THE XXXXXX FUND FOR GROWTH AND INCOME
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AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
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This AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
made at Boston, Massachusetts, as of the 3rd day of October, 1996
hereby amends and restates in its entirety the Agreement and
Declaration of Trust dated October 1, 1957, as heretofore
amended, by the Trustees hereunder and by the holders of shares
of beneficial interest to be issued hereunder as hereinafter
provided and shall be effective as of the date hereof.
WITNESSETH that
WHEREAS, the Trustees have agreed to manage all property
coming into their hands as trustees in accordance with the
provisions hereinafter set forth,
NOW, THEREFORE, the said Trustees hereby declare that they
will hold all cash, securities and other property which they may
from time to time acquire in any manner as Trustees hereunder IN
TRUST to manage and dispose of the same upon the following terms
and conditions for the pro rata benefit of the holders from time
to time of certificates representing shares in this Trust as
hereinafter set forth.
Article I
Name and Definitions
NAME
Section 1. This Trust shall be known as "The Xxxxxx Fund
for Growth and Income", and the Trustee shall conduct the
business of the Trust under such name. Whenever Xxxxxx Xxxxxx,
Jr., shall cease for any reason to be a Trustee hereunder, his
name shall not thereafter be used as part of the name of the
Trust without his written consent or that of his heirs or
personal representatives.
DEFINITION OF "BENEFICIARY"
Section 2. The term "beneficiaries" wherever it appears in
this Declaration of Trust shall mean the holders of certificates
representing the shares of beneficial interest issued by the
Trustees as hereinafter provided. Every such beneficiary by the
acceptance of a certificate representing one or more of such
shares shall be held to have expressly assented and agreed to the
terms hereof and to have become a party hereto.
A beneficiary of record appearing upon the books of the
Trustees shall be deemed by the Trustees for all purposes to be
the owner of shares standing in his name.
DEFINITION OF "TRUST PROPERTY"
Section 3. The term "Trust Property" wherever the same
appears herein shall mean all of the Trust Property held by the
Trustees as trustees hereunder.
MARGINAL NOTES
Section 4. The Article headings and marginal notes inserted
in this Declaration are for convenience of reference and are not
to be taken to control or affect the meaning, construction, or
effect thereof.
Article II
Purpose of Trust
PURPOSE OF TRUST
The purpose of this Trust is to provide individuals,
institutions and other investors with a diversified investment
emphasizing capital growth and current income under the personal
management of the Trustees. It is expected that the Trust
Property will be invested largely in selected marketable
securities with diversification as to industries as well as to
individual companies. Changes in investments will be made from
time to time in an endeavor to secure the best utilization of the
Trust's resources.
Article III
Issuance of Shares
PAR VALUE OF SHARES
Section 1. The beneficial ownership of the Trust Property
shall be divided into an unlimited number of transferable shares
of $.50 par value each. The Trustees may, without approval of
the beneficiaries, divide the shares into two or more classes,
shares of each such class having such preferences and special or
relative rights and privileges (including conversion rights, if
any) as the Trustees may determine and as shall be set forth in
the Bylaws. Such shares shall be represented by certificates in
such form as the Trustees may from time to time determine,
transferable by the holders thereof in person or by attorney upon
the books of the Trustees upon surrender of such certificate
properly endorsed for transfer. The Trustees may authorize the
certificates to bear the facsimile signatures of any one or more
of the Trustees provided such certificates are signed by an
authorized officer of a duly appointed transfer agent or
registrar of the Trust. The Trustees shall have full power and
authority as to the issue and transfer of certificates in place
of any certificates lost or destroyed. Such shares may be issued
in such fractions as the Trustees shall determine from time to
time, such fractional shares to have pro rata the same rights and
privileges, including voting power, rights to dividends and other
pro rata rights as full shares, and wherever the term share or
shares is used herein it shall be deemed for all purposes to
include such fractional shares to the extent of such fractions as
full shares. The Trust at any time at the discretion of the
Trustees may purchase, and the record holders shall be obligated
to sell, all of such fractional shares at the net asset value
thereof in effect at the time of such purchase and the amount of
such net asset value shall be distributed to such record holders
whereupon all such fractional shares shall become void and such
holders of fractional shares shall have no rights in respect
thereof. In lieu of issuing certificates for full or fractional
shares, the Trustees may either issue receipts therefor in such
forms as they may determine or may keep accounts upon their books
for the record holders of such shares, who shall in either case
be deemed, for all purposes hereunder, to be the holders of
certificates for such shares as if they had accepted such
certificates and shall be held to have expressly assented and
agreed to the terms hereof. The record holders of the full or
fractional shares of the Trust shall be entitled to obtain
certificates therefor at any time upon request to the Trustees,
but the Trust at the discretion of the Trustees may purchase, and
such record holders shall be obligated to sell, any fractional
shares of such holder at the net asset value thereof in effect at
the time of such request.
AMOUNT RECEIVED BY TRUST
Section 2. The shares of ownership in the Trust Property
may be issued by the Trustees at not less than the par value
thereof to such person or persons and at such price or prices for
cash and/or such other property as they may from time to time
determine. Upon the issue of shares in exchange for property
whether acquired by merger or otherwise, the value of such
property shall be appraised by the Trustees in such manner as
shall be deemed by them to reflect its fair value, and the value
thereof when so determined in good faith shall be conclusive. In
no event shall any issue or sale, subsequent to the issuance and
sale of the first 17,900 shares, be at a rate which will yield to
the Trust a sum or value less than the fair net asset value per
share of the then outstanding shares of the Trust as determined
by the Trustees as hereinafter provided. Provided, except to the
extent otherwise required or permitted by the preferences and
special or relative rights and privileges of any classes of
shares of the Trust, that the Trustees may also issue shares pro
rata to the beneficiaries at any time as a stock dividend and may
issue to the beneficiaries from time to time rights to subscribe
pro rata to new shares in the Trust at any price fixed by the
Trustees; provided, however, that any such shares or rights to
subscribe shares issued to the beneficiaries of a particular
class of shares shall be issued to such beneficiaries pro rata in
proportion to the number of shares of such class held by each of
them.
PAID-IN SURPLUS
Section 3. Any excess received by the Trustees upon the
issue and sale of the shares of the Trust over the par value
thereof may be carried upon the books of the Trustees as paid-in
surplus. The shares may at any time and from time to time in the
discretion of the Trustees be changed to shares either of no par
value or of such other par value as the Trustees may determine,
and the difference between such other par value, or the
difference between the stated value of the shares if they are
changed to shares of no par value, and the then book value of the
shares, exclusive of earned surplus, may be carried as paid-in or
capital surplus.
STATUS OF SHARES
Section 4. Shares herein shall be deemed to be personal
property giving only the rights in this instrument and in the
certificates specifically set forth. The death of a beneficiary
during the continuance of the Trust shall not operate to
terminate the same nor entitle the representative of any deceased
beneficiary to an accounting or to take any action in court or
elsewhere against the Trustees, but only to the rights of said
decedent under this Trust upon the surrender of the certificate
or certificates for the shares owned by him. Ownership of shares
shall not entitle the beneficiary to any title in or to the whole
or any part of the Trust property or right to call for a
partition or division of the same or for an accounting, nor shall
the ownership of shares constitute the holders thereof partners.
LIMITATION OF PERSONAL LIABILITY
Section 5. The Trustees shall have no power to bind the
beneficiaries personally or to call upon them for the payment of
any sum of money or assessment whatsoever other than such as said
beneficiaries may at any time personally agree to pay by way of
subscription to any shares or otherwise.
Article IV
Rights and Privileges of Beneficiaries
Section 1. Subject to the voting powers of one or more
classes of shares set forth elsewhere in this Declaration of
Trust or in the Bylaws, the beneficiaries shall have the right to
vote regarding the following matters:
(a) The election of Trustees as provided in Article V,
Section 1;
(b) The removal of Trustees as provided in Article V,
Section 1;
(c) The authorization of any proposed sale of the Trust
Property as a whole as provided in Article VI, Section
1; and
(d) The authorization of any proposed alteration or
amendment of this Declaration of Trust as provided in
Article VI, Section 4.
VOTING POWERS AND MEETINGS
Meetings of beneficiaries of any or all classes may be
called by the Trustees from time to time for the purpose of
taking action upon any matter requiring the vote or authority of
the beneficiaries of such classes as herein provided or upon any
other matter deemed by the Trustees to be necessary or desirable.
Notice of any meeting of the beneficiaries shall be given or
caused to be given by the Trustees at least ten (10) days before
such meeting by mailing postage prepaid, a written or printed
notice thereof stating the time, place and purpose of the meeting
to each beneficiary at his address as the same appears upon the
books of the Trust.
Each beneficiary of record shall be entitled at any such
meeting to one vote, either in person or by lawful proxy in
writing filed with the Trustees, for each share of the Trust
standing on its books in his name. On any matter submitted to a
vote of beneficiaries, all shares of the Trust then entitled to
vote shall, except as otherwise provided in the Bylaws, be voted
in the aggregate as a single class without regard to classes of
shares, except (1) when required by the Investment Company Act of
1940 or when the Trustees shall have determined that the matter
affects one or more classes of shares materially differently,
shares shall be voted by individual class; and (2) when the
Trustees have determined that the matter affects only the
interests of one or more classes, then only beneficiaries of such
classes shall be entitled to vote thereon. At any meeting of the
beneficiaries, a quorum of the transaction of business shall
consist of holders of thirty percent of the shares of the Trust
then outstanding present in person or by proxy, except that where
this Declaration of Trust requires that holders of any class
shall vote as an individual class, then thirty percent of the
aggregate number of shares of that class entitled to vote shall
be necessary to constitute a quorum for the transaction of
business of that class. Any lesser number may make reasonably
adjournments of such meeting until a quorum is obtained. If the
Trustees shall fail or refuse to call or give notice of any
meeting provided for above for a period of thirty (30) days after
request in writing made by beneficiaries holding an aggregate of
at least ten per cent (10%) of the shares of the Trust of all
classes then outstanding, then beneficiaries holding a like
percentage of such shares may call and give notice of such
meeting, and thereupon the meeting shall be held in the manner
provided for herein in case of call thereof by the Trustees.
At each meeting of the beneficiaries, the Trustees shall
appoint one of their number or one of the beneficiaries to
preside thereat. The Trustees shall appoint a Clerk for each
such meeting, who shall be duly sworn to the faithful discharge
of his duties, to keep the minutes of such meeting, which minutes
shall be signed and attested by him and filed with the records of
the Trust.
RIGHT TO DIVIDENDS
Section 2. The beneficiaries shall be entitled to receive
pro rata annually or oftener dividends in cash equal
approximately to the net income of the Trust except to the extent
otherwise required or permitted by the preferences and special or
relative rights and privileges of any classes of shares of the
Trust, provided that any distribution to the beneficiaries of a
particular class of shares shall be made to such beneficiaries
pro rata in proportion to the number of shares of such class held
by each of them. Such distributions may be made even though the
capital of the Trust may be impaired at the time of distribution.
In addition the Trustees may make further distributions
among the beneficiaries in cash or shares out of any available
net assets of the Trust, but if any such distribution is made the
source of the distribution together with the basis of
calculation, in the case of a distribution out of capital gains,
shall be called to the attention of the beneficiaries. In the
case of a distribution payable in cash or stock at the election
of any of the beneficiaries, the Trustees may prescribe whether a
beneficiary failing to express his election before a given time
shall be deemed to have elected to take shares rather than cash,
or to take cash rather than shares, or to take shares with cash
adjustments for fractions.
DEFINITION OF NET INCOME
Section 3. The term "net income" is hereby defined as the
gross earnings of the Trust, excluding gains on sales of
securities and stock dividends received, less the expenses of the
Trust. The expenses shall include (1) taxes attributable to the
income of the Trust exclusive of gains on sales, (2) the
compensation of the Trustees, and (3) 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.
RIGHT TO SELL SHARES TO TRUST
Section 4. The Trust shall purchase such shares as are
offered by any beneficiary for redemption, upon the presentation
of the certificate or certificates therefor, if any, to the Trust
or to the Transfer Agent, duly endorsed or accompanied by a
proper instrument of transfer, together with a request that the
Trust purchase the shares represented thereby; and the Trust will
pay therefor in cash the net asset value of the shares so
presented determined as of such time as the Trustees may from
time to time specify, subject to any applicable rule of the
Securities and Exchange Commission adopted under the Investment
Company Act of 1940.
For the protection of the remaining beneficiaries the
Trustees reserve the right to demand not more than seven (7)
days' written notice of the request to purchase such shares at
such net asset value, which period may be extended by the
Trustees for such times as the New York Stock Exchange may at any
time be closed for business other than customary week-end and
holiday closings or open upon a restricted basis, all under such
reasonable rules and regulations as may be determined by the
Trustees from time to time.
DETERMINATION OF NET ASSET VALUE
Section 5. For all purposes under this Indenture the net
asset value shall be determined by the Trustees or not less than
two of any three or more officers of this Trust designated from
time to time for this purpose 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, such net asset value to
remain in effect until the next determination of such net asset
value becomes effective; provided, however, that the Trustees or
such officers may in their discretion make a more frequent
determination of the net asset value by reappraisal or by
calculation or estimation which shall become effective one hour
after the time as of which such net asset value is determined.
Such net asset value shall be determined in the following
manner:
(1) Securities for which market quotations are readily
available shall be valued at that price which, in the opinion of
the Trustees or the officer or officers making the determination,
most nearly represents the market value of the particular
security, and all other securities and assets shall be valued at
their fair value as determined in good faith by the Trustees in
accordance with accounting principles generally accepted at the
time.
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.
(2) From the total value of the Trust Property as so
determined shall be deducted the liabilities of the Trust,
including Managers' fees and Trustees' compensation and such
other expenses, liabilities and proper reserves, if any, of the
Trust as may be determined by the Trustees to be accruing
liabilities. For the purpose of determining such net asset value
there may also be deducted a reserve estimated by the Trustees to
be reasonable for such taxes and expenses as would be then or
thereafter incurred by the Trust if the Trust had sold all of its
assets at the net asset value thereof at the time of such
determination.
(3) The resulting amount shall represent the net asset value
of the Trust Property. In the event that there shall be more
than one class of shares outstanding at the time of any such
determination, the net asset value of the Trust Property shall be
allocated among such classes in such manner as the Trustees may
reasonably determine in order to give effect to the preferences
and special or relative rights and privileges of such classes.
The net asset value per share shall be determined by dividing the
net asset value of the Trust Property by the number of the shares
of the Trust then outstanding (exclusive of any shares held in it
Treasury) or, if more than one class of shares is outstanding, by
dividing the net asset value of the Trust Property allocated to
each class by the number of shares of such respective class then
outstanding (exclusive of any shares held in Treasury). The net
asset value of the Trust Property and shares as so determined
shall be final and conclusive.
During periods when, in the opinion of the Trustees, an
emergency exists or violent changes in securities prices are
taking place, the Trustees may adopt such other method or methods
of appraising the value of the assets of the Trust as they shall
reasonably deem in the best interests of all beneficiaries of the
Trust.
REPORTS TO BENEFICIARIES
Section 6. The Trustees shall keep accurate books of
accounts and shall make reports to the beneficiaries at least
semi-annually, such reports to contain a list of the investments
of the Trust and a balance sheet and income statement for the
period covered thereby in such detail as the Trustees shall deem
proper. In addition, such reports shall contain a statement of
all amounts paid to any firm, corporation, bank or trust company
having a partner, officer or director who is also a Trustee of
the Trust.
Article V
Election, Term of Office, Powers and Duties of Trustees
ELECTION
Section 1. A Trustee may be elected either by the Trustees
or by the beneficiaries. There shall not be less than three
Trustees. The number of Trustees shall be fixed by the Trustees.
Each Trustee elected by the Trustees or the beneficiaries shall
serve until he or she retires, resigns, is removed or dies or
until the next meeting of beneficiaries called for the purpose of
electing Trustees and until the election and qualification of his
or her successor. At any meeting called for this purpose, a
Trustee may be removed by vote of two-thirds of the outstanding
shares. The vote of beneficiaries holding a plurality of the
shares of the Trust represented at such a meeting at which a
quorum is present shall be necessary for the election of
Trustees.
TITLE OF SUCCESSORS
The title to the Trust Property shall vest in any Trustee or
Trustees elected or appointed as above provided, after written
acceptance of such election or appointment by him or them,
without any further act, and he or they shall thereupon have the
same powers, duties and exemptions as though originally named as
Trustee herein. Such written acceptances shall be filed with the
records of the Trust and any certificate signed by a majority of
the Trustees as to who are or were Trustees at any time shall be
conclusive and binding for all purposes.
VACANCIES
During any vacancy the remaining Trustee or a majority of
the remaining Trustees may exercise any and all of the powers of
the Trustees hereunder. The determination of a vacancy or
vacancies in the number of Trustees by reason of death,
resignation or disability when made by the remaining Trustee or
Trustees and set forth in any instrument filling such vacancy or
vacancies shall be final and conclusive for all purposes.
DELEGATION OF AUTHORITY
Any Trustee may by power of attorney delegate his powers for a
period not exceeding six (6) months at any one time to any other
Trustee or Trustees hereunder, provided that in no case shall
less than a majority of the Trustees personally exercise their
powers hereunder except as herein otherwise expressly provided.
Any instrument executed under the provisions of this section may
be deposited with a custodian duly appointed for the Trust
Property and the depositing in such manner shall have the same
force and effect as the deposit with the Trustee or Trustees
hereinbefore provided.
Notwithstanding any other provisions of this Declaration of
Trust, the Trustees may, consistent with their responsibility for
the general policies of the Trust and the general supervision of
the business of the Trust and consistent with any applicable
provisions of the Investment Company Act of 1940, delegate from
time to time to such one or more of their number or to their
officers, employees and agents or to any corporation, trust,
association or other organization engaged as investment advisor
or manager as hereinafter provided, the doing of such things,
including, without limitation, authority to determine from time
to time what investments shall be purchased, held, sold or
exchanged and what portion, if any, of the Trust assets shall be
held uninvested and to make changes in the investments of the
Trust, and the execution of such deeds or other instruments
either in the name of the Trust or the names of the Trustees or
as their attorney or attorneys or otherwise as the Trustees may
from time to time deem expedient.
The Trustees may appoint from their number an executive
committee of not less than three to serve during their pleasure.
The executive committee may, when the Trustees are not in session
at a meeting, exercise such of the powers and authority of the
Trustees as may be conferred from time to time by the Trustees.
Rules governing the actions of the executive committee may be
adopted by the Trustees from time to time as they deem
appropriate.
The Trustees may appoint from their number such other
committees from time to time as they deem appropriate. The
number composing such committees, the powers and authority
conferred upon such committees and the rules governing the
actions of such committees shall be determined by the Trustees at
their discretion.
Any agreement, deed, mortgage, lease or other instrument or
writing executed by one or more of the Trustees or by any
officer, employee, or agent pursuant to general or specific
authorization (or upon ratification thereof) by action of the
Trustees as provided in this Declaration of Trust, shall be valid
and binding upon the Trustees and upon the Trust.
The Trustees may elect or appoint a Chairman (who shall be a
Trustee) and a President (who shall be a Trustee) and may elect
or appoint, from among their number or otherwise, one or more
Vice-Presidents, a Treasurer, a Clerk, a Comptroller, one or more
Assistant Clerks and Assistant Treasurers and such other officers
or agents, who shall have such powers, duties and
responsibilities as the Trustees may deem to be advisable. Two
or more offices may be held by the same person.
The Trustees may adopt and from time to time amend or repeal
Bylaws for the conduct of the business of the Trust, and in such
Bylaws may define the duties of the officers, agents, employees
and representatives of the Trust. The Bylaws shall at all times
be consistent with the provisions of this Declaration of Trust.
NO DIRECT SALES OR PURCHASE OF SECURITIES
BETWEEN TRUST AND TRUSTEES
Section 2. No Trustee shall directly or indirectly purchase
or sell any securities or other property from or to the Trust
other than shares of the Trust, except purchases and sales of
securities or other property if such transaction is permitted by,
or is exempt or exempted from, the provisions of the Investment
Company Act of 1940, as amended. Anything herein to the contrary
notwithstanding, any Trustee or any organization with which any
Trustee may be associated may also act as broker for the Trust in
making purchases and sales of securities for or to the Trust for
its investment portfolio, and may charge and receive from the
Trust the usual and customary commission for such service. Any
organization with which a Trustee may be associated in acting as
broker for the Trust shall be responsible only for the proper
execution of transactions in accordance with the instructions of
the Trust and shall be subject to no further liability of any
sort whatever.
NO LOANS TO TRUSTEES OR DISTRIBUTOR
Section 3. No Trustee or Managers or general distributor of
the shares of the Trust or any partner, officer, director or
trustee of such Managers or distributor shall directly or
indirectly borrow any money or other property from the Trust.
INVESTMENT POWERS AND RESTRICTIONS
Section 4. The Trustees shall have full power and authority
to invest in, purchase, sell, and otherwise engage in
transactions with respect to, securities, debt instruments and
other property, instruments and rights of a financial character,
and to engage in borrowings and to pledge or otherwise encumber
the assets of the Trust. The Trustees also shall have full power
and authority to exercise any rights of ownership with respect to
any of the foregoing. The Trustees shall not in any way be bound
or limited by any present or future law or custom in regard to
trust investments but shall have full authority and power to make
any and all investments which they in their uncontrolled
discretion may deem proper to accomplish the purposes of the
Trust.
The Trustees may enter into a written contract with any
person, including any firm, corporation, trust or association in
which any Trustee or beneficiary may be interested, hereinafter
called the "Managers," to act as investment advisors and managers
of the Trust and to provide such investment and management
services and facilities as the Trustees may from time to time
consider necessary for the proper management of the Trust
Property.
Any such contract shall be consistent with and subject to
the requirements of the Investment Company Act of 1940 with
respect to its continuance in effect, its termination and the
method of authorization and approval of such contract or renewal
thereof, and such management contract shall not be amended,
transferred, assigned, sold, hypothecated or pledged without the
affirmative vote of the holders of a majority of the outstanding
voting securities of the Trust. Any such contract shall also
provide that neither the Managers nor any of its partners,
officers, directors or trustees shall take "long" or "short"
positions in purchasing or selling shares of the Trust. In the
event of the cancellation or expiration by its own terms of any
such management contract, no new management contract shall become
effective without the affirmative vote of the holders of a
majority of the outstanding voting securities of the Trust. For
the purposes of this paragraph, the term "majority of the
outstanding voting securities" shall have the meaning defined in
the Investment Company Act of 1940.
The Managers may also be a distributor for the sale of the
shares of the Trust by separate contract or may be a person
controlled by or affiliated with any Trustee or any distributor
or a person in which any Trustee or any distributor is
financially interested subject only to applicable provisions of
law. Nothing herein contained shall operate to prevent any
Managers who also act as such a distributor, from also receiving
for services rendered as such distributor, such compensation as
may be provided by written contract pursuant to Article V,
Section 6 hereof, such compensation to be paid by the person
purchasing the shares of the Trust, and not to be charged to the
Trust.
ALL PROPERTY HELD BY CUSTODIAN
Section 5. All securities, cash and other property owned by
the Trust shall be held by one or more custodians who may be
authorized to employ sub-custodians and to deposit all or any
part of the securities, cash and other property in a system or
systems for the central handling of securities. The custodian
shall be employed under a written contract. Said contract and
all amendments thereto shall be approved by the Trustees. The
Trustees shall upon the resignation or inability to serve of its
custodian or upon change of custodian: (i) in case of such
resignation or inability to serve, use their best efforts to
obtain a successor custodian, (ii) require that the cash and
securities owned by the Trust be delivered directly to the
successor custodian and (iii) in the event no successor custodian
can be found, submit to the shareholders, before permitting
delivery of the cash and securities owned by the Trust otherwise
than to a successor custodian, the question whether this Trust
shall be terminated or shall function without a custodian.
SPECIFIC POWERS OF TRUSTEES
Section 6. Without limiting the generality of any other
power or authority herein granted to the Trustees, they shall
have full power and authority to do any of the following acts:
TO PAY TAXES
(a) To pay any and all taxes or liens of whatever nature or
kind imposed upon or against the Trust Property or any part
thereof, or imposed individually or jointly upon any of the
Trustees hereunder by reason of the Trust Property or the income
or profits thereof, such payment to be out of the Trust Property
available for that purpose.
TO MAKE DISTRIBUTIONS
(b) To make distribution of income and of available net
assets to the beneficiaries in the manner designated in Article
IV, Section 2, hereof.
TO DEAL WITH TRUST PROPERTY
(c) In all matters and respects to sell, convey and
generally to deal with the Trust Property and to manage and
conduct the Trust hereby created (including the giving or
furnishing of proxies for voting at meetings in respect of any
shares of stock, bonds or other securities at any time included
in the Trust Property) as fully as if the Trustees were the
absolute owners thereof, and to execute any and all instruments
and to do any and all things incidental to this Trust not
inconsistent with the provisions hereof, the execution or
performance of which the Trustees may deem expedient.
TO EMPLOY CUSTODIAN AND AGENTS
(d) To employ such custodian or custodians for the
safekeeping and determination of the net asset value of the Trust
Property and of the shares, such dividend disbursing agent or
agents, and such transfer agent or transfer agents and registrar
or registrars for the shares of the Trust, and to make and
perform such contracts for the aforesaid purposes as in their
opinion may be reasonable, necessary, or proper for the conduct
of the affairs of the Trust, and to pay the fees and
disbursements of such custodians, dividend disbursing agents,
transfer agents and registrars out of the Trust Property. The
Trustees may, notwithstanding any other provisions herein, cause
any or all of the Trust Property to be transferred or to be
acquired or held in the name of the custodians or sub-custodians
or in the name of any nominee or nominees or otherwise.
TO APPOINT DISTRIBUTOR
(e) To appoint a distributor or distributors and an agent or
agents or any of them for the sale of the shares of the Trust and
to allow such distributor or distributors and agent or agents a
commission or discount upon the sale of such shares not to exceed
nine percent (9%) of the selling price thereof, and to enter into
such contract or contracts with such distributor or distributors
and agent or agents as the Trustees may in their discretion deem
reasonable and proper. Any such contract for the sale or
distribution of the shares of this Trust may be made with any
Trustee or any beneficiary or any firm or corporation in which
any Trustee or beneficiary is interested, and in the absence of
any such contract the commission hereinabove provided may be paid
to any Trustee or beneficiary or any firm or corporation in which
any Trustee or beneficiary is interested effecting any such sale.
Such distributor shall sell shares for the Trust either as
principal or as agent only against orders therefor and purchase
shares from anyone else only as agent of the Trust and neither
the Trustees nor the distributor nor any of the officers or
directors of the distributor shall take "long" or "short"
positions in selling or purchasing such shares.
TO EMPLOY ACCOUNTANTS, ENGINEERS AND LEGAL COUNSEL
(f) To employ accountants, auditors, engineers and legal
counsel when deemed necessary or proper for the purposes of the
Trust and to pay their compensation and expenses out of the Trust
Property.
TO INCUR OTHER EXPENSES
(g) To incur and pay out of the Trust Property such expenses
and liabilities, not herein otherwise expressly provided, as may
be deemed by the Trustees to be necessary or proper for the
purposes of the Trust.
TO ESTABLISH FISCAL YEAR
(h) To establish a fiscal year and from time to time change
and alter the same.
TO ALLOCATE ASSETS, LIABILITIES, INCOME AND EXPENSES
(i) To the extent necessary or appropriate to give effect to
the preferences and special or relative rights and privileges of
any classes of shares, to allocate assets, liabilities, income
and expenses of the Trust to a particular class of shares or to
apportion the same among two or more classes of shares.
TRUSTEES TO HOLD LEGAL TITLE
Section 7. The Trustees shall hold legal title to and have
absolute and exclusive control and management of all property at
any time belonging to the Trust subject only to the specific
limitations herein contained. The naming of any specific duties
and powers herein shall not be construed as limiting the general
powers conferred upon the Trustees and each of the powers herein
named shall be deemed separate and distinct powers.
SIGNATURES AND ACTION BY TRUSTEES
Section 8. The Trustees may act with or without a meeting
and the action of a majority of the Trustees for the time being
either at a meeting or evidenced by a writing signed by such
majority shall be valid and binding as the action of the
Trustees.
TRUSTEES' COMPENSATION
Section 9. The Trustees as such shall be entitled to
reasonable compensation from the Trust for their services as
Trustees. If there is no management contract in effect, the
Trustees shall be entitled to receive the same compensation
otherwise payable to Managers under the most recent contract
entered into by the Trustees pursuant to Section 4 of this
Article and for such compensation shall provide and pay for such
services as the Trust may require. The Trustees, however, shall
not be obligated to pay for any charges or liabilities herein
authorized to be charged directly against the Trust Property.
Nothing herein contained shall in any way prevent the employment
of any Trustee for legal, accounting, engineering or other
special services and payment for such services out of the Trust
Property.
LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES
Section 10. No person dealing with the Trustees shall be
bound to make any inquiry concerning the validity of any
transaction made or to be made by the Trustees pursuant hereto or
be made liable for the application of money or property paid,
loaned or delivered. Every note, bond, contract, instrument,
certificate, share, or undertaking and every other act or thing
whatsoever executed or done by the Trustees or any of them in
connection with the Trust shall be conclusively deemed to have
been executed or done only in their or his capacity as Trustees
or Trustee, and such Trustees or Trustee shall not be personally
liable thereon. Every note, bond, contract, instrument,
certificate, share or undertaking made or issued by the Trustees
shall recite that the same was executed or made by them as
Trustee or Trustees and not individually and that the obligations
of such instrument are not binding upon any of the Trustees or
beneficiaries individually but binding only upon the Trust
Property, and may contain such further recital as he or they may
deem appropriate, but the omission thereof shall not operate to
bind any Trustee or Trustees individually.
LIABILITY OF TRUSTEES
Section 11. A Trustee shall be liable for his or her own
wilful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of
Trustee, and for nothing else.
Article VI
POWER TO SELL TRUST
Section 1. Without limiting any of the powers or
authorities hereinbefore set forth, the Trustees shall have the
power and authority when authorized by the affirmative vote of
the holders of a majority of the shares of the Trust then
outstanding to sell all of the Trust Property as a whole to any
person, firm, association, trust, or corporation for such price
in cash and securities, or both, of any such persons, firm,
association, trust or corporation, and upon such terms and
conditions as the Trustees may deem proper; and thereupon this
Trust shall terminate.
INDEMNITY
Section 2. The Trust shall indemnify each of its Trustees,
beneficiaries and officers (including persons who serve at its
request as directors, officers or trustees of another
organization in which it has any interest as a shareholder,
creditor or otherwise) against all liabilities and expenses,
including but not limited to amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and counsel
fees, reasonably incurred by him in connection with the defense
or disposition of any action, suit or other proceeding, whether
civil or criminal, before any court or administrative or
legislative body, in which he may be or may have been involved as
a party or otherwise or with which he may be or may have been
threatened, while in office or thereafter, by reason of his being
or having been such a Trustee, beneficiary or officer, except
with respect to any matter as to which he shall have been finally
adjudicated in any such action, suit or other proceeding (a) not
to have acted in good faith in the reasonable belief that his
action was in the best interests of the Trust or (b) to be liable
to the Trust or its beneficiaries by reason of wilful
misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of his office. Expenses,
including counsel fees so incurred by any such Trustee,
beneficiary or officer (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines or
penalties), shall be paid from time to time by the Trust in
advance of the final disposition of any such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
Trustee, beneficiary or officer to repay the amounts so paid to
the Trust if it is ultimately determined that indemnification of
such expenses is not authorized under this Section 2, provided,
however, that either (a) such Trustee, beneficiary or officer
shall have provided appropriate security for such undertaking,
(b) the Trust shall be insured against losses arising out of any
such advance payments or (c) either 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 independent legal counsel in a written opinion, shall
have determined, based upon a review of readily available facts
(as opposed to a full trial type inquiry), that there is reason
to believe that such Trustee, beneficiary or officer will be
found entitled to indemnification under this Article.
As to any matter disposed of (whether by a compromise
payment, pursuant to a consent decree or otherwise) without an
adjudication by a court, or by any other body before which the
proceeding was brought, that such Trustee, beneficiary or officer
either (a) did not act in good faith in the reasonable belief
that his action was in the best interests of the Trust or (b) is
liable to the Trust or its beneficiaries by reason of wilful
misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of his office, indemnification
shall be provided if (a) approved as in the best interests of the
Trust, after notice that it involves such indemnifications by at
least 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) upon a determination, based
upon a review of readily available facts (as opposed to a full
trial type inquiry), that such Trustee, beneficiary or officer
acted in good faith in the reasonable belief that his action was
in the best interests of the Trust and is not liable to the Trust
or its beneficiaries by reasons of wilful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in
the conduct of his office, or (b) there has been obtained an
opinion in writing of independent legal counsel, based upon a
review of readily available facts (as opposed to a full trial
type inquiry), to the effect that such Trustee, beneficiary or
officer appears to have acted in good faith in the reasonable
belief that his action was in the best interests of the Trust and
that such indemnification would not protect such Trustee,
beneficiary or officer against any liability to the Trust or its
beneficiaries to which he would otherwise be subject by reason of
wilful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his office.
Any approval pursuant to this paragraph shall not prevent the
recovery from any Trustee, beneficiary or officer of any amount
paid to him in accordance with this paragraph as indemnification
if such Trustee, beneficiary or officer is subsequently
adjudicated by a court of competent jurisdiction not to have
acted in good faith in the reasonable belief that his action was
in the best interests of the Trust or to have been liable to the
Trust or its beneficiaries by reason of wilful misfeasance, bad
faith, gross negligence or reckless disregard of the duties
involved in the conduct of his office.
The right of indemnification hereby provided shall not be
exclusive of or affect any other rights to which any Trustee,
beneficiary or officer may be entitled. As used in this Section,
the terms "Trustee", "beneficiary" and "officer" include their
respective heirs, executors and administrators and a
"disinterested Trustee" is a Trustee who is not an "interested
person" of the Trust as defined in Section 2(a)(19) of the
Investment Company Act of 1940, as amended (or who has been
exempted from being an "interested person" by any rule,
regulation or order of the Securities and Exchange Commission)
and 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 has been pending. Nothing contained
in this section shall affect any rights to indemnification to
which personnel of the Trust other than Trustees, beneficiaries
and officers, and other persons may be entitled by contract or
otherwise under law, nor the power of the Trust to purchase and
maintain liability insurance on behalf of any such person.
TERMINATION OF TRUST
Section 3. This Trust shall terminate in any event upon the
expiration of twenty-one (21) years after the death of the last
survivor of the six original Trustees named hereunder and of
their children living as of October 1, 1957, provided, however,
that the Trustees shall have the power and authority to terminate
this Trust at an earlier date by an instrument in writing setting
forth such termination and by written notice thereof mailed,
postage prepaid, to the beneficiaries at their addresses as the
same appear upon the records of the Trustees.
Upon the termination of this Trust either by expiration or
otherwise the Trustees shall make provision for the payment of
the expenses and liabilities of the Trust and of the Trustees and
upon the surrender of the certificates representing the shares of
this Trust then outstanding distribute the remaining assets, or
sell and dispose of all or any part thereof and distribute the
net proceeds thereof in cash and securities, or both, among the
holders of such shares in proportion to their holdings, except to
the extent otherwise required or permitted by the preferences and
special or relative rights and privileges of any classes of
shares of the Trust, provided that any distribution to the
beneficiaries of a particular class of shares shall be made to
such beneficiaries pro rata in proportion to the number of shares
of such class held by each of them. Thereupon the Trustees shall
be discharged from all further obligation hereunder. The
distributive share of any beneficiary not so surrendering his
certificate or certificates may be deposited by the Trustees with
any bank or trust company having an office in Boston,
Massachusetts, with authority to such depositary to make delivery
thereof to such beneficiary upon surrender to the depositary for
the account of the Trustees of such certificate or certificates
as above provided, and such deposit shall be deemed to be full
payment of such distributive share.
AMENDMENT OF TRUST
Section 4. This Declaration of Trust may be altered or
amended at any time by an instrument in writing signed by all of
the then Trustees when authorized so to do by vote of the holders
of a majority of the shares then outstanding, except that an
alteration or amendment which in the determination of the
Trustees shall affect the holders of one or more classes of
shares but not the holders of all outstanding classes shall be
authorized by vote of the beneficiaries holding a majority of the
shares entitled to vote of each class affected and no vote of
beneficiaries of a class not affected shall be required. Said
instrument in writing to certify that such authority or assent
has been obtained and to state when such alteration or amendment
shall become effective.
In the event that it becomes necessary under the provisions
of Article I, Section 1, to change the name of the Trust, the
Trustees, until action to that end is taken by the beneficiaries,
may without any further authorization from the beneficiaries
amend this Declaration of Trust by instrument in writing changing
the name of this Trust to such other name as they may determine.
Notice of such change of name shall be mailed forthwith to the
beneficiaries at their addresses as the same appear upon the
records of the Trustees.
A copy of any alteration or amendment of this Declaration of
Trust shall be filed with the Commissioner of Corporations and
Taxation of The Commonwealth of Massachusetts within thirty (30)
days after its execution or effective date.
INITIAL TRUSTEES
Section 5. The initial Trustees of the Fund were Xxxxxxx X.
Xxxxx, Xxxxxx Xxxxxx, Jr., Xxxxxxxx Xxxx, Xxxxxx X. Xxxx, Xxxxx
X. Xxxxxx and Xxxxxxx X. Xxxxx. Said Trustees and their
successors are referred to herein as the "Trustees".
This instrument shall be effective only upon filing with the
Secretary of State of The Commonwealth of Massachusetts and may
be executed in several counterparts, each of which shall be
deemed an original, but all taken together shall constitute one
instrument.
IN WITNESS WHEREOF, the undersigned, being all of the
Trustees of the Trust, have hereunto set their hands and seals in
the City of Boston, Massachusetts for themselves and their
assigns, as of the day and year first above written and do hereby
certify that this Amended and Restated Agreement and Declaration
of Trust has been authorized by the holders of at least a
majority of the outstanding shares of the Trust.
/s/ Xxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxxxxxx
------------------------ ---------------------------
Xxxxxx Xxxxxx Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxx
------------------------ ---------------------------
Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Pounds
------------------------ ---------------------------
Xxxx X. Xxxxx Xxxxxxx X. Pounds
/s/ Xxxx X. Xxxx /s/ Xxxxxx Xxxxxx, III
------------------------ ---------------------------
Xxxx X. Xxxx Xxxxxx Xxxxxx, III
/s/ Xxxxxx X. Xxxxxxx /s/ Xxx Xxxxxxx
------------------------ ---------------------------
Xxxxxx X. Xxxxxxx Xxx Xxxxxxx
/s/ Xxxxxxxxx X. Xxxxxx /s/ A.J.C. Xxxxx
------------------------ ---------------------------
Xxxxxxxxx X. Xxxxxx A.J.C. Xxxxx
/s/ Xxxxxxxx X. Xxxxxx /s/ W. Xxxxxxxx Xxxxxxxxx
------------------------ ---------------------------
Xxxxxxxx X. Xxxxxx W. Xxxxxxxx Xxxxxxxxx
THE COMMONWEALTH OF
MASSACHUSETTS
Suffolk, ss. Boston, October 3, 1996
Then personally appeared each of the above-named Trustees of
The Xxxxxx Fund for Growth and Income, being all of the Trustees
of said Fund, and acknowledged the foregoing instrument to be
their free act and deed, before me,
/s/ Xxxx X. XxXxxxxx
-----------------------------
Xxxx X. XxXxxxxx
Notary Public
My commission expires: 10/25/96
The address of the Trust is Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000.
