 Majority Shareholder Vote. Any such appointment or election shall take
effect immediately, except that any such appointment or election 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. Whenever any conditions to the appointment
or election of any individual as a Trustee hereunder who was not,
immediately prior to such election, acting as a Trustee 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. Such new Trustee shall accept such
appointment or election in writing and agree in such writing to be bound
by the provisions hereof, but the execution of such writing shall not be
requisite to the effectiveness of the appointment or election of a new
Trustee.
(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
Page16
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.
(i) Conveyance. In the event of the resignation or removal of a
Trustee or his otherwise ceasing to be a Trustee, such former Trustee or
his legal representative shall, upon request of the continuing Trustees,
execute and deliver such documents as may be required for the purpose of
consummating or evidencing the conveyance to the Trust or the remaining
Trustees of any Trust Property held in such former Trustee's name, but the
execution and delivery of such documents shall not be requisite to the
vesting of title to the Trust Property in the remaining Trustees, as
provided in subsection (g) of this Section 4.1 and in Section 4.13 hereof.
(j) No Accounting. Except to the extent required by the 1940 Act or
under circumstances which would justify his removal for cause, no Person
ceasing to be a Trustee (nor the estate of any such Person) shall be
required to make an accounting to the Shareholders or remaining Trustees
upon such cessation.
(k) Filings. Whenever there shall be a change in the composition of
the Trustees, the Trust shall cause to be filed in the office of the
Secretary of The Commonwealth of Massachusetts, and in each other place
where the Trust is required to file amendments to this Declaration, a
certificate executed by a Trustee or officer of the Trust as to the fact
of the appointment or election of an individual who was not theretofore a
Trustee or as to the resignation, removal or death of a Trustee, but the
filing of such certificate shall not be requisite to the effectiveness of
any such appointment, election, resignation or removal of a Trustee.
SECTION 4.2 Trustee's Meetings; Participation by Telephone, etc. An annual
meeting of Trustees shall be held not later than the last day of the fourth
month after the end of each fiscal year of the Trust and special meetings may be
held from time to time, in each case, upon the call of such officers as may be
thereunto authorized by the By-Laws or vote of the Trustees, or by any two (2)
Trustees, or pursuant to a vote of the Trustees, adopted at a duly constituted
meeting of the Trustees, and upon such notice as shall be provided in the
By-Laws. The Trustees may act with or without a meeting, and a
Page17
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 By-Laws, any action to be taken by the
Trustees may be taken by a majority of the Trustees present at a meeting of
Trustees (a quorum, consisting of at least a Majority of the Trustees, being
present), within or without Massachusetts. If authorized by the By-Laws, all or
any one or more Trustees may participate in a meeting of the Trustees or any
Committee thereof by means of a conference telephone or similar means of
communication by means of which all Persons participating in the meeting can
hear each other, and participation in a meeting pursuant to such means of
communication shall constitute presence in person at such meeting. The minutes
of any meeting thus held shall be prepared in the same manner as a meeting at
which all participants were present in person.
SECTION 4.3 Committees; Delegation. The Trustees shall have power,
consistent with their ultimate responsibility to supervise the affairs of the
Trust, to delegate from time to time to an executive committee, and to one or
more other committees, or to any single Trustee, or to any other Person, the
doing of such things and the execution of such deeds or other instruments,
either in the name of the Trust or the names of the Trustees or as their
attorney or attorneys in fact, or otherwise as the Trustees may from time to
time deem expedient, and any agreement, deed, mortgage, lease or other
instrument or writing executed by the Trustee or Trustees or other Person to
whom such delegation was made shall be valid and binding upon the Trustees and
upon the Trust.
SECTION 4.4. Officers. The Trustees shall annually elect such officers or
agents, who shall have such powers, duties and responsibilities as the Trustees
may deem to be advisable, and as they shall specify by resolution or in the
By-Laws. Except as may be provided in the By-Laws, any officer elected by the
Trustees may be removed at any time with or without cause. Any two (2) or more
offices may be held by the same individual.
SECTION 4.5 Compensation of Trustees and Officers. The Trustees shall fix
the compensation of all officers and Trustees. Without limiting the generality
of any of the provisions hereof, the Trustees shall be entitled to receive
reasonable compensation for their general service 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
Page18
receive compensation for a definite future period shall be expressly provided in
a written agreement with the Trust, duly approved by the Trustees) no Trustee or
officer removed shall have any right to any compensation as such Trustee or
officer for any period following his resignation or removal, or any right to
damages on account of his removal, whether his compensation be by the month, by
the year or otherwise.
SECTION 4.6 Ownership of Shares and Securities of the Trust. Any Trustee,
and any officer, employee or agent of the Trust, and any organization in which
any such Person is interested, may acquire, own, hold and dispose of Shares of
any Series and other Securities of the Trust for his or its individual account,
and may exercise all rights of a holder of such Shares or Securities to the same
extent and in the same manner as if such Person were not such a Trustee,
officer, employee or agent of the Trust; and the Trust may issue and sell, or
cause to be issued and sold, and may purchase any such Shares or other
Securities from any such Person or any such organization, subject only to the
general limitations, restrictions or other provisions applicable to the sale or
purchase of Shares of such Series or other Securities of the Trust generally.
SECTION 4.7 Right of Trustees and Officers to Own Property or to Engage in
Business; Authority of Trustees to Permit Others to Do Likewise. The Trustees,
in their capacity as Trustees, and (unless otherwise specifically directed by
vote of the Trustees) the officers of the Trust in their capacity as such, shall
not be required to devote their entire time to the business and affairs of the
Trust. Except as 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, brokers, appraisers, accountants, investment bankers, securities
analysts or other Persons (any of which may be a firm in which one
Page19
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
taking action, 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 or money or property paid,
loaned or delivered to or on the order of the Trustees or of such officer.
SECTION 4.11 Other Relationships Not Prohibited. The fact that:
(i) any of the Shareholders, Trustees or officers of the
Trust is a shareholder, director, officer, partner,
trustee, employee, investment adviser, principal
underwriter or distributor, or agent of or for any
Contracting Party or of or for any parent or
affiliate of any Contracting Party, or that any
Contracting Party or any parent or affiliate thereof
is a Shareholder or has an interest in the Trust or
any Fund, or that
(ii) any Contracting Party may have a contract providing for the
rendering of any similar services to one or more other
corporations, trusts, associations, partnerships, limited
Page20
partnerships or other organizations, or have other businesses
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 Shareholders;
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 relationships or interest and as to
the contract have been disclosed to or are known by the
Shareholders entitled to vote thereon and the contract involved
is specifically approved in good faith by vote of the
Shareholders, or (z) the specific contract involved is fair to
the Trust as of the time it is authorized, approved or ratified
by the Trustees or by the Shareholders.
SECTION 4.12 Payment of Trust Expenses. The Trustees are authorized to pay
or to cause to be paid out of the principal or income of the Trust, or partly
out of principal and partly out of income, and according to any allocation to
particular Funds made by them pursuant to Section 6.2(b) hereof, all expenses,
fees, charges, taxes and liabilities incurred or arising in connection with the
business and affairs of the Trust or in connection with the management thereof,
including, but not limited to, the Trustees' compensation and such expenses and
charges for the services of the Trust's officers, employees, Investment Adviser,
Administrator, Distributor or Principal Underwriter, auditor, counsel,
Custodian, Transfer Agent, Dividend Disbursing Agent, Account 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
Page21
by or in the name of one or more of the Trustees, or in the name of the Trust,
or of any particular Fund, or in the name of any other Person as nominee, on
such terms as the Trustees may determine; provided, that the interest of the
Trust and of the respective Fund therein is appropriately protected. The right,
title and interest of the Trustees in the Trust Property shall vest
automatically in each Person who may hereafter become a Trustee. Upon the
termination of the term of office of a Trustee as provided in Section 4.1(c),
(d) or (e) hereof, such Trustee shall automatically cease to have any right,
title or interest in any of the Trust Property, and the right, title and
interest of such Trustee in the Trust Property shall vest automatically in the
remaining Trustees. Such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to Section 4.1 (i) hereof.
ARTICLE V
DELEGATION OF MANAGERIAL RESPONSIBILITIES
SECTION 5.1 Appointment; Action by Less than All Trustees. The Trustees
shall be responsible for the general operating policy of the Trust and for the
general supervision of the business of the Trust conducted by officers, agents
or employees 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 or agents to
conduct, manage or supervise the operations of the Trust, and may grant or
delegate such authority to such officers, employees or agents as the Trustees
may, in their discretion, deem to be necessary or desirable, without regard to
whether such authority is normally granted or delegated by trustees. With
respect to those matters of the operation and business of the Trust which they
shall elect to conduct themselves, except as otherwise provided by this
Declaration or the By-Laws, if any, the Trustees may authorize any single
Trustee or defined group of Trustees or any committee consisting of a number of
Trustees less than the whole number 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 limitation of present and
Page22
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
organizations or individuals (any such Person being herein referred to as a
"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 or any Fund, or the Trustees, and to provide for the performance
and assumption of such other services, duties and responsibilities in addition
to those set forth below, as the Trustees may deem appropriate:
(a) Advisory. An agreement whereby an investment adviser
registered under the Investment Advisers Act of 1940, as amended,
shall undertake to furnish the Trust or any Fund such management,
investment advisory or supervisory, administrative, accounting,
legal, statistical and research facilities and services, and such
other facilities and services, if any, as the Trustees shall from
time to time consider desirable, all upon such terms and conditions
as the Trustees may in their discretion determine to be not
inconsistent with this Declaration, the applicable provisions of the
1940 Act or any applicable provisions of the By-Laws (any such
investment adviser being herein referred to as an "Investment
Adviser"). 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 an 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 Securities 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 an 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 Fund
should fail to approve any such investment advisory or management
Page23
agreement, the Investment Adviser may nonetheless serve as
Investment Adviser with respect to any other Fund whose Shareholders
shall have approved such contract.
(b) Administration. An agreement whereby an agent, subject to
the general supervision of the Trustees and in conformity with any
policies of the Trustees with respect to the operations of the Trust
and each Fund, will supervise all or any part of the operations of
the Trust and each Fund, and will provide all or any part of the
administrative and clerical personnel, office space and office
equipment and services appropriate for the efficient administration
and operations of the Trust and each Fund (any such agent being
herein referred to as an "Administrator").
(c) Distribution. An agreement providing for the sale of Shares
of any one or more Series to net the Trust not less than the net
asset value per Share (as described in Section 6.2(h) hereof) and
pursuant to which the Trust may appoint the other party to such
agreement as its principal underwriter or sales agent for the
distribution of such Shares. The agreement shall contain such terms
and conditions as the Trustees may in their discretion determine to
be not inconsistent with this Declaration, the applicable provisions
of the 1940 Act and any applicable provisions of the By-Laws (any
such agent being herein referred to as a "Distributor" or a
"Principal Underwriter," as the case may be).
(d) Custodian. An agreement appointing 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), and meeting the requirements of Section 17(f) of the
1940 Act as custodian of the Securities and similar investments of
the Trust or of any Fund and of the accounting records in connection
therewith (any such custodian being herein referred to as a
"Custodian").
(e) Transfer and Dividend Disbursing Agency. An agreement with
an agent to maintain records of the ownership of outstanding Shares,
the issuance and redemption and the transfer thereof (any such agent
being herein referred to as a "Transfer Agent"), and to disburse any
dividends declared by
Page24
the Trustees and in accordance with the policies of the Trustees or
the instructions of any particular Shareholder to reinvest any such
dividends (any such agent being herein referred to as a "Dividend
Disbursing Agent").
(f) Shareholder Servicing. An agreement with an agent to
provide service with respect to the relationship of the Trust and
its Shareholders, records with respect to Shareholders and their
Shares, and similar matters (any such agent being herein referred to
as a "Shareholder Servicing Agent").
(g) Accounting. An agreement with an agent to handle all or
any part of the accounting responsibilities, whether with respect to
the Trust Property, Shareholders or otherwise (any such agent being
herein referred to as an "Accounting Agent").
The same Person may be a Contracting Party for some or all of the services,
duties and responsibilities to, for and of the Trust 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 VI
FUNDS AND SHARES
Section 6.1 Description of Funds and Shares
(a) Shares; Funds; Series of Shares. The beneficial interest in the
Trust shall be divided into Shares having a nominal or par value of one
cent ($.01) per Shares, and all of one class, of which an unlimited number
may be issued. The Trustees shall have the authority from time to time to
establish and designate one or more separate, distinct and independent
Funds into which the assets of the Trust shall be divided, and to
authorize a separate Series of Shares for each such Fund (each of which
Series, including without limitation the Series authorized in Section 6.2
hereof, shall represent interests only in the Fund with respect to which
such Series was authorized), as they deem necessary or
Page25
desirable. Except as otherwise provided as to a particular Fund 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 Fund and the assets and affairs thereof as they
have under this Declaration with respect to the Trust and the Trust
Property in general.
(b) Establishment, etc. of Funds; Authorization of Shares. The
establishment and designation of any Fund in addition to the Fund
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 Fund and the manner in which the same may be amended (a
"Certificate of Designation"). A Certificate of Designation may provide
that the number of Shares of any 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 Fund previously established and
designated, including any Fund established and designated in Section 6.2
hereof, the Trustees may by an instrument (a "Certificate of Termination")
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 Fund
and the establishment and designation thereof and the authorization of its
Shares. Each Certificate of Designation, Certificate of Termination and
any instrument amending a Certificate of Designation shall have the status
of an amendment to this Declaration of Trust, and shall be filed and
become effective as provided in Section 9.3 hereof.
(c) Character of Separate Funds and Shares Thereof. Each Fund
established hereunder shall be a separate component of the assets of the
Trust, and the holders of Shares of the Series representing the beneficial
interest in the assets of that Fund shall be considered Shareholders of
such Fund, but such Shareholders shall also be considered Shareholders of
the Trust for purposes of receiving reports and notices and, except as
otherwise provided herein or in the Certificate of Designation of a
particular Fund as to such Fund, or as required by the 1940 Act or other
applicable law, the right to vote, all without distinction by Series. The
Trustees shall have exclusive power without the requirement of Shareholder
approval to establish and designate such separate and distinct Funds, and
to fix and determine
Page26
the relative rights and preferences as between the Shares of the
respective Funds 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 Funds shall have separate voting rights or no voting
rights.
(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 nonassessable (but may be subject to
mandatory contribution back to the Trust as provided in Section 6.2(h)
hereof). The Trustees may classify or reclassify any unissued Shares, or
any Shares of any Series previously issued and required by the Trust, into
Shares of one or more other Funds that may be established and designated
from time to time.
SECTION 6.2 Establishment and Designation of Certain Funds; General
Provisions for All Funds. Without limiting the authority of the Trustees set
forth in Section 6.1(a) hereof to establish and designate further Funds, there
is hereby establishing and designated the following Fund: "Xxxxxxxx Bond Fund."
The Shares of such Fund, and the Shares of any further Fund that may from time
to time by established and designated by the Trustees shall (unless the Trustees
otherwise determine with respect to some further Fund at the time of
establishing and designating the same) have the following relative rights and
preferences:
(a) Assets Belonging to Funds. Any portion of the Trust Property
allocated to a particular Fund, and all consideration received by the
Trust for the issue or sale of Shares of such Fund, together with all
assets in which such consideration is invested or reinvested, all
interest, dividends, income, earnings, profits and gains 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 Fund and shall irrevocably belong to that Fund for all purposes, and
shall be so recorded upon the books of account of
Page27
the Trust, and the Shareholders of such Fund shall not have, and shall be
conclusively deemed to have waived, any claims to the assets of any Fund
of which they are not Shareholders. Such consideration, assets, interest,
dividends, income, earnings, profits, gains and proceeds, together with
any General Items allocated to that Fund as provided in the following
sentence, are herein referred to collectively as "Fund Assets" of such
Fund, and as assets "belonging to" that Fund. In the event that there are
any assets, interest, dividends, income, earnings, profits, gains and
proceeds which are not readily identifiable as belonging to any particular
Fund (collectively "General Items"), the Trustees shall allocate such
General Items to and among any one or more of the Funds 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 Fund shall belong to and be part of the Fund
Assets of that Fund. Each such allocation by the Trustees shall be
conclusive and binding upon the Shareholders of all Funds for all
purposes.
(b) Liabilities of Funds. The assets belonging to each particular
Fund shall be charged with the liabilities in respect of that Fund and all
expenses, costs, charges and reserves attributable to that Fund, and any
general liabilities, expenses, costs, charges or reserves of the Trust
which are not readily identifiable as pertaining to any particular Fund
shall be allocated and charged by the Trustees to and among any one or
more of the Funds 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 Fund are herein referred
to as "liabilities of" that Fund. Each allocation of liabilities,
expenses, costs, charges and reserves by the Trustees shall be conclusive
and binding upon the Shareholders of all Funds for all purposes. Any
creditor of any Fund may look only to the assets belonging to that Fund to
satisfy such creditor's debt.
(c) Dividends. Dividends and distributions on Shares of a particular
Fund may be paid with such frequency as the Trustees may determine, which
may be daily or otherwise pursuant to a standing resolution or resolutions
adopted only once or with such frequency as the Trustees may determine, to
the Shareholders of that Fund, from such of the income, accrued or
realized, and capital gains, realized or unrealized, and out of the assets
belonging to that Fund, as the Trustees may determine, after providing for
actual and accrued liabilities of that
Page28
Fund. All dividends and distributions on Shares of a particular Fund shall
be distributed pro rata to the Shareholders of that Fund in proportion to
the number of such Shares held by such holders at the date and time of
record established for the payment of such dividends or distributions,
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 payment have not been received by the time 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 which have not yet been redeemed or
repurchased. Such dividends and distributions may be made in cash,
property or Shares of that Fund, or a combination thereof, as determined
by the Trustees, or pursuant to any program that the Trustees may have in
effect at the time for the election by each Shareholder of the mode of the
making of such dividend or distribution to that Shareholder. Any such
dividend or distribution paid in Shares shall be paid at the net asset
value thereof as determined in accordance with subsection (h) of this
Section 6.2.
(d) Liquidation. In the event of the liquidation or dissolution of
the Trust, the Shareholders of each Fund of which Shares are outstanding
shall be entitled to receive, when and as declared by the Trustees, the
excess of the Fund Assets over the liabilities of such Fund. The assets so
distributable to the Shareholders of any particular Fund shall be
distributed among such Shareholders in proportion to the number of Shares
of that Fund held by them and recorded on the books of the Trust. The
liquidation of any particular Fund of which Shares are outstanding may be
authorized by a Majority of the Trustees.
(e) Voting. The Shareholders shall have the voting rights set forth
in or determined under Article VII hereof.
(f) Redemption by Shareholder. Each holder of Shares of a particular
Fund 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 Fund at a redemption price equal to
the net asset value per Share of that Fund next determined in accordance
with subsection (h) of this Section 6.2 after such 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
Page29
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 Fund 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 Fund to require the Trust to redeem Shares of that Fund during any
period or at any time when and to me extent permissible under the 0000
Xxx.
(g) Redemption at the Option of the Trust. Each Share of any Fund
shall be subject to redemption at any time at the option of the Trust at
the redemption price which would be applicable if such Share were then
being redeemed by a Shareholder pursuant to subsection (f) of this Section
6.2: (i) if the Trustees determine in their sole discretion that failure
to so redeem may have materially adverse consequences to the holders of
Shares of the Trust or of any Fund, or (ii) upon such other conditions
with respect to maintenance of Shareholder accounts of a minimum amount as
may from time to time be determined by the Trustees and set forth in the
then current Prospectus or Statement of Additional Information of such
Fund. Upon such redemption the holders of the Shares so redeemed shall
have no further right with respect thereto other than to receive payment
of such redemption price.
(h) Net Asset Value. The net asset value per Share of any Fund at
any time shall be the quotient obtained by dividing the value of the net
assets of such Fund at such time (being the current value of the assets
belonging to such Fund, less the then existing liabilities of such Fund)
by the total number of Shares of the Fund then outstanding, all determined
in accordance with the methods and procedures, including without
limitation those with respect to rounding, established by the Trustees
from time to time. The Trustees may determine to maintain the net asset
value per Share of any Fund at a designated constant dollar amount and in
connection therewith may adopt procedures not inconsistent with the 1940
Act for the continuing declaration of income attributable to that Fund as
dividends payable in additional Shares of that Fund at the designated
constant dollar amount and for the handling of any losses attributable to
that Fund. Such procedures may provide that in the event of any loss each
Shareholder shall be deemed to have contributed to the shares of
beneficial interest account of that Fund his pro rata portion of the total
number of Shares required to be
Page30
canceled in order to permit the net asset value per Share of that Fund 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 Fund with respect to which the
Trustees shall have adopted any such procedure, to make the contribution
referred to in the preceding sentence in the event of any such loss.
(i) Transfer. All Shares of each particular Fund shall be
transferable, but transfers of Shares of a particular Fund shall be
recorded on the Share transfer records of the Trust applicable to that
Fund only at such times as Shareholders have the right to require the
Trust to redeem Shares of that Fund and at such other times as may be
permitted by the Trustees.
(j) Equity. All Shares of each particular Fund shall represent an
equal proportionate interest in the assets belonging to that Fund (subject
to the liabilities of that Fund), and each Share of any particular Fund
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 Fund. The Trustees may from time to
time divide or combine the Shares of any particular Fund into a greater or
lesser number of Shares of that Fund without thereby changing the
proportionate beneficial interest in the assets belonging to that Fund or
in any way affecting the rights of the holders of Shares of any other
Fund.
(k) 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 and
liquidation.
(l) 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 Fund shall have the right to convert said Shares
into Shares of one or more other Funds in accordance with such
requirements and procedures as the Trustees may establish.
Page31
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 Fund held from time to time by each such Shareholder.
The holders of Shares of each Fund shall upon demand disclose to the
Trustees in writing such information with respect to their direct and indirect
ownership of Shares of such Fund as the Trustees deem necessary to comply with
the provisions of the Internal Revenue Code of 1954, as amended, or to comply
with the requirements of any other authority.
SECTION 6.4 Investments in the Trust. The Trustees may accept investments
in any Fund of the Trust from such Persons and on such terms and for such
consideration, not inconsistent with the provisions of the 1940 Act, as they
from time to time authorize. The Trustees may authorize any Distributor or
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 such orders, whether or not conforming to such authorized terms.
SECTION 6.5 No Preemptive Rights. No Shareholder, by virtue of holding
Shares of any Fund, shall have any preemptive or other right to subscribe to any
additional Shares of that Fund, or to any Shares of any other Fund, or any other
Securities of 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 any 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
Page32
the Trust shall not operate to terminate the Trust or any Fund, nor to entitle
the representative of any deceased Shareholder to an accounting or to take any
action in court or elsewhere against the Trust or the Trustees, but only to the
rights of said decedent under this Declaration of Trust.
ARTICLE VII
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 7.1 Voting Powers. 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 of any contract as to
which Shareholder action is required by the 1940 Act, (iii) with respect to any
termination or reorganization of the Trust or any Fund 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 Fund, or the Shareholders of any of them (except that a
Shareholder of a particular Fund shall not in any event be entitled to maintain
a derivative or class action on behalf of any other Fund or the Shareholders
thereof), and (vi) with respect to such additional matters as may be required by
the 1940 Act, this Declaration of Trust, the By-Laws, or any registration with
the Commission or any State, or as the Trustees may consider necessary or
desirable. Each matter required or permitted to be voted upon at a meeting or by
written consent of Shareholders shall be submitted to a separate vote of the
outstanding Shares of each Fund entitled to vote thereon; provided, that (i)
when required by this Declaration or by the 1940 Act, actions of Shareholders
shall be taken by Single Class Voting and (ii) when the Trustees determine that
any mater to be submitted to a vote of Shareholders affects only the right or
interests of Shareholders of one or more but not all Funds, then only the
Shareholders of the Funds 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 of 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
Page33
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 By-Laws to be taken
by Shareholders.
SECTION 7.3 Meetings. Meetings of Shareholders may be called by the
Trustees from time to time for the purpose of taking action upon any matter
requiring the vote or authority of Shareholders as herein provided, or upon any
other matter deemed by the Trustees to be necessary or desirable. Written notice
or 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 entitled to vote or act at any such meeting at the Shareholder's
address as it appears are the records of the Trust. The Trustees shall promptly
call and give notice of a meeting of Shareholders for the purpose of voting upon
removal of any Trustee of the Trust when requested to do so in writing by
Shareholders holding not less than ten percent (10%) of the Shares then
outstanding. If the Trustees shall fail to call or give notice of any meeting of
Shareholders for a period of thirty (30) days after written application by
Shareholders holding at least ten percent (10%) of the Shares then outstanding
requesting that a meeting be called for any other purpose requiring action by
the Shareholders as provided herein or in the By-Laws, then Shareholders holding
at least ten percent (10%) of the Shares then outstanding may call and give
notice of such meeting, and thereupon the meeting shall be held in the manner
provided for herein in case of call thereof by the Trustees.
SECTION 7.4 Record Dates. For the purpose of determining the Shareholders
who are entitled to vote or act at any meeting or any adjournment thereof, or
who are entitled to participate in any dividend or distribution, or for the
purpose of any other action, the Trustees may from time to time close the
transfer books for such period, not exceeding thirty (30) days (except at or in
connection with the termination of the Trust), as the Trustees may determine; or
without closing the transfer books the Trustees may fix a date and time not more
than ninety (90) days prior to the date of any meeting of Shareholders or other
action as the date and time of record for the determination of Shareholders
entitled to vote at such meeting or any adjournment thereof or to be treated as
Shareholders of record for purposes of such other action, and any Shareholder
who was a Shareholder at the date and time so fixed shall be entitled to vote at
such meeting or any adjournment thereof or to be treated as a Shareholder of
record for purposes of such other
Page34
action, even though he has since that date and time disposed of his Shares
(other than through redemption or repurchase by the Trust), 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. Fifty percent (50%) 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 shall decide any question, except
when a different vote is required or permitted by 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 provision of this Declaration or
Trust or the By-Laws or as shall be permitted by the Trustees) consent to the
action in writing and if the writings in which such consent is given are filed
with the records of the meetings of Shareholders, to the same extent and for the
same period as proxies given in connection with a Shareholders' meeting. Such
consent shall be treated for all purposes as a vote taken at a meeting of
Shareholders.
SECTION 7.7 Inspection of Records. The records of the Trust shall be open
to inspection by Shareholders to the same extent as is permitted stockholders of
a Massachusetts business corporation under the Massachusetts Business
Corporation Law.
SECTION 7.8 Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
Page35
SECTION 8.1 Trustees, Shareholders, etc. Not Personally Liable; Notice.
The Trustees and officers of the Trust, in incurring any debts, liabilities or
obligations, or in limiting or omitting any other actions for or in connection
with the Trust, are or shall be deemed to be acting as Trustees or officers of
the Trust and not in their own capacities. No Shareholder shall be subject to
any personal liability whatsoever in tort, contract or otherwise to any other
Person in connection with the assets or affairs of the Trust or of any Fund; and
subject to Section 8.4 hereof, no Trustee, officer, employee or agent of the
Trust shall be subject to any personal liability whatsoever in tort, contract or
otherwise to any other Person in connection with the assets or affairs of the
Trust or of any Fund, unless only that arising from his own willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of his office or the discharge of his functions. The Trust (or if the
matter relates only to a particular Fund, that Fund) shall be solely liable for
any and all debts, claims, demands, judgments, decrees, liabilities or
obligations of any and every kind, against or with respect to the Trust or such
Fund in tort, contract or otherwise in connection with the assets or affairs of
the Trust or of such Fund, and all Persons dealing with the Trust or any Fund
shall be deemed to have agreed that resort shall be had solely to the Trust
Property or the Fund Assets of such Fund, 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 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 officers, and not individually, and that the obligations of
such instrument are not binding upon any of them or Shareholders individually,
but are binding only upon the Trust Property, or the Fund Assets of the
particular Fund in questions, as the case may be, but the omission thereof shall
not operate to bind any Trustee or officer or Shareholder individually, or to
subject the Fund Assets of any Fund to the obligations of any other Fund.
SECTION 8.2 Trustees' Good Faith Action; Expert Advice; No Bond or Surety.
The exercise by the Trustees of their powers and discretions hereunder shall be
binding upon everyone interested. Subject to Section 8.4 hereof, a Trustee shall
be liable for his own willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the office of
Trustee, and for nothing else, and shall not be liable for errors of judgment or
mistakes of fact or law. Subject to the foregoing, (i) the Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing of
Page36
any officer, agent, employee, consultant or Contracting Party, nor shall any
Trustee by responsible for the act or omission of any other Trustee; (ii) the
Trustees may take advice or 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. 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 his heirs,
executors, administrators or other legal representatives, or in the case of a
corporation or other entity, its corporate or other general successor) shall be
entitled (but solely out of the assets of the Fund of which such Shareholder or
former Shareholder is or was the holder of Shares) to be held harmless from and
indemnified against all loss and expense arising from such liability.
SECTION 8.4 Indemnification of Trustees, Officers, etc. Subject to the
limitations set forth in this Section 8.4, the Trust shall indemnify (from the
assets of the Fund or Funds 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 (referred to hereinafter,
together with such Person's heirs, executors, administrators or other legal
representatives, as a "Covered Person") against all liabilities, including but
not limited to amounts paid in satisfaction of judgments, in compromise or as
fines and penalties, and expenses, including reasonable accountants' and counsel
fees, incurred by any Covered Person in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or criminal,
before any court or administrative or legislative body, in which such Covered
Person may be or may have been involved as a party or otherwise or with which
such Covered Person may or may have been threatened, while in office
Page37
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 his 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 his
office (either and both of the conduct described in clauses (i) and (ii) above
being referred to hereinafter 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 such Covered Person was not liable by reason of Disabling Conduct,
(ii) dismissal of a court action or an administrative proceeding against such
Covered Person for insufficiency of evidence of Disabling Conduct, or (iii) a
reasonable determination, based upon a review of the facts, that such Covered
Person was not liable by reason of Disabling Conduct by (a) vote of a majority
of a quorum of Trustees who are neither "interested persons" of the Trust as the
quoted phrase is defined in Section 2(a) (19) of the 1940 Act nor parties to the
action, suit or other proceeding in question and against whom no other action,
suit or proceeding on the same or similar grounds is then or has been pending or
threatened (such quorum of such Trustees being referred to hereinafter as the
"Disinterested Trustees"), or (b) an independent legal counsel in a written
opinion. Expenses, including accountants' and counsel fees so incurred by any
such Covered Person (excluding amounts paid in satisfaction of judgments, in
compromise or as fines or penalties), may be paid from time to time by the Fund
or Funds to which the conduct in question related in advance of the final
disposition of any such action, suit or proceeding; provided, that the Covered
Person shall have undertaken to repay the amounts so paid if it is ultimately
determined that indemnification of such expenses is not authorized under this
Article VIII and if (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 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
entitled to indemnification hereunder.
SECTION 8.5 Compromise Payment. As to any matter disposed of by a
compromise payment by any 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 the Disinterested
Trustees or (ii) by an independent legal counsel in a written opinion.
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Approval by the Disinterested Trustees pursuant to clause (i) or by independent
legal counsel pursuant to clause (ii) shall not prevent the recovery from any
Covered Person of any amount paid to such Covered Person in accordance with
either of such clauses as indemnification if such Covered Person is subsequently
adjudicated by a court of competent jurisdiction not to have acted in good faith
in the reasonable belief that such Covered Person's action was in or not opposed
to the best interests of the Trust or to have been liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such Covered
Person's office.
SECTION 8.6 Indemnification Not Exclusive, etc. The right of
indemnification provided by this Article VIII shall not be exclusive of or
affect any other rights to which any Covered Person may be entitled. Nothing
contained in this Article VIII shall affect any rights to indemnification to
which personnel of the Trust, other than Trustees and officers, and other
Persons may be entitled by contract or otherwise under law, nor the power of the
Trust to purchase and maintain liability insurance on behalf of any such Person.
SECTION 8.7 Liability of Third Persons Dealing with Trustees. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
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ARTICLE IX
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 the trust or any Fund or Series of Shares shall
operate to terminate the Trust. The Trust may be terminated at any time by a
Majority of the Trustees, subject to the favorable vote of the holders of not
less than a majority of the Shares outstanding and entitled to vote of each Fund
of the Trust, or by an instrument or instruments in writing without a meeting,
consented to by the holders of not less than a majority of such Shares, or by
such greater or different vote of Shareholders of any Series as may be
established by the Certificate of Designation by which such Series was
authorized. Upon termination, after paying or otherwise providing for all
charges, taxes, expenses and liabilities, whether due or accrued or anticipated
as may be determined by the Trustees, the Trust shall in accordance with such
procedures as the Trustees consider appropriate reduce the remaining assets to
distributable form in cash, Securities or other property, or any combination
thereof, and distribute the proceeds to the Shareholders, in conformity with the
provisions of Section 6.2(d) hereof.
SECTION 9.2 Reorganization. The Trustees may sell, convey and transfer all
or substantially all of the Trust Property, or the assets belonging to any one
or more Funds, to another trust, partnership, association, corporation or other
entity, or may transfer such assets to another Fund of the Trust, in exchange
for cash, Shares or other Securities (including, in the case of a transfer to
another Fund of the Trust, Shares of such other Fund), or to the extent
permitted by law then in effect, may merge or consolidate the Trust or any Fund
with any other trust, partnership, association, corporation or other entity, all
upon such terms and conditions and for such consideration when and as authorized
by a Majority of the Trustees, subject to the favorable vote of the holders of
not less than a majority of the Shares outstanding and entitled to vote of each
Fund 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, 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. 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 the liabilities of, and any other differences among, the
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various Funds of which the assets have been so transferred, among the
Shareholders of the Fund of which the assets have been so transferred; and if
all of the assets of the Trust have been so transferred, the Trust shall be
terminated. Nothing in this Section 9.2 shall be construed as requiring approval
of Shareholders for the Trustees 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 Fund 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 adversely affect 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(h)) 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 matters to which such amendment is
or purports to be applicable and so long as such amendment is not in
contravention of applicable law, including the 1940 Act, by an instrument in
writing signed by a Majority of the Trustees (or by an officer of the Trust
pursuant to the vote of a Majority of the Trustees). Any amendment to this
Declaration of Trust that adversely affects the rights of all Shareholders may
be adopted at any time by an instrument in writing signed by a Majority of the
Trustees (or by an officer of the Trust pursuant to a vote of a Majority of the
Trustees) when authorized to do so by the vote in accordance with Section 7.1
hereof of Shareholders holding a majority of all the shares outstanding and
entitled to vote, without regard to Series, or if said amendment adversely
affects the rights of the Shareholders of less than all of the Funds, by the
vote of the holders of a majority of all the Shares entitled to vote of each
Fund so affected. A Certificate of Designation establishing and designating any
Fund in addition to the Fund established and designated in Section 6.2 hereof
and authorizing of the Shares thereof shall not constitute an amendment to this
Declaration which adversely affects the rights of any Shareholder. Subject to
the foregoing, any amendment shall be effective when an 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 by a Trustee or officer of the
Trust and filed as provided in Section 9.4 hereof.
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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
principal office of the Trust where it may be inspected by any Shareholder, and
one copy of each such instrument shall be filed with the Secretary of The
Commonwealth of Massachusetts, as well as with any other governmental office
where such filing may from time to time be required by the laws of
Massachusetts. A restated Declaration, integrating into a single instrument all
of the provisions of this Declaration which are then in effect and operative,
may be executed from time to time by a Majority of the Trustees and shall, upon
filing with Secretary of The Commonwealth of Massachusetts, be conclusive
evidence of all amendments contained therein and may thereafter be referred to
in lieu of the original Declaration and the various amendments thereto.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Governing Law. This Declaration of Trust is executed and
delivered in The Commonwealth of Massachusetts and with reference to the laws
thereof, and the rights of all parties and the construction and effect of every
provision hereof shall be subject to and construed according to the laws of said
Commonwealth.
SECTION 10.2 Counterparts. This Declaration of Trust and any amendment
hereto may be simultaneously executed in several counterparts, each of which so
executed shall be deemed to be an original, and such counterparts, together,
shall constitute but one and the same instrument, which shall be sufficiently
evidenced by any such original counterpart.
SECTION 10.3 Reliance by Third Parties. Any certificate executed by an
individual who, according to the records in the office of the Secretary of The
Commonwealth of Massachusetts appears to be a Trustee hereunder or an officer of
the Trust, certifying to: (i) the number or identity of Trustees or
Shareholders, (ii) the due authorization of the execution of any instrument or
writing, (iii) the form of any vote passed at a meeting of Trustees or
Shareholders, (iv) 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, (v) the form of any By-Law adopted, or the identity
of any officers elected, by the Trustees, or (vi) the existence or nonexistence
of any fact or facts which in any manner relate to the affairs of
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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 Xxxxxxxx, Xxxx & Xxxx. Xxxxxxxx, Xxxx & Xxxx,
Inc., ("SA&W") has consented to the use by the Trust and by each Fund and each
Series thereof of the identifying name "Xxxxxxxx, Ayer & Wood" and any of the
identifying words contained therein ("Xxxxxxxx") in the name of the Trust and of
each Fund and Series thereof. Such consent is conditioned upon the Trust's
employment of SA&W as Investment Adviser to the Trust and to each Fund thereof.
As between SA&W and the Trust, SA&W shall control the use of such name insofar
as the name of the Trusts or of any Fund contains the identifying word
"Xxxxxxxx." SA&W may from time to time use the identifying word "Xxxxxxxx" in
other connections and for other purposes, including without limitation in the
names of other investment companies, corporations or businesses that it may
manage, advise, sponsor or own or in which it may have a financial interest.
SA&W may require the Trust or any Fund thereof to cease using the identifying
word "Xxxxxxxx" in the name of the Trust or any Fund or any Series thereof if
the Trust or any Fund thereof ceases to employ SA&W or an affiliate thereof, as
Investment Adviser.
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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 Xxxxxxxx, Xxxx & Xxxx Investment Trust hereby granted and agreed to
the provisions hereof, all as of the day and year first above written.
/s/ X. Xxx X. Xxxxxx
--------------------
X. Xxx X. Xxxxxx
The undersigned Settlor of Xxxxxxxx, Ayer & Wood Investment Trust hereby
accepts, approves and authorizes the foregoing Agreement and Declaration of
Trust of Xxxxxxxx, Xxxx & Xxxx Investment Trust.
Dated: August 13, 1986
/s/ Xxxxx X. Xxxxx
------------------
Xxxxx X. Xxxxx
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ACKNOWLEDGMENTS
M A S S A C H U S E T T S
Suffolk, ss.: August 13, 1986
Then personally appeared the above-names X. Xxx X. Xxxxxx and acknowledged
the foregoing instrument to be his free act and deed.
Before me,
------------------------
Notary Public
M A S S A C H U S E T T S
Suffolk, ss.: August 13, 1986
Then personally appeared the above-names Xxxxx X. Xxxxx and acknowledged
the foregoing instrument to be his free act and deed.
Before me,
------------------------
Notary Public
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