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EXHIBIT (a)
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GARTMORE VARIABLE INSURANCE TRUST
(FORMERLY NATIONWIDE SEPARATE ACCOUNT TRUST UNTIL JANUARY 25, 2002)
(ESTABLISHED JUNE 30, 1981)
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AMENDED DECLARATION OF TRUST
(AS AMENDED AS OF SEPTEMBER 19, 2002)
TABLE OF CONTENTS
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ARTICLE I
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NAME AND DEFINTION 1
SECTION 1.1. NAME 1
SECTION 1.2. DEFINITIONS 2
ARTICLE II
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TRUSTEE 3
SECTION 2.1. NUMBER OF TRUSTEES 3
SECTION 2.2. ELECTION AND TERM 3
SECTION 2.3. RESIGNATION AND REMOVAL 3
SECTION 2.4. VACANCIES 4
SECTION 2.5. DELEGATION OF POWER TO OTHER TRUSTEES 4
ARTICLE III
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POWERS OF TRUSTEES 4
SECTION 3.1. GENERAL 4
SECTION 3.2. INVESTMENTS 5
SECTION 3.3. LEGAL TITLE 5
SECTION 3.4. ISSUANCE AND REPURCHASE OF SECURITIES 5
SECTION 3.5. BORROWING MONEY; LENDING TRUST ASSETS 5
SECTION 3.6. DELEGATION; COMMITTEES 5
SECTION 3.7. COLLECTION AND PAYMENT 6
SECTION 3.8. EXPENSES 6
SECTION 3.9. MANNER OF ACTION; BYLAWS 6
SECTION 3.10. MISCELLANEOUS POWERS 6
SECTION 3.11. PRINCIPAL TRANSACTIONS 6
SECTION 3.12. TRUSTEES AND OFFICERS AS SHAREHOLDERS 7
ARTICLE IV
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INVESTMENT ADVISER, DISTRIBUTOR AND TRANSFER AGENT 7
SECTION 4.1. INVESTMENT ADVISER 7
SECTION 4.2. DISTRIBUTOR 7
SECTION 4.3. TRANSFER AGENT 8
SECTION 4.4. PARTIES TO CONTRACT 8
ARTICLE V
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LIMITATIONS OF LIABILITY OF SHAREHOLDERS, TRUSTEES AND OTHERS 8
SECTION 5.1. NO PERSONAL LIABILITY OF SHAREHOLDERS, TRUSTEES, ETC 8
SECTION 5.2. NON-LIABILITY OF TRUSTEES, ETC 8
SECTION 5.3. MANDATORY INDEMNIFICATION 8
SECTION 5.4. NO BOND REQUIRED OF TRUSTEES . . . . . . . . . . . . . . . 10
SECTION 5.5. NO DUTY OF INVESTIGATION; NOTICE IN TRUST INSTRUMENTS, ETC 10
SECTION 5.6. RELIANCE ON EXPERTS, ETC . . . . . . . . . . . . . . . . . 10
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ARTICLE VI
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SHARES OF BENEFICIAL INTEREST 10
SECTION 6.1. BENEFICIAL INTEREST 10
Section 6.2 Establishment and Designation of Series 10
SECTION 6.3. RIGHTS OF SHAREHOLDERS 12
SECTION 6.4. TRUST ONLY 12
SECTION 6.5. ISSUANCE OF SHARES 13
SECTION 6.6. REGISTER OF SHARES 13
SECTION 6.7. TRANSFER OF SHARES 13
SECTION 6.8. NOTICES 13
SECTION 6.9. VOTING POWERS 14
SECTION 6.10. SERIES OR CLASS DESIGNATION 14
ARTICLE VII
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REDEMPTIONS 19
SECTION 7.1. REDEMPTIONS 19
SECTION 7.2. SUSPENSION OF RIGHT OF REDEMPTION 19
SECTION 7.3. REDEMPTION OF SHARES; DISCLOSURE OF HOLDING 20
SECTION 7.4. REDEMPTIONS OF ACCOUNTS OF LESS THAN $500 20
SECTION 7.5. REDEMPTIONS PURSUANT TO CONSTANT NET ASSET VALUE FORMULA 20
ARTICLE VIII
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DETERMINATION OF NET ASSET VALUE, NET INCOME AND DISTRIBUTIONS 20
SECTION 8.1. NET ASSET VALUE 20
SECTION 8.2. DISTRIBUTIONS TO SHAREHOLDERS 21
SECTION 8.3. DETERMINATION OF NET INCOME 21
SECTION 8.4. POWER TO MODIFY FOREGOING PROCEDURES 21
ARTICLE IX
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DURATION; TERMINATION OF TRUST; AMENDMENT; MERGERS; ETC 22
SECTION 9.1. DURATION 22
SECTION 9.2. TERMINATION OF TRUST 22
SECTION 9.3. AMENDMENT PROCEDURE 22
SECTION 9.4. MERGER, CONSOLIDATION AND SALE OF ASSETS 23
SECTION 9.5. INCORPORATION 23
ARTICLE X
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REPORTS TO SHAREHOLDERS 23
ARTICLE XI
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MISCELLANEOUS 24
SECTION 11.1. FILING 24
SECTION 11.2. GOVERNING LAW 24
SECTION 11.3. COUNTERPARTS 24
SECTION 11.4. RELIANCE BY THIRD PARTIES 24
SECTION 11.5. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS 24
SECTION 11.6. CLASS SHARES 24
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AMENDED DECLARATION OF TRUST
OF
GARTMORE VARIABLE INSURANCE TRUST
(Amended as of June 6, 2002)
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WHEREAS, a certain Declaration of Trust was formed June 30, 1981, with the
name MFS Separate Account Money Market Trust, which was subsequently amended to
NATIONWIDE
SEPARATE ACCOUNT MONEY MARKET TRUST, and then NATIONWIDE SEPARATE ACCOUNT
TRUST and then GARTMORE VARIABLE INSURANCE TRUST (effective January 25, 2002);
and
WHEREAS, the Trustees have amended the Trust and desire that the various
amendments be consolidated into this AMENDED DECLARATION OF TRUST.
NOW THEREFORE, the Trustees hereby declare this Amended Declaration of
Trust to be the effective Trust Declaration for the benefit of holders, from
time to time, of the shares of beneficial interest issued hereunder and subject
to the provisions hereof.
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ARTICLE I
NAME AND DEFINITIONS
Section 1.1. Name. The name of the trust created hereby is the "Gartmore
Variable Insurance Trust" (formerly "Nationwide Separate Account Trust"). The
names of the thirty-nine series of shares offered by the Trust for the
investment and reinvestment of funds are "Gartmore GVIT Money Market Fund"
(formerly "Money Market Fund," name change effective January 25, 2002);
"Gartmore GVIT Government Bond Fund" (formerly "Government Bond Fund," name
change effective January 25, 2002); "Gartmore GVIT Growth Fund" (formerly
"Capital Appreciation Fund," name change effective January 25, 2002), "Gartmore
GVIT Total Return Fund" (formerly "Total Return Fund," name change effective
January 25, 2002), "GVIT Small Company Fund" (formerly "Nationwide Small Company
Fund," name change effective January 25, 2002), "Strong GVIT Mid Cap Growth
Fund" (formerly "Nationwide Strategic Growth Fund," name change effective
October 1, 2000 and "Strong NSAT Mid Cap Growth Fund," name change effective
January 25, 2002), "Nationwide GVIT Strategic Value Fund" (formerly "Nationwide
Strategic Value Fund," name change effective January 25, 2002), "Xxxxxxxx GVIT
Value Fund" (formerly "Nationwide Equity Income Fund," name change effective
October 1, 2000 and "Federated NSAT Equity Income Fund," name change effective
January 25, 2002 and "Federated GVIT Equity Income Fund," name change effective
May 1, 2002), "Federated GVIT High Income Bond Fund" (formerly "Nationwide High
Income Bond Fund", name change effective October 1, 2000 and "Federated NSAT
High Income Bond Fund," name change effective January 25, 2002), "X.X. Xxxxxx
GVIT Balanced Fund" (formerly "Nationwide Balanced Fund," name change effective
October 1, 2000 and "X.X. Xxxxxx NSAT Balanced Fund," name change effective
January 25, 2002), "MAS GVIT Multi Sector Bond Fund" (formerly "Nationwide Multi
Sector Bond Fund," name change effective October 1, 2000 and "MAS NSAT Multi
Sector Bond Fund," name change effective January 25, 2002), "GVIT Small Cap
Value Fund (formerly "Nationwide Small Cap Value Fund," name change effective
January 25, 2002), "Gartmore GVIT Worldwide Leaders Fund" (formerly "Nationwide
Global Equity Fund," name change effective May 1, 2000 and "Nationwide Global 50
Fund, name change effective January 25, 2002), "Dreyfus GVIT Mid Cap Index Fund"
(formerly, "Nationwide Select Advisers Mid Cap Fund" and "Nationwide Mid Cap
Index Fund," name change effective October 1, 2000 and "Dreyfus NSAT Mid Cap
Index Fund, name change effective January 25, 2002), "GVIT Small Cap Growth
Fund" (formerly "Nationwide Select Advisers Small Cap Growth Fund," name change
effective May 1, 2000 and "Nationwide Small Cap Growth Fund, name change
effective January 25, 2002), "Xxxxxx GVIT Growth Focus Fund" (formerly
"Nationwide Growth Focus Fund II," name change effective October 1, 2000 and
"Xxxxxx NSAT Growth Focus Fund," name change effective January 25, 2002),
"Gartmore GVIT Global Technology and Communications Fund," (formerly "Nationwide
Global Technology and Communications Fund II," name change effective October 1,
2000 and "Gartmore NSAT Global Technology and Communications Fund," name change
effective January 25, 2002), "Gartmore GVIT Global Health Sciences Fund" (name
change from "Nationwide Global Life Sciences Fund II", effective May 1, 2001 and
"Gartmore NSAT Global Health Sciences Fund," name change effective January 25,
2002), "Gartmore GVIT Emerging Markets Fund" (formerly "Gartmore NSAT Emerging
Markets Fund," name change effective January 25, 2002), "Gartmore GVIT European
Leaders Fund Fund," (formerly "Gartmore NSAT European Growth Fund", name change
effective June 29, 2001) "Gartmore GVIT Global Leaders Fund" (formerly "Gartmore
NSAT Global Leaders Fund," name change effective January 25, 2002), "Gartmore
GVIT Global Small Companies Fund" (formerly "Gartmore NSAT Global Small
Companies Fund," name change effective January 25, 2002), "Gartmore GVIT
International Growth Fund" (formerly "Gartmore NSAT International Growth Fund,"
name change effective January 25, 2002), "Gartmore GVIT OTC Fund" (formerly
"Gartmore NSAT OTC Fund," name change effective January 25, 2002), Gartmore GVIT
Asia Pacific Leaders Fund,""Gartmore GVIT U.S. Growth Leaders Fund" (formerly
"Gartmore GVIT U.S. Leaders Fund," name change effective January 25, 2002),
"Gartmore GVIT Global Financial Services Fund," "Gartmore GVIT Global Utilities
Fund," "Gartmore GVIT Investor Destinations Aggressive Fund" (temporarily
renamed NSAT Investor Destinations Aggressive Fund until January 25, 2002),
"Gartmore GVIT Investor Destinations Moderately Aggressive Fund" (temporarily
renamed NSAT Investor Destinations Moderately Aggressive Fund until January 25,
2002), "Gartmore GVIT Investor Destinations Moderate Fund" (temporarily renamed
NSAT Investor Destinations Moderate Fund until January 25, 2002), "Gartmore GVIT
Investor Destinations Moderately Conservative Fund" (temporarily renamed NSAT
Investor Destinations Moderately Conservative Fund until January 25, 2002),
"Gartmore GVIT Investor Destinations Conservative Fund" (temporarily renamed
NSAT Investor Destinations Conservative Fund until January 25, 2002), "Gartmore
GVIT Money Market Fund II" (formerly "Money Market Fund II," name change
effective January 25, 2002), "Gartmore GVIT Nationwide Leaders Fund" (formerly
"Gartmore GVIT U.S. Leaders Fund," name change to be effective May 1, 2002),
"Gartmore GVIT Micro Cap Equity Fund," "Gartmore GVIT Mid Cap Growth Fund,"
"Dreyfus GVIT International Value Fund" and "GVIT Equity 500 Index Fund.".
Section 1.2. Definitions.Wherever they are used herein, the following terms
have the following respective meanings:
(a) "Bylaws" means the Bylaws referred to in Section 3.9 hereof, as from time
to time amended.
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(b) The terms "Commission", "InterestedPerson", and "Majority Shareholder Vote"
(the 67% or 50% requirement of the third sentence of Section 2(a)(42) of
the 1940 Act, whichever may be applicable) have the meanings given them in
the 1940 Act, except to the extent that the Trustees have otherwise defined
"Majority Shareholder Vote" in conjunction with the establishment of any
series of shares.
(c) "Declaration" or "Amended Declaration" means this Amended Declaration of
Trust as amended from time to time. Reference in this Amended Declaration
of Trust to "Declaration" "hereof", "herein" and "hereunder" shall be
deemed to refer to this Amended Declaration rather than the article or
section in which such words appear.
(d) "Distributor" means the party, other than the Trust, to the contract
described in Section 4.2 hereof.
(e) "Investment Adviser" means the party, other than the Trust, to the contract
described in Section 4.1 hereof.
(f) The "1940 Act" means the Investment Company Act of 1940 and the rules and
regulations thereunder, as amended from time to time.
(g) "Person" means and includes individuals, corporations, partnerships,
trusts, associations, joint ventures and other entities, whether or not
legal entities, and governments and agencies and political subdivisions
thereof.
(h) "Shareholder" means a record owner of outstanding Shares.
(i) "Shares" means the units of interest into which the beneficial interest in
the Trust shall be divided from time to time, including the shares of any
and all series which may be established by the Trustees, and includes
fractions of Shares as well as whole Shares.
(j) "Transfer Agent" means the party, other than the Trust, to the contract
described in Section 4.3 hereof.
(k) The "Trust" means the Gartmore Variable Insurance Trust.
(l) The "Trust Property" means any and all property, real or personal, tangible
or intangible, which is owned or held by or for the account of the Trust or
the Trustees.
(m) The "Trustees" means the persons who have signed this Amended Declaration,
so long as they shall continue in office in accordance with the terms
hereof, and all other persons who may from time to time be duly elected,
qualified and serving as Trustees in accordance with the provisions hereof,
and reference herein to a Trustee or the Trustees shall refer to such
person or persons in their capacity as trustees hereunder.
(n) "Class" refers to one or more classes or sub-series of Shares established
and designated under or in accordance with the provisions of Section 11.6.
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ARTICLE II
TRUSTEES
Section 2.1. Number of Trustees.The number of Trustees shall be such number
as shall be fixed from time to time by a written instrument signed by a majority
of the Trustees, provided, however, that the number of Trustees shall in no
event be less than three (3) nor more than fifteen (15).
Section 2.2. Election and Term. Except for the Trustees named herein or
appointed to fill vacancies pursuant to Section 2.4 hereof, the Trustees shall
be elected by the Shareholders at an annual meeting or at a special meeting of
Shareholders. There is no requirement that the Trustees have an annual meeting
of the Shareholders. In the event the Trustees determine to have an annual or
special meeting of the Shareholders, it shall be held at such time and place and
in such manner as the Bylaws shall provide notwithstanding anything in this
section to the contrary. Except in the event of resignations or removals
pursuant to Section 2.3 hereof, each Trustee shall hold office until the next
meeting of Shareholders and until his successor is elected and qualified to
serve at Trustee.
Section 2.3. Resignation and Removal. Any Trustee may resign his trust
(without need for prior or subsequent accounting) by an instrument in writing
signed by him and delivered to the other Trustees and such resignation shall be
effective upon such delivery, or at a later date according to the terms of the
instrument. Any of the Trustees may be removed (provided the aggregate number of
Trustees after such removal shall not be less than the number required by
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Section 2.1 hereof) with cause, by the Action of two-thirds of the
remaining Trustees. Upon the resignation or removal of a Trustee, or his
otherwise ceasing to be a Trustee, he shall execute and deliver such documents
as the remaining Trustees shall require for the purpose of conveying to the
Trust or the remaining Trustees any Trust Property held in the name of the
resigning or removed Trustee. Upon the incapacity or death of any Trustee, his
legal representative shall execute and deliver on his behalf such documents as
the remaining Trustees shall require as provided in the preceding sentence.
Section 2.4. Vacancies.The term of office of a Trustee shall terminate and
a vacancy shall occur in the event of the death, resignation, removal,
bankruptcy, adjudicated incompetence or other incapacity to perform the duties
of the office of a Trustee. No such vacancy shall operate to annul this Amended
Declaration or to revoke any existing agency created pursuant to the terms of
the Amended Declaration. In the case of an existing vacancy, including a vacancy
existing by reason of an increase in the number of Trustees, subject to the
provisions of Section 16(a) of the 1940 Act, the remaining Trustees shall fill
such vacancy by the appointment of such other person as they in their discretion
shall see fit, made by a written instrument signed by a majority of the
Trustees. Any such appointment shall not become effective, however, until the
person named in the written instrument of appointment shall have accepted in
writing such appointment and agreed in writing to be bound by the terms of the
Amended Declaration. An appointment of a Trustee may be made in anticipation of
a vacancy to occur at a later date by reason of retirement, resignation or
increase in the number of Trustees, provided that such appointment shall not
become effective prior to such retirement, resignation or increase in the number
of Trustees. Whenever a vacancy in the number of Trustees shall occur, until
such vacancy is filled as provided in this Section 2.4, the Trustees in office,
regardless of their number, shall have all the powers granted to the Trustees
and shall discharge all the duties imposed upon the Trustees by the Amended
Declaration. A written instrument certifying the existence of such vacancy
signed by a majority of the Trustees shall be conclusive evidence of the
existence of such vacancy.
Section 2.5. Delegation of Power to Other Trustees. Any Trustee may, by
power of attorney, delegate his power for a period not exceeding six (6) months
at any one time to any other Trustee or Trustees; provided that in no case shall
less than two (2) Trustees personally exercise the powers granted to the
Trustees under the Amended Declaration except as herein motherwise expressly
provided.
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ARTICLE III
POWERS OF TRUSTEES
Section 3.1. General.The Trustees shall have exclusive and absolute control
over the Trust Property and over the business of the Trust to the same extent as
if the Trustees were the sole owners of the Trust Property and business in their
own right, but with such powers of delegation as may be permitted by the Amended
Declaration. The Trustees shall have power to conduct the business of the Trust
and carry on its operations in any and all of its branches and maintain offices
both within and without the Commonwealth of Massachusetts, in any and all states
of the United States of America, in the District of Columbia, and in any and all
commonwealths, territories, dependencies, colonies, possessions, agencies or
instrumentalities of the United States of America and of foreign governments,
and to do all such other things and execute all such instruments as they deem
necessary, proper or desirable in order to promote the interests of the Trust
although such things are not herein specifically mentioned. Any determination as
to what is in the interest of the Trust made by the Trustees in good faith shall
be conclusive. In construing the provisions of the Amended Declaration, the
presumption shall be in favor of a grant of power to the Trustees.
The enumeration of any specific power herein shall not be construed as
limiting the aforesaid power. Such powers of the Trustees may be exercised
without order of or resort to any Court.
Section 3.2. Investments.The Trustees shall have the power to:
(a) conduct, operate and carry on the business of an investment company;
pledge, sell, assign, transfer, exchange, distribute, lend or otherwise
deal in or dispose of negotiable or non-negotiable instruments,
obligations, evidences of indebtedness, certificates of deposit or
indebtedness, commercial paper, repurchase agreements, and other securities
of any kind, including, without limitation, those issued, guaranteed or
sponsored by any and all Persons including, without limitation, states,
territories and possessions of the United States, the District of Columbia
and any of the political subdivisions, agencies or instrumentalities
thereof, and by the United States Government or its agencies or
instrumentalities, or international instrumentalities, or by any bank or
savings institution, or by any corporation or organization organized under
the laws of the United States or of any state, territory or possession
thereof, and of corporations or organizations organized under foreign laws,
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or in "when issued" contracts for any such securities, or retain Trust
assets in cash and from time to time change the investments of the assets
of the Trust; and to exercise any and all rights, powers and privileges of
ownership or interest in respect of any and all such investments of every
kind and description, including, without limitation, the right to consent
and otherwise act with respect thereto, with power to designate one or more
persons, firms, associations or corporations to exercise any of said
rights, powers and privileges in respect of any of said instruments. The
Trustees shall not be limited to investing in obligations maturing before
the possible termination of the Trust, nor shall the Trustees be limited by
any law limiting the investments which may be made by fiduciaries.
Section 3.3. Legal Title. Legal title to all the Trust Property shall be
vested in the Trustees as joint tenants except that the Trustees shall have
power to cause legal title to any Trust Property to be held by or in the name of
one or more of the Trustees, or in the name of the Trust, or in the name of any
other Person as nominee, on such terms as the Trustees may determine, provided
that the interest of the Trust 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
resignation, removal or death of a Trustee, he 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.
Section 3.4. Issuance and Repurchase of Securities. The Trustees shall have
the power to issue, sell, repurchase, redeem, retire, cancel, acquire, hold,
resell, reissue, dispose of, transfer, and otherwise deal in Shares and, subject
to the provisions set forth in Articles VII, VIII, and IX and Section 6.9
hereof, to apply to any such repurchase, redemption, retirement, cancellation or
acquisition of Shares any funds or property of the Trust whether capital or
surplus or otherwise, to the full extent now or hereafter permitted by the laws
of the Commonwealth of Massachusetts governing business corporations.
Section 3.5. Borrowing Money; Lending Trust Assets. The Trustees shall have
power to borrow money or otherwise obtain credit to secure the same by
mortgaging, pledging or otherwise subjecting as security the assets of the
Trust, to endorse, guarantee, or undertake the performance of any obligation,
contract or engagement of any other Person and to lend Trust assets.
Section 3.6. Delegation; Committees. The Trustees shall have power to
delegate from time to time to such of their number or to officers, employees or
agents of the Trust the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the Trustees or
otherwise as the Trustees may deem expedient.
Section 3.7. Collection and Payment. The Trustees shall have power to
collect all property due to the Trust; to pay all claims, including taxes,
against the Trust Property; to prosecute, defend, compromise or abandon any
claims relating to the Trust Property; to foreclose any security interest
securing any obligations, by virtue of which any property is owed to the Trust;
and to enter into releases, agreements and other instruments.
Section 3.8. Expenses. The Trustees shall have the power to incur and pay
any expenses which in the opinion of the Trustees are necessary or incidental to
carry out any of the purposes of the Declaration, and to pay reasonable
compensation from the funds of the Trust to themselves as Trustees. The Trustees
shall fix the compensation of all officers, employees and Trustees.
Section 3.9. Manner of Action; Bylaws. Except as otherwise provided herein
or in the Bylaws, any action to be taken by the Trustees may be taken by a
majority of the Trustees present at a meeting of Trustees (a quorum being
present), including any meeting held by means of a conference telephone circuit
or similar communications equipment by means of which all persons participating
in the meeting can hear each other, or by written consents of all the Trustees.
The Trustees may adopt Bylaws not inconsistent with this Declaration to provide
for the conduct of the business of the Trust and may amend or repeal such Bylaws
to the extent such power is not reserved to the Shareholders.
Section 3.10. Miscellaneous Powers.The Trustees shall have the power to:
(a) employ or contract with such Persons as the Trustees may deem desirable for
the transaction of the business of the Trust; (b) enter into joint ventures,
partnerships and any other combinations or associations; (c) remove Trustees or
fill vacancies in or add to their number, elect and remove such officers and
appoint and terminate such agents or employees as they consider appropriate, and
appoint from their own number, and terminate, any one or more committees which
may exercise some or all of the power and authority of the Trustees as the
Trustees may determine; (d) purchase, and pay for out of Trust Property,
insurance policies insuring the Shareholders, Trustees, officers, employees,
agents, investment advisers, distributors, selected dealers or independent
contractors of the Trust against all claims arising by reason of holding any
such position or by reason of any action taken or omitted by any such Person in
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such capacity, whether or not constituting negligence, or whether or not the
Trust would have the power to indemnify such Person against such liability; (e)
establish pension, profit-sharing, Share purchase, and other retirement,
incentive and benefit plans for any Trustees, officers, employees and agents of
the Trust; (f) to the extent permitted by law, indemnify any person with whom
the Trust has dealings, including the Investment Adviser, Distributor, Transfer
Agent and selected dealers, to such extent as the Trustees shall determine; (g)
guarantee indebtedness or contractual obligations of others; (h) determine and
change the fiscal year of the Trust and the method by which its accounts shall
be kept; and (i) adopt a seal for the Trust, but the absence of such seal shall
not impair the validity of any instrument executed on behalf of the Trust.
Section 3.11. Principal Transactions. Except in transactions permitted by
the 1940 Act or any rule or regulation thereunder, or any order of exemption
issued by the Commission, the Trustees shall not, on behalf of the Trust, buy
any securities (other than Shares) from or sell any securities (other than
Shares) to, or lend any assets of the Trust to, any Trustee or officer of the
Trust or any firm of which any such Trustee or officer is a member acting as
principal, or have any such dealings with the Investment Adviser, Distributor or
Transfer Agent or with any Interested Person of such Person; but the Trust may
employ any such Person, or firm or company in which such Person is an Interested
Person, as broker, legal counsel, registrar, transfer agent, dividend disbursing
agent or custodian upon customary terms.
Section 3.12. Trustees and Officers as Shareholders.Except as hereinafter
provided, no officer, Trustee or Member of the Advisory Board of the Trust, and
no member, officer, director or trustee of the Investment Adviser or of the
distributor, and no Investment Adviser or Distributor of the Trust, shall take
long or short positions in the securities issued by the Trust.
(1) The foregoing provision shall not prevent the Distributor from purchasing
from the Trust Shares if such purchases are limited (except for reasonable
allowances for clerical errors, delays and errors of transmission and
cancellation of orders) to purchases for the purpose of filling orders for
Shares received by the Distributor and provided that orders to purchase
from the Trust are entered with the Trust or the Custodian promptly upon
receipt by the Distributor of purchase orders for Shares, unless the
Distributor is otherwise instructed by its customer.
(2) The foregoing provision shall not prevent the Distributor from purchasing
Shares as agent for the account of the Trust.
(3) The foregoing provision shall not prevent the purchase from the Trust or
from the Distributor of Shares by any officer, Trustee or member of the
Advisory Board of the Trust or by any member, officer, director or trustee
of the Investment Adviser or of the Distributor at a price not lower than
the net asset value of the Shares at the moment of such purchase, provided
that any such sales are only to be made pursuant to a uniform offer
described in the Trust's current prospectus.
(4) The foregoing provision shall not prevent the Investment Adviser, the
Distributor, or any of their officers, directors or trustees from
purchasing Shares prior to the effective date of the Registration Statement
relating to the Shares under the Securities Act of 1933, as amended.
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ARTICLE IV
INVESTMENT ADVISER, DISTRIBUTOR AND TRANSFER AGENT
Section 4.1. Investment Adviser. Subject to a Majority Shareholder Vote,
the Trustees may, in their discretion, from time to time enter into an
investment advisory or management contract whereby the other party to such
contract shall undertake to furnish the Trust such management, investment
advisory, statistical and research facilities and services, promotional
activities, and such other facilities and services, if any, as the Trustees
shall from time to time consider desirable and all upon such terms and
conditions as the Trustees may, in their discretion, determine. Notwithstanding
any provisions of the Declaration, the Trustees may authorize the Investment
Adviser (subject to such general or specific instructions as the Trustees may
from time to time adopt) to effect purchases, sales, loans or exchanges of
portfolio securities of the Trust on behalf of the Trustees or may authorize any
officer, employee or Trustee to effect such purchases, sales, loans or exchanges
pursuant to recommendations of the Investment Adviser (and all without further
action by the Trustees). Any such purchases, sales, loans and exchanges shall be
deemed to have been authorized by all of the Trustees.
Section 4.2. Distributor.The Trustees may, in their discretion, from time
to time enter into a contract, providing for the sale of Shares to net the Trust
not less than the net asset value per Share (as described in Article VIII
hereof), whereby the Trust may either agree to sell the Shares to the other
party to the contract or appoint such other party its sales agent for such
Shares. In either case, the contract shall be on such terms and conditions as
the Trustees may in their discretion determine not inconsistent with the
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provisions of this Article IV or the Bylaws; and such contract may also provide
for the repurchase or sale of Shares of the Trust by such other party as
principal or as agent of the Trust and may provide that such other party may
enter into selected dealer agreements with registered securities dealers to
further the purpose of the distribution or repurchase of the Shares.
Section 4.3. Transfer Agent. The Trustees may, in their discretion, from
time to time enter into a transfer agency and shareholder service contract
whereby the other party to such contract shall undertake to furnish transfer
agency and shareholder services to the Trust. The contract shall have such terms
and conditions as the Trustees may, in their discretion, determine not
inconsistent with the Amended Declaration or the Bylaws. Such services may be
provided by one or more Persons.
Section 4.4. Parties to Contract.Any contract of the character described in
Sections 4.1, 4.2 or 4.3 of this Article IV or any Custodian contract, as
described in the Bylaws, may be entered into with any Person, although one or
more of the Trustees or officers of the Trust may be an officer, director,
trustee, shareholder, or member of such other party to the contract, and no such
contract shall be invalidated or rendered voidable by reason of the existence of
any such relationship; nor shall any Person holding such relationship be liable
merely by reason of such relationship for any loss or expense to the Trust under
or by reason of said contract or accountable for any profit realized directly or
indirectly therefrom, provided that the contract, when entered into, was not
inconsistent with the provisions of this Article IV or the Bylaws. The same
Person may be the other party to contracts entered into pursuant to Sections
4.1, 4.2 and 4.3 above or Custodian contracts, and any individual may be
financially interested or otherwise affiliated with Persons who are parties to
any or all of the contracts mentioned in this Section 4.4.
--------------------------------------------------------------------------------
ARTICLE V
LIMITATIONS OF LIABILITY OF SHAREHOLDERS, TRUSTEES AND OTHERS
Section 5.1. No Personal Liability of Shareholders, Trustees, etc. No
Shareholder shall be subject to any personal liability whatsoever to any Persons
in connection with Trust Property or the acts, obligations or affairs of the
Trust. No Trustee, officer, employee or agent of the Trust shall be subject to
any personal liability whatsoever to any Person, other than the Trust or its
Shareholders, in connection with Trust Property or the affairs of the Trust,
save only that arising from bad faith, willful misfeasance, gross negligence or
reckless disregard for his duty to such Person; and all such Persons shall look
solely to the Trust Property for satisfaction of claims of any nature arising in
connection with the affairs of the Trust. If any Shareholder, Trustee, officer,
employee or agent, as such, of the Trust is made a party to any suit or
proceeding to enforce any such liability, he shall not, on account thereof, be
held to any personal liability. The Trust shall indemnify and hold each
Shareholder harmless from and against all claims and liabilities, to which such
Shareholder may become subject by reason of his being or having been a
Shareholder, and shall reimburse such Shareholder for all legal and other
expenses reasonably incurred by him in connection with any such claim or
liability. The rights accruing to a Shareholder under this Section 5.1 shall not
exclude any other right to which such Shareholder may be lawfully entitled, nor
shall anything herein contained restrict the right of the Trust to indemnify or
reimburse a Shareholder in any appropriate situation even though not
specifically provided herein.
Section 5.2. Non-liability of Trustees, etc. No Trustee, officer, employee
or agent of the Trust shall be liable to the Trust, its Shareholders, or to any
Shareholder, Trustee, officer, employee or agent thereof for any action or
failure to act (including without limitation the failure to compel in any way
any former or acting Trustee to redress any breach of trust) except for his own
bad faith, willful misfeasance, gross negligence or reckless disregard of his
duties.
Section 5.3. Mandatory Indemnification. (a) Subject to the exceptions and
limitations contained in paragraph (b) below:
(i) Every person who is, or has been a Trustee or officer of the Trust shall be
indemnified by the Trust against all liability and against all expenses
reasonably incurred or paid by him in connection with any claim, action,
suit or proceeding in which he becomes involved as a party or otherwise by
virtue of his being or having been a Trustee or officer and against amounts
paid or incurred by him in the settlement thereof.
(ii) The words "claim," "action," "suit," or "proceeding" shall apply to all
claims, actions, suits or proceedings (civil, criminal, or other, including
appeals), actual or threatened; and the words "liability" and "expenses"
shall include, without limitation, attorneys' fees, costs, judgments,
amounts paid in settlement, fines, penalties and other liabilities.
(b) No indemnification shall be provided hereunder to a trustee or
officer;
-- 28 --
(i) against any liability to the Trust or the Shareholders by reason
of a final adjudication by the court or other body before which
the proceeding was brought that he engaged in willful
misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of his office;
(ii) with respect to any matter as to which he shall have been finally
adjudicated not to have acted in good faith in the reasonable
belief that his action was in the best interest of the Trust;
(iii) in the event of a settlement or other disposition not involving
a final adjudication as provided in paragraphs (b)(i) or (b)(ii)
resulting in a payment by a Trustee or officer, unless there has
been either a determination that such Trustee or officer did not
engage in willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his
office by the court or other body approving the settlement or
other disposition or a reasonable determination, based upon a
review of readily available facts (as opposed to a full
trial-type inquiry) that he did not engage in such conduct:
(A) by vote of a majority of the Disinterested Trustees acting
on the matter (provided that a majority of the Disinterested
Trustees then in office act on the matter) or
(B) by written opinion of independent legal counsel.
(c) The rights of indemnification herein provided may be insured against
by policies maintained by the Trust, shall be severable, shall not
affect any other rights to which any Trustee or officer may now or
hereafter be entitled, shall continue as to a Person who has ceased to
be such Trustee or officer and shall inure to the benefit of the
heirs, executors and administrators of such Person. Nothing contained
herein shall affect any rights to indemnification to which personnel
other than Trustees and officers may be entitled by contract or
otherwise under law.
(d) Expenses of preparation and presentation of a defense to any claim,
action, suit or proceeding of the character described in paragraph (a)
of this Section 5.3 shall be advanced by the Trust prior to final
disposition thereof upon receipt of an undertaking by or on behalf of
the recipient to repay such amount if it is ultimately determined that
he is not entitled to indemnification under this Section 5.3, provided
that either:
(i) such undertaking is secured by a surety bond or some other
appropriate security or the Trust shall be insured against losses
arising out of any such advances; or
(ii) a majority of the Disinterested Trustees acting on the matter
(provided that a majority of the Disinterested Trustees then in
office act on the matter) or an independent legal counsel in a
written opinion, shall determine, based upon a review of readily
available facts (as opposed to a full trial-type inquiry), that
there is reason to believe that the recipient ultimately will be
found entitled to indemnification.
As used in this Section 5.3, a "Disinterested Trustee" is one (i) who is
not an "Interested Person" of the Trust (including anyone who has been exempted
from being an "Interested Person" by any rule, regulation or order of the
Commission), and (ii) against whom none of such actions, suits or other
proceedings or another action, suit or other proceeding on the same or similar
grounds is then or had been pending.
Section 5.4. No Bond Required of Trustees. No Trustee shall be obligated to
give any bond or other security for the performance of any of his duties
hereunder.
Section 5.5. No Duty of Investigation; Notice in Trust Instruments, etc. No
purchaser, lender, Transfer Agent or other Person dealing with the Trustees or
any officer, employee or agent 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 said officer, employee or agent or be liable for the application of money
or property paid, loaned, or delivered to or on the order of the Trustees or of
said officer, employee or agent. Every obligation, contract, instrument,
certificate, Share, other security of the Trust or undertaking, and every other
act or thing whatsoever executed in connection with the Trust shall be
conclusively presumed to have been executed or done by the executors thereof
only in their capacity as Trustees under the Declaration or in their capacity as
officers, employees or agents of the Trust. Every written obligation, contract,
instrument, certificate, Share, other security of the Trust or undertaking made
or issued by the Trustees shall recite that the same is executed or made by them
not individually, but as Trustees under the Declaration, and that the
-- 29 --
obligations of any such instrument are not binding upon any of the Trustees or
Shareholders, individually, but bind only the trust estate, and may contain any
further recital which they or he may deem appropriate, but the omission of such
recital shall not operate to bind the Trustees individually. The Trustees shall
at all times maintain insurance for the protection of the Trust Property, its
Shareholders, Trustees, officers, employees and agents in such amount as the
Trustees shall deem adequate to cover possible tort liability, and such other
insurance as the Trustees in their sole judgment shall deem advisable.
Section 5.6. Reliance on Experts, etc. Each Trustee and officer or employee
of the Trust shall, in the performance of his duties, be fully and completely
justified and protected with regard to any act or any failure to act resulting
from reliance in good faith upon the books of account or other records of the
Trust, upon an opinion of counsel, or upon reports made to the Trust by any of
its officers or employees or by the Investment Adviser, the Distributor,
Transfer Agent, selected dealers, accountants, appraisers or other experts or
consultants selected with reasonable care by the Trustees, officers or employees
of the Trust, regardless of whether such counsel or expert may also be a
Trustee.
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ARTICLE VI
SHARES OF BENEFICIAL INTEREST
Section 6.1. Beneficial Interest. The interest of the Shareholders
hereunder shall be divided into transferable shares of beneficial interest,
without par value. The number of shares of beneficial interest authorized
hereunder, and the number of Shares of each series or Class thereof that may be
issued hereunder, is unlimited. All Shares issued hereunder including, without
limitation, Shares issued in connection with a dividend in Shares or a split of
Shares, shall be fully paid and non-assessable.
Section 6.2. Establishment and Designation of Series. Without limiting
the authority of the Trustees to establish and designate any further series or
Class, to classify or reclassify all or any part of the issued Shares of any
series to make them part of an existing or newly created Class or to amend
rights and preferences of any new or existing series or Class, including the
following series, all without Shareholder approval, there are hereby established
and designated, subject to the provisions and rights of this Amended Declaration
of Trust, the following series of Shares:
Gartmore GVIT Total Return Fund (formerly Total Return Fund)
Gartmore GVIT Growth Fund (formerly Capital Appreciation Fund)
Gartmore GVIT Government Bond Fund (formerly Government Bond Fund)
Gartmore GVIT Money Market Fund (formerly Money Market Fund)
GVIT Small Company Fund (formerly Nationwide Small Company Fund)
Strong GVIT Mid Cap Growth Fund (formerly Nationwide Strategic Growth
Fund and Strong NSAT Mid Cap Growth Fund)
Nationwide GVIT Strategic Value Fund (formerly Nationwide Strategic
Value Fund)
Xxxxxxxx GVIT Value Fund (formerly Nationwide Equity Income Fund and
Federated NSAT Equity Income Fund and Federated GVIT Equity
Income Fund)
Federated High Income Bond Fund (formerly Nationwide High Income Bond
Fund and Federated NSAT High Income Bond Fund)
X.X. Xxxxxx GVIT Balanced Fund (formerly Nationwide Balanced Fund and
X.X. Xxxxxx NSAT Balanced Fund)
MAS GVIT Multi Sector Bond Fund (formerly Nationwide Multi Sector
Bond Fund and MAS NSAT Multi Sector Bond Fund)
GVIT Small Cap Value Fund (formerly Nationwide Small Cap Value Fund)
GVIT Small Cap Growth Fund (formerly Nationwide Select Advisers Small
Cap Growth Fund and Nationwide Small Cap Growth Fund)
Gartmore GVIT Worldwide Leaders Fund (formerly Nationwide Global
Equity Fund and Nationwide Global 50 Fund)
Dreyfus GVIT Mid Cap Index Fund (formerly Nationwide Select Advisers
Mid Cap Fund, Nationwide Mid Cap Index Fund and Dreyfus NSAT Mid
Cap Index Fund)
Xxxxxx GVIT Growth Focus Fund (formerly Nationwide Growth Focus Fund
II and Xxxxxx NSAT Growth Focus Fund)
Gartmore GVIT Global Technology and Communications Fund (formerly
Nationwide Global Technology and Communications Fund II and
Gartmore NSAT Global Technology and Communications Fund)
Gartmore GVIT Global Health Sciences Fund (formerly Nationwide Global
Health Sciences Fund II, and Gartmore NSAT Global Health Sciences
Fund)
Gartmore GVIT Emerging Markets Fund (formerly Gartmore NSAT Emerging
Markets Fund)
Gartmore GVIT International Growth Fund (formerly Gartmore NSAT
International Growth Fund)
Gartmore GVIT Global Leaders Fund (formerly Gartmore NSAT Global
Leaders Fund)
Gartmore GVIT European Leaders Fund (formerly Gartmore NSAT European
Growth Fund)
-- 30 --
Gartmore GVIT Global Small Companies Fund (formerly Gartmore NSAT
Global Small Companies Fund)
Gartmore GVIT OTC Fund (formerly Gartmore NSAT OTC Fund)
Gartmore GVIT Asia Pacific Leaders Fund
Gartmore GVIT U.S. Growth Leaders Fund (formerly Gartmore GVIT U.S.
Leaders Fund)
Gartmore GVIT Global Financial Services Fund
Gartmore GVIT Global Utilities Fund
Gartmore GVIT Investor Destinations Aggressive Fund (to be temporarily
renamed NSAT Investor Destinations Aggressive Fund until January
25, 2002)
Gartmore GVIT Investor Destinations Moderately Aggressive Fund
(temporarily renamed NSAT Investor Destinations Moderately
Aggressive Fund until January 25, 2002)
Gartmore GVIT Investor Destinations Moderate Fund (temporarily renamed
NSAT Investor Destinations Moderate Fund until January 25, 2002)
Gartmore GVIT Investor Destinations Moderately Conservative Fund
(temporarily renamed NSAT Investor Destinations Moderately
Conservative Fund until January 25, 2002)
Gartmore GVIT Investor Destinations Conservative Fund (temporarily
renamed NSAT Investor Destinations Conservative Fund until
January 25, 2002)
Gartmore GVIT Money Market Fund II (formerly Money Market Fund II)
Gartmore GVIT Nationwide Leaders Fund (formerly Gartmore GVIT U.S.
Leaders Fund)
Gartmore GVIT Micro Cap Equity Fund
Gartmore GVIT Mid Cap Growth Fund
Dreyfus GVIT International Value Fund
GVIT Equity 500 Index Fund
(collectively, the Funds). Prior to March 1, 2001, each of the Funds
previously issued one class of shares that was not previously
designated (the "existing class"). On March 1, 2001, the Board of
Trustees for the Trust authorized the creation of an additional class
of shares, which would be designated as Class II shares and designated
the existing class of shares as the Class I shares; however, each of
the GVIT Investor Destinations Funds and the Gartmore GVIT Money
Market Fund II issues shares without class designation. Each of the
other Funds issues shares with the class designations indicated in
Section 6.10.
Section 6.3. Rights of Shareholders. The ownership of the Trust Property of
every description and the right to conduct any business hereinbefore described
are vested exclusively in the Trustees, and the Shareholders shall have no
interest therein other than the beneficial interest conferred by their Shares,
and they shall have no right to call for any partition or division of any
property, profits, rights or interests of the Trust nor can they be called upon
to assume any losses of the Trust or suffer an assessment of any kind by virtue
of their ownership of Shares. The Shares shall be personal property giving only
the rights in the Amended Declaration specifically set forth. The Shares shall
not entitle the holder to preference, preemptive, appraisal, conversion or
exchange rights, except as the Trustees may determine with respect to any series
of Shares.
Section 6.4. Trust Only. It is the intention of the Trustees to create only
the relationship of Trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention of the Trustees to create
a general partnership, limited partnership, joint stock association,
corporation, bailment or any form of legal relationship other than a Trust.
Nothing in the Declaration shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
Section 6.5. Issuance of Shares.The Trustees, in their discretion, may from
time to time without vote of the shareholders, issue Shares, in addition to the
then issued and outstanding Shares and Shares held in the treasury, to such
party or parties and for such amount and type of consideration, including cash
or property, at such time or times (including, without limitation, each business
day in accordance with the determination of net asset value per Share as set
forth in Section 8.3 hereof), and on such terms as the Trustees may deem best,
and may in such manner acquire other assets (including the acquisition of assets
subject to, and in connection with the assumption of liabilities) and
businesses. In connection with any issuance of Shares, the Trustees may issue
fractional Shares. The Trustees may from time to time divide or combine the
Shares into a greater or lesser number without thereby changing the
proportionate beneficial interests in the Trust. Reductions in the number of
outstanding Money Market Fund Shares may be made if necessary to maintain the
constant net asset value per Share of the Money Market Fund.
Contributions to the Trust may be accepted for, and Shares shall be
redeemed as, whole Shares and/or 1/1,000ths of a Share or integral multiples
thereof.
-- 31 --
Section 6.6. Register of Shares. A register shall be kept at the principal
office of the Trust or at an office of the Transfer Agent which shall contain
the names and addresses of the Shareholders and the number of Shares held by
them respectively and a record of all transfers thereof. Such register shall be
conclusive as to who are the holders of the Shares and who shall be entitled to
receive dividends or distributions or otherwise to exercise or enjoy the rights
of Shareholders. No Shareholder shall be entitled to receive payment of any
dividend or distribution, nor to have notice given to him as herein or in the
Bylaws provided, until he has given his address to the Transfer Agent or such
other officer or agent of the Trustees as shall keep the said register for entry
thereon. It is not contemplated that certificates will be issued for the Shares;
however, the Trustees, in their discretion, may authorize the issuance of Share
certificates and promulgate appropriate rules and regulations as to their use.
Section 6.7. Transfer of Shares.Shares shall be transferable on the records
of the Trust only by the record holder thereof or by his agent thereunto duly
authorized in writing, upon delivery to the Trustees or the Transfer Agent of a
duly executed instrument of transfer, together with such evidence of the
genuineness of each such execution and authorization and of other matters as may
reasonably be required. Upon such delivery, the transfer shall be recorded on
the register of the Trust. Until such record is made, the Shareholder of record
shall be deemed to be the holder of such Shares for all purposes hereunder and
neither the Trustees nor any Transfer Agent or registrar nor any officer,
employee or agent of the Trust shall be affected by any notice of the proposed
transfer.
Any person becoming entitled to any Shares in consequence of the death,
bankruptcy, or incompetence of any Shareholder, or otherwise by operation of
law, shall be recorded on the register of Shares as the holder of such Shares
upon production of the proper evidence thereof to the Trustees or the Transfer
Agent, but until such record is made, the Shareholder of record shall be deemed
to be the holder of such Shares for all purposes hereunder and neither the
Trustees nor any Transfer Agent or registrar nor any officer or agent of the
Trust shall be affected by any notice of such death, bankruptcy or incompetence,
or other operation of law.
Section 6.8. Notices. Any and all notices to which any Shareholder may be
entitled and any and all communications shall be deemed duly served or given if
mailed, postage prepaid, addressed to any Shareholder of record at his last
known address as recorded on the register of the Trust.
Section 6.9. Voting Powers. The Shareholders shall have power to vote only
(i) for the election of Trustees as provided in Section 2.2 hereof or as
required by Section 16(a) of the 1940 Act; (ii) with respect to any investment
advisory or management contract as provided in Section 4.1; (iii) with respect
to termination of the Trust as provided in Section 9.2; (iv) with respect to any
amendment of the Declaration to the extent and as provided in Section 9.3; (v)
with respect to any merger, consolidation or sale of assets as provided in
Section 9.4; (vi) with respect to incorporation of the Trust to the extent and
as provided in Section 9.5.; (vii) to the same extent as the stockholders of a
Massachusetts business corporation as to whether or not a court action,
proceeding or claim should not be brought or maintained derivatively or as a
class action on behalf of the Trust or the Shareholders; and (viii) with respect
to such additional matters relating to the Trust as may be required by the
Amended Declaration, the Bylaws, the 1940 Act or any registration of the Trust
with the Commission (or any successor agency) or any state, or as the Trustees
may consider necessary or desirable. Each whole Share shall be entitled to one
vote as to any matter on which it is entitled to vote and each fractional Share
shall be entitled to a proportionate fractional vote, except that Shares held in
the treasury of the Trust shall not be voted and that the Trustees may, in
conjunction with the establishment of any series of Shares, establish conditions
under which the several series shall have separate voting rights or no voting
rights. There shall be no cumulative voting in the election of Trustees. Until
Shares are issued, the Trustees may exercise all rights of Shareholders and may
take any action required by law, the Declaration or the Bylaws to be taken by
Shareholders. The Bylaws may include further provisions for Shareholders' votes
and meetings and related matters.
6.10. Series or Class Designation. The Trustees, in their discretion, may
authorize the issuance of multiple series or Classes, and the different series
or Classes shall be established and designated, and the variations in the
relative rights and references as between the different series or Classes shall
be fixed and determined by the Trustees, provided that all Shares shall be
identical except that there may be variations so fixed and determined between
different series or Classes as to investment objective, purchase price, rights
of redemption and the price, terms and manner of redemption, special and
relative rights as to dividends and on liquidation, conversion rights,
conditions under which the several series or Classes shall have separate voting
rights or no voting rights, and such other matters, as the Trustees deem
appropriate. All references to Shares in the Amended Declaration of Trust shall
be deemed to be shares of any or all series or Class as the context may require.
If the Trustees shall authorize the issuance of Shares of the Trust with
multiple series or Classes, the following provisions shall be applicable:
-- 32 --
(a) The number of authorized shares and the number of shares of each series or
Class that may be issued shall be unlimited. The Trustees may classify or
reclassify any unissued Shares or any Shares previously issued and
reacquired of any series or Class into one or more other series, or one or
more other Classes that may be established and designated from time to
time. The Trustees may hold as treasury shares (of the same or some other
series or Class), reissue for such consideration and on such terms as they
may determine, or cancel any Shares of any series or Class reacquired by
the Trust at their discretion from time to time.
(b) With respect to the existing series or Classes of the Trust, the power of
the Trustees to invest and reinvest the Trust Property shall be governed by
Section 3.2 of this Amended Declaration of Trust.
(c) All consideration received by the Trust for the issue or sale of Shares of
a particular series, together with all assets in which such consideration
is invested or reinvested, all income, earnings, profits 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
irrevocably belong to that series for all purposes, subject only to the
rights of creditors of such series, and shall be so recorded upon the books
of account of the Trust. In the event that there are any assets, income,
earnings, profits, and proceeds thereof, funds, or payments which are not
readily identifiable as belonging to any particular series, the Trustees or
their delegate shall allocate them among any one or more of the series
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.
Each such allocation by the Trustees or their delegate shall be conclusive
and binding upon the shareholders of all series for all purposes. No holder
of Shares of any series shall have any claim on or right to any assets
allocated or belonging to any other series.
(d) The assets belonging to each particular series shall be charged with the
liabilities of the Trust allocated to that series and all expenses, costs,
charges and reserves attributable to that series which are not readily
identifiable as belonging to any particular Class, and any general
liabilities, expenses, costs, charges or reserves of the Trust which are
not readily identifiable as belonging to any particular series shall be
allocated and charged by the Trustees or their delegate to and among any
one or more of the series, 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 and no series or Class shall be liable to any
person except for its allocated share. Each allocation of liabilities,
expenses, costs, charges and reserves by the Trustees or their delegate
shall be conclusive and binding upon the Shareholders of all series and
Classes for all purposes. The Trustees or their delegate shall have full
discretion, to the extent not inconsistent with the 1940 Act, to determine
which items shall be treated as income and which items as capital; and each
such determination and allocation shall be conclusive and binding upon the
Shareholders. The assets of a particular series of the Trust shall, under
no circumstances, be charged with liabilities, expenses, costs, charges and
reserves attributable to any other series thereof of the Trust. All Persons
extending credit to, contracting with, or having any claim against a
particular series of the Trust shall look only to the assets of that
particular series for payment of such credit, contract or claim.
(e) With respect to any series, dividends and distributions on Shares of a
particular series or Class thereof may be paid or credited in such manner
and with such frequency as the Trustees may determine as long as consistent
with Section 8.2, 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 holders of Shares of that series or Class,
from such of the income and capital gains, accrued or realized, from the
assets belonging to that series, as the Trustees may determine, after
providing for actual and accrued liabilities belonging to that series or
Class or after retaining such amounts as the Trustees may deem desirable to
use in the conduct of the Trust's current or future business requirements.
All dividends and distributions on Shares of a particular series or Class
shall be distributed pro rata to the holders of that series or Class in
proportion to the number of Shares of that series or Class held by such
holders at the date and time of record established for the payment of such
dividends or distributions. Any such dividend or distribution paid in
Shares will be paid at the net asset value thereof as determined in
accordance with Section 8.1.
The dividends and distributions of investment income and capital gains with
respect to Shares of a Class of a series shall be in such amount as may be
declared from time to time by the Trustees, and such dividends and
distributions may vary between the Classes to reflect differing allocations
of the expenses of the Trust between the Classes to such extent and for
such purposes as the Trustees may deem appropriate.
-- 33 --
(f) Each Share of a series of the Trust shall represent a beneficial interest
in the net assets of such series. Each holder of Shares of a series or
Class thereof shall be entitled to receive his pro rata Share of
distributions of income and capital gains made with respect to such series
or Class net of liabilities, expenses, costs, charges and reserves
belonging and allocated to such series or Class. Upon redemption of his
Shares or indemnification for liabilities incurred by reason of his being
or having been a Shareholder of a series, such Shareholder shall be paid
solely out of the funds and property of such series or Class of the Trust.
Upon liquidation or termination of a series or Class thereof of the Trust,
a Shareholder of such series or Class thereof shall be entitled to receive
a pro rata Share of the net assets of such series based on the net asset
value of his Shares. A Shareholder of a particular series of the Trust
shall not be entitled to commence or participate in a derivative or class
action on behalf of any other series or the Shareholders of any other
series or Class of the Trust.
(g) All Shares of all series shall have "equal voting rights" as provided in
Section 18(i) of the 1940 Act, except as otherwise permitted or required by
the 0000 Xxx. The holder of each of the Shares shall be entitled to one
vote for each Share held. The Trustees shall have full power and authority
to call meetings of the Shareholders of a particular Class or Classes of
Shares or of one or more particular series of Shares, or otherwise call for
the action of such Shareholders on any particular matter. On each matter
submitted to a vote of the Shareholders, all Shares of all series shall
vote as a single Class ("Single Class Voting"), provided, however, that (a)
as to any matter with respect to which a separate vote of any series is
required by the 1940 Act, such requirements as to a separate vote by that
series shall apply in lieu of Single Class Voting as described above; and
(b) as to any matter which does not affect the interest of a particular
series, only the holders of Shares of the one or more affected series shall
be entitled to vote.
(h) Except as otherwise provided in this Article VI, the Trustees shall have
full power and authority to determine the designations, preferences,
privileges, sales charges, purchase prices, assets, liabilities, expenses,
costs, charges and reserves belonging or allocated thereto, limitations and
rights, including without limitation voting, dividend, distribution and
liquidation rights, of each series and Class of Shares.
(i) The establishment and designation of any series or Class of shares shall be
effective upon the execution by a majority of the then Trustees of an
instrument setting forth such establishment and designation and the
relative rights and preferences of such series, or as otherwise provided in
such instrument. At any time that there are no Shares outstanding of any
particular series or Class previously established and designated, the
Trustees may, by an instrument executed by a majority of their number,
abolish that series or Class and the establishment and designation thereof.
(j) Without limiting the authority of the Trustees set forth above to establish
and designate any further series or Class or to classify or reclassify all
or any part of the issued Shares of any series to make them part of an
existing or newly created Class or to amend rights and preferences of new
or existing series or Class, including the following as set forth in the
table below, all without Shareholder approval, there are hereby established
and designated, subject to the provisions and rights of this Amended
Declaration of Trust:
Series Name Classes
---------------------------------------------------------------- --------------
Gartmore GVIT Total Return Fund. . . . . . . . . . . . . . . . . I, II, III, IV
Gartmore GVIT Growth Fund. . . . . . . . . . . . . . . . . . . . I, IV
Gartmore GVIT Government Bond Fund . . . . . . . . . . . . . . . I, II, III, IV
Gartmore GVIT Money Market Fund. . . . . . . . . . . . . . . . . I, IV, V
GVIT Small Company Fund. . . . . . . . . . . . . . . . . . . . . I, II, III, IV
Strong GVIT Mid Cap Growth Fund. . . . . . . . . . . . . . . . . I, III
Nationwide GVIT Strategic Value Fund . . . . . . . . . . . . . . I
Xxxxxxxx GVIT Value Fund . . . . . . . . . . . . . . . . . . . . I, IV
Federated GVIT High Income Bond Fund . . . . . . . . . . . . . . I, III
X.X. Xxxxxx GVIT Balanced Fund . . . . . . . . . . . . . . . . . I, IV
MAS GVIT Multi Sector Bond Fund. . . . . . . . . . . . . . . . . I, III
GVIT Small Cap Value Fund. . . . . . . . . . . . . . . . . . . . I, II, III, IV
GVIT Small Cap Growth Fund . . . . . . . . . . . . . . . . . . . I, II, III
Gartmore GVIT Worldwide Leaders Fund . . . . . . . . . . . . . . I, II, III
Dreyfus GVIT Mid Cap Index Fund. . . . . . . . . . . . . . . . . I, II, III
Xxxxxx GVIT Growth Focus Fund. . . . . . . . . . . . . . . . . . I, II, III
Gartmore GVIT Global Technology and Communications Fund. . . . . I, II, III
Gartmore GVIT Global Health Sciences Fund. . . . . . . . . . . . I, II, III
Gartmore GVIT Emerging Markets Fund. . . . . . . . . . . . . . . I, II, III
Gartmore GVIT International Growth Fund. . . . . . . . . . . . . I, II, III
Gartmore GVIT Global Leaders Fund. . . . . . . . . . . . . . . . I
Gartmore GVIT European Leaders Fund. . . . . . . . . . . . . . . I, II, III
Gartmore GVIT Global Small Companies Fund. . . . . . . . . . . . I
-- 34 --
Gartmore GVIT OTC Fund. . . . . . . . . . . . . . . . . . . . . I
Gartmore GVIT Asia Pacific Leaders Fund. . . . . . . . . . . . . I, II, III
Gartmore GVIT U.S. Growth Leaders Fund . . . . . . . . . . . . . I, II, III
Gartmore GVIT Global Financial Services Fund . . . . . . . . . . I, II, III
Gartmore GVIT Global Utilities Fund. . . . . . . . . . . . . . . I, II, III
Gartmore GVIT Investor Destinations Aggressive Fund
Gartmore GVIT Investor Destinations Moderately Aggressive Fund
Gartmore GVIT Investor Destinations Moderate Fund
Gartmore GVIT Investor Destinations Moderately Conservative Fund
Gartmore GVIT Investor Destinations Conservative Fund
Gartmore GVIT Money Market Fund II
Gartmore GVIT Nationwide Leaders Fund. . . . . . . . . . . . . . I, II, III
Gartmore GVIT Micro Cap Equity Fund. . . . . . . . . . . . . . . I, II, III
Gartmore GVIT Mid Cap Growth Fund. . . . . . . . . . . . . . . . I, II, IV
Dreyfus GVIT International Value Fund. . . . . . . . . . . . . . I, II, III, IV
GVIT Equity 500 Index Fund . . . . . . . . . . . . . . . . . . . I, II, IV
The Trust offers to the option of purchasing shares of its series as
described in the table below:
CLASS CLASS DESCRIPTION
--------- --------------------------------------------------------
Class I . with an administrative services fee
Class II. with a Rule 12b-1 fee and an administrative services fee
Class III with an administrative services fee and redemption fee
Class IV. with an administrative services fee
Class V . with an administrative services fee
The following series are issued without class designation:
Gartmore GVIT Investor Destinations Aggressive Fund
Gartmore GVIT Investor Destinations Moderately Aggressive Fund
Gartmore GVIT Investor Destinations Moderate Fund
Gartmore GVIT Investor Destinations Moderately Conservative Fund
Gartmore GVIT Investor Destinations Conservative Fund
Gartmore GVIT Money Market Fund II
--------------------------------------------------------------------------------
ARTICLE VII
REDEMPTIONS
Section 7.1. Redemptions. In case any Shareholder at any time desires to
dispose of his Shares, he may deposit his certificate or certificates therefor,
duly endorsed in blank or accompanied by an instrument of transfer executed in
blank, or if the Shareholder has no certificates, a written request or other
such form of request as the Trustees may from time to time authorize, at the
office of the Transfer Agent or at the office of any bank or trust company,
either in or outside of Massachusetts, which is a member of the Federal Reserve
System and which the said Transfer Agent has designated in writing for that
purpose, together with an irrevocable offer in writing in a form acceptable to
the Trustees to sell the Shares represented thereby to the Trust at the net
asset value thereof per Share, determined as provided in Section 8.1 hereof,
next after such deposit. Payment for said Shares shall be made to the
Shareholder within seven (7) days after the date on which the deposit is made,
unless (i) the date of payment is postponed pursuant to Section 7.2 hereof, or
(ii) the receipt, or verification of receipt, of the purchase price for the
Shares to be redeemed is delayed, in either of which event payment may be
delayed beyond seven (7) days.
Section 7.2. Suspension of Right of Redemption. The Trust may declare a
suspension of the right of redemption or postpone the date of payment or
redemption for the whole or any part of any period (i) during which the New York
Stock Exchange is closed other than customary weekend and holiday closings; (ii)
during which trading on the New York Stock Exchange is restricted; (iii) during
which an emergency exists as a result of which disposal by the Trust of
securities owned by it is not reasonably practicable or it is not reasonably
practicable for the Trust fairly to determine the value of its net assets; or
(iv) during any other period when the Commission may for the protection of
security holders of the Trust by order permit suspension of the right of
redemption or postponement of the date of payment or redemption; provided that
applicable rules and regulations of the Commission shall govern as to whether
the conditions prescribed in (ii), (iii) or (iv) exist. Such suspension shall
take effect at such time as the Trust shall specify but not later than the close
of business on the business day next following the declaration of suspension,
and thereafter there shall be no right of redemption or payment on redemption
until the Trust shall declare the suspension at an end, except that the
suspension shall terminate in any event on the first day on which said stock
exchange shall have reopened or the period specified in (ii) or (iii) shall have
expired (as to which, in the absence of an official ruling by the Commission,
the determination of the Trust shall be conclusive). In the case of a suspension
of the right of redemption, a Shareholder may either withdraw his request for
redemption or receive payment based on the net asset value existing after the
termination of the suspension.
-- 35 --
Section 7.3. Redemption of Shares; Disclosure of Holding. If the Trustees
shall, at any time and in good faith, be of the opinion that direct or indirect
ownership of Shares or other securities of the Trust has or may become
concentrated in any Person to an extent which would disqualify the Trust as a
regulated investment company under the Internal Revenue Code, then the Trustees
shall have the power by lot or other means deemed equitable by them (i) to call
for redemption by any such Person of a number, or principal amount, of Shares or
other securities of the Trust sufficient to maintain or bring the direct or
indirect ownership of Shares or other securities of the Trust into conformity
with the requirements for such qualification; and (ii) to refuse to transfer or
issue Shares or other securities of the Trust to any Person whose acquisition of
the Shares or other securities of the Trust in question would result in such
disqualification. The redemption shall be effected at the redemption price and
in the manner provided in Section 7.1. The holders of Shares or other securities
of the Trust shall upon demand disclose to the Trustees in writing such
information with respect to direct and indirect ownership of Shares or other
securities of the Trust as the Trustees deem necessary to comply with the
provisions of the Internal Revenue Code, or to comply with the requirements of
any other authority.
Section 7.4. Redemptions of Accounts of Less than $500. The Trustees shall
have the power at any time to redeem Shares of any Shareholder at a redemption
price determined in accordance with Section 7.1 if at such time the aggregate
net asset value of the Shares in such Shareholder's account is less than $500. A
Shareholder will be notified that the value of his account is less than $500 and
allowed thirty (30) days to make an additional investment before redemption is
processed.
Section 7.5. Redemptions Pursuant to Constant Net Asset Value Formula. The
Trust may also reduce the number of outstanding Shares of the Money Market Fund
if necessary to maintain its constant net asset value per share.
--------------------------------------------------------------------------------
ARTICLE VIII
DETERMINATION OF NET ASSET VALUE,
NET INCOME AND DISTRIBUTIONS
Section 8.1. Net Asset Value. For all purposes under this Declaration of
Trust, the net asset value shall be determined by the Trustees as soon as
possible after the close of the New York Stock Exchange on each business day
upon which such Exchange is open, with the exception of the day after
Thanksgiving and either the day before or the day after December 25, whichever
business day, if any, the Trust declares as a business holiday, such net asset
value to remain in effect until the next determination of such net asset value
becomes effective; provided, however, that the Trustees may, in their
discretion, make a more frequent determination of the net asset value.
Such net asset value shall be determined in the following manner:
(a) All Securities listed on any recognized Exchange shall be appraised at the
quoted closing sale prices and in the event that there was no sale of any
particular security on such day the quoted closing bid price thereof shall
be used, or if any such security was not quoted on such day or if the
determination of the net asset value is being made as of a time other than
the close of the New York Stock Exchange, then the same shall be appraised
in such manner as shall be deemed by the Trustees to reflect its fair
value.
All other securities and assets of the Trust, including cash, prepaid and
accrued items, and dividends receivable, shall be appraised in such manner as
shall be deemed by the Trustees to reflect their fair value.
(b) From the total value of the Trust Property as so determined shall be
deducted the liabilities of the Trust, including reserves for taxes, and
such expenses and liabilities of the Trust as may be determined by the
Trustees to be accrued liabilities.
(c) The resulting amount shall represent the net asset value of the Trust
Property. The net asset value of a share of any class shall be the result
of the division of the net asset value of the underlying assets of that
class by the number of shares of that class outstanding. The net asset
value of the Trust Property and shares as so determined shall be final and
conclusive.
Section 8.2. Distributions to Shareholders.The Trustees shall from time to
time distribute ratably among the Shareholders such proportion of the net
profits, surplus (including paid-in surplus), capital, or assets held by the
Trustees as they may deem proper. Such distribution may be made in cash or
property (including without limitation any type of obligations of the Trust or
any assets thereof), and the Trustees may distribute ratably among the
Shareholders additional Shares issuable hereunder in such mariner, at such
times, and on such terms as the Trustees may deem proper. Such distributions may
be among the Shareholders of record at the time of declaring a distribution or
among the Shareholders of record at such later date as the Trustees shall
determine. The Trustees may always retain from the net profits such amount as
-- 36 --
they may deem necessary to pay the debts or expenses of the Trust or to meet the
obligations of the Trust, or as they may deem desirable to use in the conduct of
its affairs or to retain for future requirements or extensions of the business.
The Trustees may adopt and offer to Shareholders such dividend reinvestment
plans, cash dividend payout plans or related plans as the Trustees shall deem
appropriate.
Inasmuch as the computation of net income and gains for Federal income tax
purposes may vary from the computation thereof on the books, the above
provisions shall be interpreted to give the Trustees the power in their
discretion to distribute for any fiscal year as ordinary dividends and as
capital gains distributions, respectively, additional amounts sufficient to
enable the Trust to avoid or reduce liability for taxes.
Section 8.3. Determination of Net Income.The term "net income" with respect
to a class of shares is hereby defined as the gross earnings of the class,
excluding gains on sales of securities and stock dividends received, less the
expenses of the Trust allocated to the class by the Trustees in such manner as
they determine to be fair and equitable or otherwise chargeable to the class.
The expenses shall include (1) taxes attributable to the income of the Trust
exclusive of gains on sales, and (2) other charges properly deductible for the
maintenance and administration of the Trust; but there shall not be deducted
from gross or net income any losses on securities, realized or unrealized. The
Trustees shall otherwise have full discretion to determine which items shall be
treated as income and which items as capital and their determination shall be
binding upon the Beneficiaries.
Section 8.4. Power to Modify Foregoing Procedures. Notwithstanding any of
the foregoing provisions of this Article VIII, the Trustees may prescribe, in
their absolute discretion, such other bases and times for determining the per
Share net asset value of the Shares or net income, or the declaration and
payment of dividends and distributions as they may deem necessary or desirable.
Without limiting the generality of the foregoing, the Trustees may establish
additional series of Shares in accordance with Section 6.9.
--------------------------------------------------------------------------------
ARTICLE IX
DURATION; TERMINATION OF TRUST;
AMENDMENT; MERGERS; ETC.
Section 9.1. Duration.The Trust shall continue without limitation of time
but subject to the provisions of this Article IX.
Section 9.2. Termination of Trust.(a) The Trust must be terminated (i) by
the affirmative vote of the holders of not less than two-thirds of the Shares
outstanding and entitled to vote at any meeting of Shareholders, or (ii) by an
instrument in writing, without a meeting, signed by a majority of the Trustees
and consented to by the holders of not less than two-thirds of such Shares, or
by such other vote as may be established by the Trustees with respect to any
series of Shares, or (iii) by the Trustees by written notice to the
Shareholders. Upon the termination of the Trust,
(i) The Trust shall carry on no business except for the purpose of winding
up its affairs.
(ii) The Trustees shall proceed to wind up the affairs of the Trust and all
of the powers of the Trustees under this Amended Declaration shall
continue until the affairs of the Trust shall have been wound up,
including the power to fulfill or discharge the contracts of the
Trust, collect its assets, sell, convey, assign, exchange, transfer or
otherwise dispose of all or any part of the remaining Trust Property
to one or more persons at public or private sale for consideration
which may consist in whole or in part of cash, securities or other
property of any kind, discharge or pay its liabilities, and to do all
other acts appropriate to liquidate its business; provided that any
sale, conveyance, assignment, exchange, transfer or other disposition
of all or substantially all the Trust Property shall require
Shareholder approval in accordance with Section 9.4 hereof.
(iii) After paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities and
refunding agreements, as they deem necessary for their protection, the
Trustees may distribute the remaining Trust Property, in cash or in
kind or partly each, among the Shareholders according to their
respective rights.
(b) After termination of the Trust and distribution to the Shareholders as
herein provided, a majority of the Trustees shall execute and lodge among
the records of the Trust an instrument in writing setting forth the fact of
such termination, and the Trustees shall thereupon be discharged from all
further liabilities and duties hereunder, and the rights and interests of
all Shareholders shall thereupon cease.
-- 37 --
Section 9.3. Amendment Procedure.(a) This Amended Declaration may be
amended by a Majority Shareholder Vote or by any instrument in writing, without
a meeting, signed by a majority of the Trustees and consented to by the holders
of not less than a majority of the Shares outstanding and entitled to vote. The
Trustees may also amend this Amended Declaration without the vote or consent of
Shareholders to designate series in accordance with Section 6.9 hereof, to
change the name of the Trust, to supply any omission, to cure, correct or
supplement any ambiguous, defective or inconsistent provision hereof, or if they
deem it necessary to conform this Amended Declaration to the requirements of
applicable federal laws or regulations or the requirements of the regulated
investment company provisions of the Internal Revenue Code, but the Trustees
shall not be liable for failing so to do.
(b) No amendment may be made under this Section 9.3 which would change any
rights with respect to any Shares of the Trust by reducing the amount
payable thereon upon liquidation of the Trust or by diminishing or
eliminating any voting rights pertaining thereto, except with the vote or
consent of the holders of two-thirds of the Shares outstanding and entitled
to vote, or by such other votes as may be established by the Trustees with
respect to any series of Shares. Nothing contained in this Amended
Declaration shall permit the amendment of this Amended Declaration to
impair the exemption from personal liability of the Shareholders, Trustees,
officers, employees and agents of the Trust or to permit assessments upon
Shareholders.
(c) A certificate signed by a majority of the Trustees setting forth an
amendment and reciting that it was duly adopted by the Shareholders or by
the Trustees as aforesaid or a copy of the Amended Declaration, as amended,
and executed by a majority of the Trustees, shall be conclusive evidence of
such amendment when lodged among the records of the Trust.
Section 9.4. Merger, Consolidation and Sale of Assets. The Trust may merge
or consolidate with any other corporation, association, trust or other
organization or may sell, lease or exchange all or substantially all of the
Trust Property, including its goodwill, upon such terms and conditions and for
such consideration when and as authorized at any meeting of Shareholders called
for the purpose by the affirmative vote of the holders of not less than
two-thirds of the Shares outstanding and entitled to vote, or by an instrument
or instruments in writing without a meeting, consented to by the holders of not
less than two-thirds of such Shares, or by such other vote as may be established
by the Trustees with respect to any series of Shares; provided, however, that,
if such merger, consolidation, sale, lease or exchange is recommended by the
Trustees, the vote or written consent of the holders of a majority of Shares
outstanding and entitled to vote, or by such other vote as may be established by
the Trustees with respect to any series of Shares, shall be sufficient
authorization; and any such merger, consolidation, sale, lease or exchange shall
be deemed for all purposes to have been accomplished under and pursuant to the
statutes of the Commonwealth of Massachusetts.
Section 9.5. Incorporation. With the approval of the holders of a majority
of the Shares outstanding and entitled to vote, or by such other vote as may be
established by the Trustees with respect to any series of Shares, the Trustees
may cause to be organized or assist in organizing a corporation or corporations
under the laws of any jurisdiction or any other trust, partnership, association
or other organization to take over all of the Trust Property or to carry on any
business in which the Trust shall directly or indirectly have any interest, and
to sell, convey and transfer the Trust Property to any such corporation, trust,
association or organization in exchange for the shares or securities thereof or
otherwise, and to lend money to, subscribe for the shares or securities of, and
enter into any contracts with any such corporation, trust, partnership,
association or organization in which the Trust holds or is about to acquire
shares or any other interest. The Trustees may also cause a merger or
consolidation between the Trust or any successor thereto and any such
corporation, trust, partnership, association or other organization if and to the
extent permitted by law, as provided under the law then in effect. Nothing
contained herein 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 selling, conveying
or transferring a portion of the Trust Property to such organization or
entities.
--------------------------------------------------------------------------------
ARTICLE X
REPORTS TO SHAREHOLDERS
The Trustees shall at least semi-annually submit to the Shareholders a
written financial report of the transactions of the Trust, including financial
statements which shall at least annually be certified by independent public
accountants.
-- 38 --
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ARTICLE XI
MISCELLANEOUS
Section 11.1. Filing. This Amended Declaration and any amendment hereto
shall be filed in the office of the Secretary of the Commonwealth of
Massachusetts and in such other places as may be required under the laws of
Massachusetts and may also be filed or recorded in such other places as the
Trustees deem appropriate. Each amendment so filed shall be accompanied by a
certificate signed and acknowledged by a Trustee stating that such action was
duly taken in a manner provided herein, and unless such amendment or such
certificate sets forth some later time for the effectiveness of such amendment,
such amendment shall be effective upon its filing. A restated Declaration,
integrating into a single instrument all of the provisions of the Declaration
which are then in effect and operative, may be executed from time to time by a
majority of the Trustees and shall, upon filing with the Secretary of the
Commonwealth of Massachusetts, be conclusive evidence of all amendments
contained herein and may thereafter be referred to in lieu of the original
Declaration and the various amendments thereto.
Section 11.2. Governing Law. This Amended Declaration is executed by the
Trustees and delivered with reference to the laws of the Commonwealth of
Massachusetts, and the rights of all parties and the validity and construction
of every provision hereof shall be subject to and construed according to the
laws of said State.
Section 11.3. Counterparts. This Amended Declaration may be simultaneously
executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts, together, shall constitute one and the same
instrument, which shall be sufficiently evidenced by any such original
counterpart.
Section 11.4. Reliance by Third Parties. Any certificate executed by an
individual who, according to the records of the Trust appears to be a Trustee
hereunder, certifying to: (a) the number or identity of Trustees or
Shareholders, (b) the due authorization of the execution of any instrument or
writing, (c) the form of any vote passed at a meeting of Trustees or
Shareholders, (d) the fact that the number of Trustees or Shareholders present
at any meeting or executing any written instrument satisfies the requirements of
this Amended Declaration, (e) the form of any Bylaws adopted by or the identity
of any officers elected by the Trustees, or (f) the existence of any fact or
facts which in any manner relate to the affairs of the Trust, shall be
conclusive evidence as to the matters so certified in favor of any Person
dealing with the Trustees and their successors.
Section 11.5. Provisions in Conflict with Law or Regulations.
(a) The provisions of the Amended Declaration are severable, and if the
Trustees shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the regulated investment
company provisions of the Internal Revenue Code or with other applicable
laws and regulations, the conflicting provisions shall be deemed never to
have constituted a part of the Amended Declaration; provided, however, that
such determination shall not affect any of the remaining provisions of the
Amended Declaration or render invalid or improper any action taken or
omitted prior to such determination.
(b) If any provision of the Amended Declaration shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability
shall attach only to such provision in such jurisdiction and shall not in
any manner affect such provision in any other jurisdiction or any other
provision of the Amended Declaration in any jurisdiction.
Section 11.6. Class Shares.
(a) Notwithstanding any other term or provision in this Amended Declaration to
the contrary, and subject to the provisions of the 1940 Act, the Internal
Revenue Code and to any other applicable law or regulation, the Trustees
are empowered from time to time, in their absolute discretion and without
the approval of Shareholders, to create, identify by descriptive name or
symbol and define the characteristics of, allocate expenses to, calculate
net asset value for, declare and pay dividends regarding, issue and redeem,
establish any special voting rights regarding, otherwise create and
administer the terms and provisions of, and in their discretion amend the
Amended Declaration to reflect, one or more classes of Shares of one or
more existing or newly created series of Shares. The authority granted to
the Trustees herein shall include the authority to designate or redesignate
all or part of the Shares of a then existing series or class of Shares as
part of an existing or newly created class of Shares of such series.
-- 39 --
IN WITNESS WHEREOF, the undersigned Trustees have hereunto set their hand
this 19th day of September, 2002.
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxx Xxxxxxxxxxxx
Xxxxxxx X. Xxxxx, Trustee . Xxxxx Xxxxxxxxxxxx, Trustee
/s/ C. Xxxxx XxXxxx /s/ Xxxxxx X. Xxxxxx
C. Xxxxx XxXxxx, Trustee. . Xxxxxx X. Xxxxxx, Trustee
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxxx Xxxxxxxx
Xxxxxx X. Xxxxxx, Trustee . Xxxxxxx Xxxxxxxx, Trustee
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxx
Xxxx X. Xxxxxxx, Trustee. . Xxxxxx X. Xxxx, XX, Trustee
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Trustee Xxxxx X. Xxxxxxx, Trustee
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Trustee
--------------------------------------------------------------------------------
-- 40 --
