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Exhibit (a)(1)
THE EXPLORER INSTITUTIONAL TRUST
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made at Oakbrook Terrace, Illinois,
this 30th day of September, 1994, by the Trustees hereunder, and by the holders
of shares of beneficial interest to be issued hereunder as hereinafter provided.
WHEREAS, this Trust has been formed to carry on business as set forth
more particularly hereinafter;
WHEREAS, this Trust is authorized to issue its shares of beneficial
interest in separate series, each separate series to be a sub-trust hereunder,
all in accordance with the provisions hereinafter set forth; and
WHEREAS, the Trustees have agreed to manage all property coming into
their hands as Trustees of a Massachusetts business trust in accordance with the
provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold all
cash, securities, and other assets 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 benefit of the holders from time to
time of shares of beneficial interest in this Trust or sub-trusts created
hereunder as hereinafter set forth.
ARTICLE I
The Trust
1.1 Name. This Trust shall be known as the "The Explorer Institutional
Trust" and the Trustees shall conduct the business of the Trust under that name
or any other name or names as they may from time to time determine.
1.2. Definitions. As used in this Declaration, the following terms shall
have the following meanings:
The terms "Affiliated Person", "Assignment", "Commission", "Interested
Person", "Majority Shareholder Vote", "Person" and "Principal Underwriter" shall
have the meanings given them in the 1940 Act.
"Declaration" shall mean this Declaration of Trust as amended from time
to time.
"Fundamental Policies" shall mean the investment policies and
restrictions as set forth from time to time in the Prospectus of the Trust or
any Series and designated as fundamental policies therein. "Person" shall mean
and include individuals, corporations, partnerships, trusts, associations, joint
ventures and other entities, whether or not all entities, and governments and
agencies and politic subdivisions thereof.
"Prospectus shall mean the currently effective Prospectus of the Trust
or of any Series under the Securities Act of 1933, as amended.
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"Series" shall mean the separate sub-trusts that may be established and
designated as series pursuant to Section 6.2 or any one of such sub-trusts.
"Shareholders" shall mean as of any particular time the holders of
record of outstanding Shares at such time.
"Shares" shall mean the equal proportionate transferable units of
interest into which the beneficial interest in any Series of the Trust shall be
divided from time to time and includes fractions of Shares as well as whole
Shares. All references to Shares shall be deemed to be Shares of any or all
Series as the context may require.
"Trust" shall mean the Trust established by this Declaration, as amended
from time to time, inclusive of each and every sub-trust established as a Series
hereunder.
"Trustees" shall mean the signatories to this Declaration, so long as
they shall continue in office in accordance with the terms hereof, and all other
persons who at the time in question have been duly elected or appointed and have
qualified as trustees in accordance with the provisions hereof and are then in
office.
"Trust Property" shall mean as of any particular time any and all
property, real or personal, tangible or intangible, which at such time is owned
or held by or for the account of the Trust, any Series thereof or the Trustees
in such capacity.
The "1940 Act" refers to the Investment Company Act of 1940 and the
rules and regulations promulgated thereunder, as amended from time to time.
ARTICLE 11
Trustees
2.1. Number and Qualification. The number of Trustees shall be given
from time to time by written instrument signed by a majority of the Trustees
then in office, provided, however, that the number of Trustees shall in no event
be less than three or more than eleven. No reduction in the number of Trustees
shall have the effect of removing any Trustee from office prior to the
expiration of his term. A Trustee shall be an individual at least 21 years of
age who is not under legal disability. Trustees need not own Shares and may
succeed themselves in office.
2.2 Term and Election. Except for the Trustees named herein or appointed
to fill vacancies pursuant to Section 2.4 hereof, the Trustees shall be elected
by written ballot at the initial meeting of Shareholders. Subject to Section 2.4
hereof, each Trustee named herein, or elected or appointed pursuant to the terms
hereof shall hold office until his successor has been elected at such meetings
and has qualified to serve as Trustee. Election of Trustees shall be by the
affirmative vote of the holders of a plurality of the Shares present in person
or by proxy. Each individual elected or appointed as a Trustee of the Trust
shall by such election or appointment also be elected or appointed, as the case
may be as a Trustee of each Series of the Trust then in existence. The election
or appointment of any Trustee (other than an individual who was serving as a
Trustee immediately prior thereto) shall not become effective unless and until
such person shall have in writing accepted his election and agreed to be bound
by the terms of this Declaration.
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2.3 Resignation and Removal. Any Trustee may resign his trust (without
need for prior or subsequent accounting except in the event of removal for
cause) by an instrument in writing signed by him and delivered or mailed to the
Chairman, if any, the President or the Secretary 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 minimum number required
by Section 2.1 hereof) with cause, by the action of two-thirds of the remaining
Trustees or the holders of two-thirds of the Shares. 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.
2.4 Vacancies. The term of office of a Trustee shall terminate and a
vacancy shall occur in the event of the death, resignation, bankruptcy,
adjudicated incompetence or other incapacity to perform the duties of the
office, or removal, of a Trustee. No such vacancy shall operate to annul this
Declaration or to revoke any existing agency created pursuant to the terms of
this Declaration. Any vacancy created by an increase in Trustees may be filled
by the appointment of an individual having the qualifications described in this
Article made by a written instrument signed by a majority of the Trustees then
in office or by election by the Shareholders. However, if after filling the
vacancy, more than one-third of the Trustees have not been elected by the
Shareholders of the Trust, such appointment is subject to ratification by the
Shareholders of the Trust. Whenever a vacancy in the number of Trustees shall
occur, until such vacancy is filled as provided herein, 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 this
Declaration.
2.5. Meetings. Meetings of the Trustees shall be held from time to time
upon the call of the Chairman, if any, the President, the Secretary or any two
Trustees. Regular meetings of the Trustees may be held without call or notice at
a time and place fixed by the By-Laws or by resolution of the Trustees. Notice
of any other meeting shall be mailed not less than 4 hours before the meeting or
otherwise actually delivered orally or in writing not less than 24 hours before
the meeting, but may be waived in writing by any Trustee either before or after
such meeting. The attendance of a Trustee at a meeting shall constitute a waiver
of notice of such meeting except where a Trustee attends a meeting for the
express purpose of objecting to the transaction of any business on the ground
that the meeting has not been lawfully called or convened. The Trustees may act
with or without a meeting. a quorum for all meetings of the Trustees shall be a
majority of the Trustees. Unless provided otherwise in this Declaration of
Trust, any action of The Trustees May be taken at a meeting by vote of a
majority of the Trustees present (a quorum being present) or without meeting by
written consent of a majority of the Trustees.
Any committee of the Trustees, including an executive committee, if any,
may act with or without a meeting. A quorum for all meetings of any such
committee shall be a majority of the members thereof. Unless provided otherwise
in this Declaration, any action of any such committee may be taken at a meeting
by vote of a majority of the members present (a quorum being present) or without
a meeting by written consent of a majority of the members.
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With respect to actions of the Trustees and any committee of the
Trustees, Trustees who are Interested Persons in any action to be taken may be
counted for quorum purposes under this Section and shall be entitled to vote to
the extent not prohibited by the 1940 Act.
All or any one or more Trustees may participate in a meeting of the
Trustees or any committee thereof by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other; participation in a meeting pursuant to any such
communications systems shall constitute presence in person at such meeting.
2.6. Officers. The Trustees shall annually elect a President, a
Secretary and a Treasurer and may elect a Chairman. The Trustees may elect or
appoint or may authorize the Chairman, if any, or President to appoint such
other officers or agents with such powers as the Trustees may deem to be
advisable. A Chairman shall, and the President, Secretary and Treasurer may, but
need not, be a Trustee.
ARTICLE III
Powers of Trustees
3.1 General. The Trustees shall have exclusive and absolute control over
the Trust Property and over the business of the Trust or any Series thereof 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 this Declaration. The Trustees may perform such acts as in their
sole discretion are proper for conducting the business of the Trust or any
Series thereof. 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.
3.2. Investments. The Trustees shall have power, subject to the
fundamental Policies in effect from time to time with respect to the Trust or a
particular sub-trust, to:
(a) manage, conduct, operate and carry on the business of a investment
company;
(b) subscribe for, invest in, reinvest in, purchase or otherwise
acquire, hold, pledge, sell, assign, transfer, exchange, distribute or
otherwise deal in or dispose of any and all sorts of property, tangible
or intangible, including but not limited to securities of any type
whatsoever, whether equity or non-equity, of any issuer, evidences of
indebtedness of any person and any other rights, interests, instruments
or property of any sort and to exercise any and all rights, powers and
privileges of ownership or interest in respect of any and all such
investment 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 to exercise any of said rights, powers
and privileges in respect of any of said investments. The Trustees shall
not be limited by any law limiting the investments which may be made by
fiduciaries.
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 any Series thereof, or in
the name of any other Person as nominee, custodian or pledgee, on such terms as
the Trustees may
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determine, provided that the interest of the Trust or any Series thereof 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
his due election and qualification. Upon the ceasing of any person to be a
Trustee for any reason, such person 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.
3.4. Issuance and Repurchase of Shares. 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, including shares
in fractional denominations, and, subject to the more detailed provisions set
forth in Articles VIII and IX, to apply to any such repurchase, redemption,
retirement, cancellation or acquisition of Shares any funds or property of the
applicable Series 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.
3.5. Borrowing Money. Subject to the Fundamental Policies in effect from
time to time with respect to the Trust or a particular Series, the Trustees
shall have the power to borrow money or otherwise obtain credit and to secure
the same by mortgaging, pledging or otherwise subjecting a security the assets
of the Trust of any Series thereof, including the lending of portfolio of
securities, and to endorse, guarantee, or undertake the performance of any
obligation, contract or engagement of any other person, firm, association or
corporation; provided, however, that the assets of any particular Series shall
not be used as security for a credit extended to any other Series.
3.6. Delegation Committees. The Trustees shall have power, consistent
with their continuing exclusive authority over the management of the Trust and
the Trust Property, to delegate from time to time to such 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 Trust or the names of the
Trustees or otherwise as the Trustees may deem expedient, to the same extent as
such delegation is permitted to directors of a Massachusetts business
corporation and is permitted by the 1940 Act.
3.7. Collection and Payment. The Trustees shall have power to collect
all property due to the Trust or any Series thereof; to pay claims, including
taxes, against the Trust Property, the Trust or any Series thereof, the Trustees
or any officer, employee or agent of Trust; to prosecute, defend, compromise or
abandon any claims relating to the Trust Property, the Trust or any Series
thereof, or the Trustees or any officer, employee or agent of the Trust; to
foreclose any security interest securing any obligations, by virtue of which any
property is owed to the Trust or any Series thereof; and to enter into releases,
agreements and other instruments. Except to the extent required for a
Massachusetts business corporation, the Shareholders shall have no power to vote
as to whether or not a court action, legal proceeding or claim should or should
not be brought or maintained derivatively or as a class action on behalf the
Trust or the Shareholders.
3.8. Expenses. The Trustees shall have power to incur and pay out the
assets or income of the Trust or the appropriate Series thereof, any expenses
which in the opinion of the Trustees are necessary or incidental to carry out
any of the purposes of this Declaration, and the business of the Trust, and to
pay reasonable compensation from the funds of the Trust to themselves as
Trustees. The
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Trustees shall fix the compensation of all officers, employees and Trustees. The
Trustees may pay themselves such compensation or special services, including
legal, underwriting, syndicating and brokerage services, as they in good faith
may deem reasonable and reimbursement for expenses reasonably incurred by
themselves on behalf of the Trust. The Trustees shall have the power, as
frequently as they may determine, to cause each Shareholder, or each Shareholder
on any particular Series, to pay directly, in advance or arrears, for charges to
the custodian or transfer, Shareholder servicing or similar agent of such
Series, a pro rata amount as defined from time to time by the Trustees, by
setting off such charges due from such Shareholder from declared but unpaid
dividends owed such Shareholder and/or by reducing the number of shares in the
account of such Shareholder by that number of full and/or fractional Shares
which represents the outstanding amount of such charges due from such
Shareholder.
3.9. By-Laws. The Trustees may adopt and from time to time amend or
repeal By-Laws for the conduct of the business of the Trust.
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 or any Series thereof; (b) enter into
joint ventures, partnerships and any other combinations or associations; (c)
purchase, and pay for out of Trust Property, insurance policies insuring the
Shareholders, Trustees, officers, employees, agents, investment advisors,
distributors, selected dealers or independent contractors of the Trust or any
Series thereof 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 such capacity,
whether or not constituting negligence, or whether or not the Trust would have
the power to indemnify such Person against such liability; (d) establish
pension, profit-sharing, share purchase, and other retirement, incentive and
benefit plans for any Trustees, officers, employees and agents of the Trust; (e)
make donations, irrespective of benefit to the Trust, for charitable, religious,
educational, scientific, civic or similar purposes; (f) to the extent permitted
by law, indemnify any Person with whom the Trust or any Series thereof has
dealings, including any advisor, administrator, manager, distributor or selected
dealer, 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 in 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.
3.11. Further Powers. The Trustees shall have power to conduct the
business of the Trust or any Series thereof 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 instrumental ties
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 or any Series thereof
although such things at not herein specifically mentioned. Any determination as
to what is in the interests of the Trust or any Series thereof made by the
Trustees in good faith shall be conclusive. In construing the provisions of this
Declaration, the presumption shall be in favor of a grant of power of the
Trustees. The Trustees will nut be required to obtain any court order to deal
with the Trust Property.
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ARTICLE IV
Advisory, Management and Distribution Arrangements
4.1. Advisory and Management Arrangements. Subject to a Majority
shareholder vote of the applicable Series, the Trustees may in their discretion
from time to time enter into advisory, administration, or management contracts
whereby the other party to such contract shall undertake to furnish the Trustees
such advisory, administrative and management services, with respect to a Series
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 this Declaration of Trust, the Trustees may
authorize any advisor, administrator or manager (subject to such general or
specific instructions as the Trustees may from time to time adopt) to effect
investment transactions with respect to the assets of any Series on behalf of
the Trustees to the full extent of the power of the Trustees to effect such
transactions or may authorize any officer, employee or Trustee to effect such
transactions pursuant to recommendations of any such advisor administrator or
manager (and all without further action by the Trustees). Any such investment
transaction shall be deemed to have been authorized by all of the Trustees.
4.2. Distribution Arrangements. Subject to compliance with the 1940 Act,
the Trustees may adopt and amend or repeal from time to time and implement a
plan of distribution pursuant to Rule l2b-1 of the 1940 Act which plan will
provide for the payment of specified marketing, distribution and shareholder
relations expenses of the Trust and any or all Series and their agents and the
agents of such agents. The Trustees may in their discretion from time to time
enter into one or more contracts, providing for the sale of the Shares of the
Trust or any Series of the Trust to net the Trust not less than the par value
per Share, 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
provisions of this Article IV or the By-Laws; and such contract may also provide
for the repurchase or sale of Shares 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 and brokers and servicing
and similar agreements with persons who are not registered securities dealers to
further the purpose of the distribution or repurchase of the Shares and any plan
of distribution adopted by the Trustees.
4.3. Parties to Contract. Any contract of the character described in
Section 4.1 and 4.2 of this Article IV or in Article VII hereof may be entered
into with any Person, although one or more of the Trustees, officers or
employees 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
reasonable and fair and not inconsistent with the provisions of this Article IV
or the By-Laws. The same Person may be the other party to contracts entered into
pursuant to Section 4.1 and 4.2 above or Article VII, 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 4.3.
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ARTICLE V
Limitations of Liability of
Shareholders, Trustees and Others
5.1. No Personal Liability of Shareholders, Trustees, etc. No
shareholder shall be subject to any personal liability whatsoever to any Person
in connection with Trust Property or the acts, obligations or affairs of the
Trust or any Series thereof. 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 or any Series thereof, save only that arising from his bad faith,
willful misfeasance, gross negligence or reckless disregard of his duty to such
Person; and all such Persons shall look solely to the Trust Property belonging
to the applicable Series for satisfaction of claims of any nature arising in
connection with the affairs of the Trust or any Series thereof. In 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 claims
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. The rights accruing to Shareholder hereunder shall
not prevent the Trustees from requiring each Shareholder to pay his pro rata
portion of the applicable Series' custodian, transfer, shareholder servicing or
similar agent as permitted by Section 3.8 hereof.
5.2. Non-Liability of Trustees, etc. No Trustee, officer, employee or
agent of the Trust shall be liable to the Trust, any Series, 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.
5.3. Mandatory Indemnification. The Trust shall indemnify each of itsfp
Trustees, officers, employees, and agents (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 amounts paid in satisfaction of judgments,
in compromise, as fines and penalties, and as 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 investigative body, in which he may be involved or with which he may be
threatened, while in office or thereafter, by reason of his being or having been
such a Trustee, officer, employee or agent, except with respect to any matter as
to which he shall have been adjudicated not to have acted in good faith in the
reasonable belief that his action was in the best interest of the Trust or the
Series in question and furthermore, in the case of any criminal proceeding, he
had no reasonable cause to believe that the conduct was unlawful, provided that
(1) no indemnitee shall be indemnified hereunder against any liability to the
Trust or any Series or its shareholders by reason of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of his position, (2) as to any matter disposed of by settlement or a
compromise payment by such indemnitee, pursuant to a consent decree or
otherwise, no indemnification either for said
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Payment or for any other expenses shall be provided unless there has been a
determination that such compromise is in the best interests of the Trust or the
Series involved and that such indemnitee appears to have acted in good faith in
the reasonable belief that his action was in the best interests of the Trust or
the Series involved and did not engage in willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his
position and (3) with respect to any action, suit or other proceeding
voluntarily prosecuted by any indemnitee as plaintiff, indemnification shall be
mandatory only if the prosecution of such action, suit or other proceeding by
such indemnitee was authorized by a majority of the Trustee. All determinations
that the applicable standards of conduct have been met for indemnification
hereunder, or that advance payments in connection with the expense of defending
any action shall be authorized, shall be made (a) by a final decision on the
merits by a court or other body before whom the proceeding was brought that such
indemnitee is not liable by reason of disabling conduct or, (b) in the absence
of such a decision, by (i) a majority vote of a quorum consisting of Trustees
who are neither "interested persons" of the Trust (as defined in Section
2(a)(19) of the 0000 Xxx) nor parties to the proceeding ("disinterested
non-party Trustees"), or (ii) if such a quorum is not obtainable or even, if
obtainable, if a majority vote of such quorum so directs, independent legal
counsel in a written opinion. All determinations that advance payments in
connection with the expense of defending any proceeding shall be authorized and
shall be made in accordance with clause (b) above.
The rights accruing to any indemnitee under these provisions shall not
exclude any other right to which he may be lawfully entitled. The Trustee may
make advance payments in connection with the expense of defending any action
with respect to which indemnification might be sought under this Section,
provided that the Trustees shall receive a written affirmation of the
indemnified indemnitee's good faith belief that the standard of conduct
necessary for indemnification has been met and a written undertaking to
reimburse the Trust or the appropriate Series in the event it is subsequently
determined that he is not entitled to such indemnification and provided further
that the Trustees determine that the facts then known to them would not preclude
indemnification. In addition, at least one of the following conditions must be
met:
(a) the indemnitee shall provide a security for his undertaking,
(b) the Trust or applicable Series shall be insured against losses
arising by reason of any lawful advances; or
(c) a majority of a quorum of the disinterested non-party, Trustees or
an independent legal counsel in a written opinion, shall determine,
based on a review of readily available facts (as opposed to a full trial
type inquiry), that there is reason to believe that the indemnitee
ultimately will be found entitled to indemnification.
5.4. No Bond Required of Trustees. No Trustee shall, as such, be
obligated to give any bond or other security for the performance of any of his
duties hereunder
5.5 No Duty of Investigation: Notice in Trust Instruments, etc. No
purchaser, lender, transfer agent or other person dealing with the Trustees or
with 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,
undertaking, instrument, certificate, Share, other security of the Trust or any
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Series, and every other act or thing whatsoever executed in connection with the
Trust or any Series shall be conclusively taken to have been executed or done by
the executors thereof only in their capacity as Trustees under this Declaration
or in their capacity as officers, employees or agents of the Trust. Every
written obligation, contract, undertaking, instrument, certificate, Share, other
security of the Trust or any Series made or issued by the Trustees or by any
officers, employees or agents of the Trust, in their capacity as such, shall
contain an appropriate recital to the effect that the Shareholders, Trustees,
officers, employees or agents of the Trust shall not personally be bound by or
liable thereunder, nor shall resort be had to their private property for the
satisfaction of any obligation or claim thereunder, and appropriate references
shall be made therein to this Declaration, and may contain any further recital
which they may deem appropriate, but the omission of such recital shall not
operate to impose personal liability on any of the Trustees, Shareholders,
officers, employees or agents of the Trust. The Trustees may 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 or other liability, and such other insurance as the Trustees in
their sole judgment shall deem advisable.
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 any advisor, administrator, manager,
distributor, selected dealer, accountant, appraiser or other expert or
consultant 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.
ARTICLE VI
Shares of Beneficial Interest
6.1. Beneficial Interest. The interest of the beneficiaries hereunder
shall be divided into an unlimited transferable shares of beneficial interest
without par value. All Shares issued in accordance with the terms hereof,
including, without limitation, Shares issued in connection with a dividend in
Shares or a split of Shares, shall be fully paid and, except as provided in the
last sentence of Section 3.8, nonassessable when, the consideration (if any)
therefor shall have been received by the Trust.
6.2. Series Designation. The Trustees, in their discretion from time to
time, may authorize the division of Shares into two or more Series, each Series
relating to a separate portfolio of investments and each of which Series shall
be a separate and distinct sub-trust of the Trust. Each Series so established
hereunder shall be deemed to be a separate Trust under the provisions of
Massachusetts law. The Trustees shall have exclusive power without the
requirement of Shareholder approval to establish and designate such separate and
distinct Series and to fix and determine the relative rights and preferences as
between the different Series. The Trustees shall have exclusive power to add to,
delete, replace or otherwise modify any provisions of this Declaration relating
to any Shares if prior to adopting any such change the Trustees shall have
determined that such change is consistent with the fair and equitable treatment
of the affected Shareholders and that Shareholder approval is not required by
this Declaration or applicable law or the Trustees shall have obtained
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Shareholder approval for such change. All references to Shares in this
Declaration shall be deemed to be Shares of any or all Series as the context may
require.
If the Trustees shall create sub-trusts and divide the Shares into one
or more Series, the following provisions shall be applicable:
(a) The number of Shares of each Series 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 into one or
more Series that may be established are designated from time to time.
The Trustees may hold as treasury Shares (of the same or some other
Series), reissue for such consideration and on such terms as they may
determine, or cancel any shares of any Series reacquired by the Trust at
their discretion from time to time.
(b) The power of the Trustees to invest and reinvest the Trust Property
of each Series that may be established shall be governed by Section 3.2
of this Declaration.
(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 derive from the sale,
exchange or liquidation of such assets, and any funds or payment derived
from any reinvestment of such proceeds in whatever form the same may be,
shall be held by the Trustees and Trust for the benefit of the
Shareholders of such Series and, subject to the rights of creditors of
such Series only, shall irrevocably belong to that Series for all
purposes, 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 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 they,
in their sole discretion, deem fair and equitable, and anything so
allocated to a Series shall belong to such Series. Each such allocation
by the Trustees shall be conclusive and binding upon the Shareholders of
all Series for all purposes.
(d) The assets belonging to each particular Series shall be charged with the
liabilities of the Trust in respect of that Series and all expenses, costs,
charges and reserves attributable to that Series 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 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. Each allocation of
liabilities, expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the Shareholders of all Series for all purposes. The
Trustees 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. Under no circumstances shall the assets allocated
or belonging to a particular Series be charged with any liabilities attributable
to another Series. Any creditor may look only to the assets of the particular
Series with respect to which such person is a creditor for satisfaction of such
creditor's debt.
(e) The power of the Trustees to pay dividends and make distributions with
respect to any one or more Series shall be governed by Section 9.2 of this
Trust. Dividends and distributions on Shares of a
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particular Series may be paid with such frequency as the Trustees may determine,
which may be daily or otherwise, pursuant to a standing resolution or
resolutions adopted only once or with such frequency as the Trustees may
determine, to the holders of Shares of that Series, 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. All dividends and distributions on Shares of a
particular Series shall be distributed pro rata to the holders of that Series in
proportion to the number of Shares of that Series held by such holders at the
date and time of record established for the payment of such dividends or
distributions. The establishment and designation of any Series of Shares shall
be effective upon the execution by a majority of the then Trustees of an
instrument setting forth the establishment and designation of such Series. Such
instrument shall also set forth any rights and preferences of such Series which
are in addition to the rights and preferences of Shares set forth in this
Declaration. Any time that there are no Shares outstanding of any particular
Series previously established and designated, the Trustees may by an instrument
executed by a majority of their number abolish that Series and the establishment
and designation thereof. Each instrument referred to in this paragraph shall
have the status of an amendment to this Declaration.
6.3. Rights of Shareholders. The Shares shall be personal property
giving only the rights in this Declaration specifically set forth. 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 beneficial interest
conferred by their Shares with respect to a particular Series, 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 share or assume
any losses of the Trust or, subject to the right of the Trustees to charge
certain expenses directly to Shareholders, as provided in the last sentence of
Section 3.8, suffer an assessment of any kind by virtue of their ownership of
Shares. The Shares shall not entitle the holder to preference, preemptive,
appraisal, conversion or exchange rights (except for rights of appraisal
specified in Section 11.4). No Shares shall have any priority or preference over
any other Share of the same Series with respect to dividends or distributions or
upon termination of the Trust or of such Series.
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 this Declaration shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
6.5. Issuance of Shares. The Trustees, in their discretion, may from
time to time without vote of the Shareholders issue Shares with respect to any
series that may have been established pursuant to Section 6.2, in addition to
the then issued and outstanding Shares and Shares held in the treasury, to such
party or parties and for such amount not less than par value and type of
consideration, including cash or property, at such time or times, and on such
terms as the Trustees may determine, 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. The Trustees may from time to time
divide or combine the Shares of any Series into a greater or lesser number
without thereby changing the proportionate beneficial interest in such Series of
the Trust. Issuances and redemptions of Shares may be made in whole Shares
and/or 1/1,000ths of a Share or multiples thereof.
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6.6. Register of Shares. A register shall be kept at the Trust or any
transfer agent duly appointed by the Trustees under the direction of the
Trustees 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. Separate registers shall be established and maintained for each Series
of the Trust. Each such registers shall be conclusive as to who are the holders
of the Shares of the applicable Series 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 provided,
until he has given his address to a transfer agent or such other officer or
agent of the Trustees as shall keep the 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.
6.7. Transfer Agent and Registrar. The Trustees shall have power to
employ a transfer agent or transfer agents, and a registrar or registrars, with
respect to the Shares of the various Series. The transfer agent or transfer
agents may keep the applicable register and record therein the original issues
and transfers, if any, of the said shares of the applicable Series. Any such
transfer agent and registrars shall perform the duties usually performed by
transfer agents and registrars of certificates of stock in a corporation, as
modified by the Trustees.
6.8. Transfer of Shares. Shares shall be transferable on the records of
the Trust only by the record holder thereof or by his agent thereto duly
authorized in writing, upon delivery to the Trustees or a transfer agent of the
Trust 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 applicable 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
hereof 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 applicable register of Shares as the holder of
such Shares upon production of the proper evidence thereof to the Trustees or a
transfer agent of the Trust, but until such record is made, the shareholder of
record shall be deemed to be the holder of such for all purposes hereof, 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.
6.9. Notices. Any and all notices to which any Shareholder hereunder 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 applicable register of the Trust.
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ARTICLE VII
Custodians
7.1. Appointment and Duties. The Trustee shall at all times employ a
custodian or custodians, meeting the qualifications for custodians for portfolio
securities of investment companies contained in the 1940 Act, as custodian with
respect to each Series of the Trust. Any custodian, acting with respect to one
or more Series, shall have authority as agent of the Trust or the Series with
respect to which it is acting, but subject to such restrictions, limitations and
other requirements, if any, as may be contained in the By-Laws of the Trust and
the 1940 Act:
(1) to hold the securities owned by the Trust or the Series and deliver
the same upon written order;
(2) to receive and receipt for any moneys due to the Trust or the Series
and deposit the same in its own banking department (if a bank) or
elsewhere as the Trustees may direct;
(3) to disburse such funds upon orders or vouchers;
(4) if authorized by the Trustees, to keep the books and accounts of the
Trust or the Series and furnish clerical and accounting services;
(5) if authorized to do so by the Trustees, to compute the net income or
net asset value of the Trust or the Series; and
(6) if authorized to do so by the Trustees, to perform any other
services permitted by applicable law to be performed by custodians;
all upon such basis of compensation as may be agreed upon between the Trustees
and the custodian. If so directed by a Majority Shareholder Vote of the Series
with respect to which the custodian is acting, the custodian shall deliver and
pay over all property of the Trust held by it as specified in such vote.
The Trustees may also authorize each custodian to employ one or more
sub-custodians from time to time to perform such of the acts and services of the
custodian and upon such terms and conditions, as may be agreed upon between the
custodian and such sub-custodian and approved by the Trustees, provided that in
every case such sub-custodian shall meet the qualifications for custodians
contained in the 1940 Act.
7.2. Central Certificate System. Subject to such rules, regulations and
order as the commission may adopt, the Trustees may direct the custodian to
deposit all or any part of the securities owned by the Trust or the Series in a
system for the central handling of securities established by a national
securities exchange or a national securities association registered with the
Commission under the Securities Exchange Act of 1934, or such other person as
may be permitted by the Commission, or otherwise in accordance with the 1940
Act, pursuant to which system all securities of any particular class or series
of any issuer deposited within, the system are treated as tangible and may be
transferred or pledged by bookkeeping entry without physical delivery of such
securities, provided that all such deposits shall be subject to withdrawal only
upon the order of the trust.
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ARTICLE VIII
Redemption
8.1. Redemptions. All outstanding Shares of any Series of the Trust may
be redeemed at the option of the holders thereof, upon and subject to the terms
and conditions provided in this Article VIII. The Trust shall, upon application
by any Shareholder or pursuant to authorization from any Shareholder of a
particular Series, redeem or repurchase from such Shareholder outstanding Shares
of such Series for any amount per share determined by the application of a
formula adopted for such purpose by the Trustees with respect to such Series
(which formula shall be consistent with the 1940 Act): provided that (a) such
amount per Share shall not exceed the cash equivalent of the proportionate
interest of each Share in the assets of the Series of the Trust at the time of
the repurchase or redemption and (b) if so authorized by the Trustees, the Trust
may, at any time and from time to time, charge fees for effecting such
redemption, at such rates as the Trustees may establish, as and to the extent
permitted under the 1940 Act, and may, at any time and from time to time,
pursuant to such Act, suspend such right of redemption. The procedures for
effecting redemption shall be as set forth in the Prospectus with respect to the
applicable Series from time to time.
8.2. Disclosure of Holding. 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 of 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 taxing
authority.
8.3. Redemptions of Small Accounts. The Trustees shall have the power to
redeem Shares of any Series at a redemption price determined in accordance with
Section 8.1, (i) if at any time the total investment in such account does not
have a value of at least such minimum amount as may be specified in the
Prospectus for such Series from time to time (ii) as provided by Section 3.8,
or (iii) to the extent a Shareholder owns Shares equal to or in excess of a
percentage of Shares of the Trust or any Series determined from time to time by
the Trustees and specified in the applicable Prospectus. In the event the
Trustees determine to exercise their power to redeem Shares provided in this
Section 8.3(i), the Shareholder shall be notified that the value of his account
is less than the applicable minimum amount and shall be allowed at least 30 days
to make an appropriate investment before redemption is processed.
ARTICLE IX
Determination of Net Asset Value,
Net Income and Distributions
9.1. Net Asset Value. The net asset value of each outstanding Share of
each Series of the Trust shall be determined at such time or times on such days
as the Trustees may determine, in accordance with the 1940 Act, with respect to
each Series. The method of determination of net asset value shall be determined
by the Trustees and shall be as set forth in the Prospectus with respect to the
applicable Series. The power and duty to make the net asset value calculations
for any Series may be delegated by the Trustees. The power and duty to make the
daily calculations for any Series may be delegated by the Trustees to the
adviser, administrator, manager, custodian, transfer agent or such other person
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as the Trustees may determine. The Trustees may suspend the daily determination
of net asset value to the extent permitted by the 0000 Xxx.
9.2. Distributions to Shareholders. The Trustees shall from time to time
distribute ratably among the Shareholders of any Series such proportion of the
net profits, surplus (including paid-in surplus), capital, or assets with
respect to such Series 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 of any Series additional Shares of
such Series in such manner, at such times, and on such terms as the Trustees may
deem proper. Such distribution 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 and specify at the time of
declaration. The Trustees may always retain from the net profits such amount as
they may deem necessary to pay the debts or expenses of the Trust or to meet
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.
In as much as the computation of net income and gains for federal income
tax purposes may vary from the computation thereof on the books, the above
provision 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.
9.3. Power to Modify Foregoing Procedures. Notwithstanding any of the
foregoing provisions of this Article IX, the Trustees may prescribe, in their
absolute discretion except as may be required by the 1940 Act, such other bases
and times for determining the per share asset value of the Trust's Shares or net
income, or the declaration and payment of dividends and distributions as they
deem necessary or desirable for any reason, including to enable the Trust to
comply with any provision of the 1940 Act, or any securities association
registered under the Securities Exchange Act of 1934, or any order of exemption
issued by said Commission, all as in effect now or hereafter amended or
modified.
ARTICLE X
Shareholders
10.1. Meetings of Shareholders. Meetings of the Shareholders shall be
held at such place within or without the Commonwealth of Massachusetts on such
day and at such time as the Trustees shall designate from time to time. It is
contemplated that the Trust will not hold annual meetings of the Shareholders. A
Special Meeting of Shareholders may be called at any time by a majority of the
Trustees and shall be called by any Trustee for any proper purpose upon written
request of Shareholders of the Trust or such Series holding in the aggregate:
not less than 51 % of the outstanding Shares of the Trust or Series having
voting rights, such request specifying the purpose or purposes for which such
meeting is to be called; or, in the case of a meeting for the purpose of voting
on the question of removal of any trustee or trustees, upon written request of
Shareholders of the Trust holding in the aggregate not less than 10% of the
outstanding Shares of the Trust.
10.2. Voting. Shareholders shall have no power to vote on any matter
except matters on which a vote of Shareholders is required by applicable law,
this Declaration or resolution of the Trustees. Any
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matter required to be submitted to shareholders and affecting one or more Series
shall require separate approval by the required vote of Shareholders of each
affected Series; provided, however, that to the extent required by the 1940 Act,
there shall be no separate Series votes on the election or removal of Trustees,
the selection of auditors for the Trust and its Series or approval of any
agreement or contract entered into by the Trust or any Series. Shareholders of a
particular Series shall not be entitled to vote on any matter that affects only
one or more other Series. There shall be no cumulative voting in the election or
removal of Trustees.
10.3. Notice of Meeting and Record Date. Notice of all meetings of
Shareholders, stating the time, place and purposes of the meeting, shall be
given by the Trustees by mail to each Shareholder of record entitled to vote
thereat at his registered address, mailed at least 10 days and not more than 60
days before the meeting. Only the business stated in the notice of the meeting
shall be considered at such meeting. Any adjourned meeting may be held as
adjourned without further notice. For the purposes of determining the
Shareholders who are entitled to notice of and to vote at any meeting the
Trustees may, without closing the transfer books, fix a date not more than 60
days prior to the date of such meeting of Shareholders as a record date for the
determination of the Persons to be treated as Shareholders of record for such
purposes.
10.4. Quorum and Required Vote. The holders of a majority outstanding
Shares of the Trust present in person or by proxy shall constitute a quorum at
any meeting of the Shareholders for purposes of conducting business on which a
vote of Shareholders of the Trust is being taken, and the holders of a majority
of outstanding Shares of the applicable Series present in person or by proxy
shall constitute a quorum at any meeting of the Shareholders for purposes of
conducting business on which a vote of Shareholders of such Series is being
taken. Subject to any provision of applicable law, this Declaration or
resolution of the Trustees specifying a greater or lesser vote requirement for
the transaction of any item of business at any meeting of Shareholders, (i) the
affirmative vote of a majority of the Shares present in person or represented by
proxy and entitled to vote on the subject matter shall be the act of the
Shareholders with respect to such matter and (ii) where a separate vote of any
Series is also required or any matter, the affirmative vote of a majority of the
Shares of such Series present in person or represented by proxy at the meeting
shall be the act of the Shareholders of such Series with respect to such matter.
10.5. Proxies, etc. At any meeting of Shareholders, any holder of Shares
entitled to vote thereat may vote by properly executed proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Secretary, or with such other officer or agent of the Trust as the
Secretary may direct, for verification prior to the time at which such vote
shall be taken. Pursuant to a resolution of a majority of the Trustees, proxies
may be solicited in the name of one or more Trustees or one or more of the
officers or employees of the Trust. Only Shareholders of record shall be
entitled to vote. Each full Share shall be entitled to one vote and fractional
Shares shall be entitled to a vote of such fractions. When any Share is held
jointly by several persons, any one of them may vote at any meeting in person or
by proxy in respect of such Share, but if more than one of them shall be present
at such meeting in person or by proxy, and such joint owners or their proxies so
present disagree as to any vote to be cast, such vote shall not be received in
respect of such Share. A proxy purporting to be executed by or on behalf of a
Shareholder shall be deemed valid unless challenged at or prior to its exercise,
and the burden of proving invalidity shall rest on the challenger. If the holder
of any such Share is a minor or a person of unsound mind, and subject to
guardianship or to the legal control of any other person as regards the charge
or management of such Share, he may vote by his guardian
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or such other person appointed or having such control, and such vote may be
given in person or by proxy.
10.6. Reports. The Trustees shall cause to be prepared with respect to
each Series at least annually and more frequently to the extent required by law
a report of operations containing a balance sheet and statement of income and
undistributed income of the applicable Series of the Trust prepared in
conformity with generally accepted accounting principals and an opinion of an
independent public accountant on such financial statements. It is contemplated
that separate reports may be prepared for the various Series. Copies of such
reports shall be mailed to all Shareholders of record of the applicable Series
within the time required by the 1940 Act. The Trustees shall, in addition,
furnish to the Shareholders at least semiannually to the extent required by law,
interim reports containing an unaudited balance sheet of the Series as of the
end of such period and an unaudited statement of income and surplus for the
period from the beginning of the current fiscal year to the end of such period.
10.7. Inspection of Records. The records of the Trust shall be open to
inspection by, Shareholders to the same extent as is permitted shareholders of a
Massachusetts business corporation.
10.8. Shareholder Action by Written Consent. Any action which may be
taken by Shareholders by vote may be taken without a meeting if the holders
entitled to vote thereon of the proportion of Shares required for approval of
such action at a meeting of Shareholders pursuant to Section 10.4 consent to the
action in writing and the written consents be filed with the records of the
meetings of Shareholders. Such consent shall be treated for all purposes as a
vote taken at meeting of Shareholders.
ARTICLE XI
Duration: Termination of Trust;
Amendment; Mergers, Etc.
11.1. Duration. Subject to possible termination in accordance with the
provisions of Section 11.2 hereof, the Trust created hereby shall continue
without limitation of time.
11.2. Termination.
(a) The Trust may be terminated, after a majority of the Trustees
have approved a resolution therefor, upon approval by
Shareholders. Any Series may be terminated, after a majority of
the Trustees thereof have approved a resolution therefor, upon
approval by Shareholders. Upon the termination of the Trust or
any Series,
(i) The Trust or such Series 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 or such Series and all of the powers of the
Trustees under this Declaration shall continue until the
affairs of the Trust or such Series shall have been
wound up, including the power to fulfill or discharge
the contracts of the Trust or such Series, 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 in cash, securities or other property
of any kind, discharge or pay its
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liabilities, and 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 of the Trust or any Series shall require
approval of the principal terms of the transaction and
the nature and amount of the consideration by
Shareholders.
(iii) After paying or adequately providing for the payment of
all liabilities, and upon receipt of such releases,
indemnitees and refunding agreements, as they deem
necessary for their protection, the Trustees may
distribute the remaining Trust Property of any Series,
in cash or in kind or party each, among the Shareholders
of such Series according to their respective rights.
(b) After termination of the Trust or any Series 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. Upon termination of the Trust, the Trustees shall
thereupon be discharged from all further liabilities and duties
hereunder, and the rights and interests of all Shareholders
shall thereupon cease. Upon termination of any Series, the
Trustees shall thereunder be discharged from all further
liabilities and duties with respect to such Series, and the
rights and interests of all Shareholders of such Series shall
thereupon cease.
11.3. Amendment Procedure.
(a) This Declaration may be amended, after a majority of the
Trustees have approved a resolution therefor, by the affirmative
vote of the holders of not less than a majority of the affected
Shares. The Trustees may also amend this Declaration without any
vote of Shareholders to divide the Trust into one or more Series
or additional Series, to change the name of the Trust on any
Series thereof, to make any change that does not adversely
affect the relative rights or preferences of any Series or as
they may deem necessary to conform this 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 to do so.
(b) No amendment may be made under Section 11.3(a) above, which
would change any rights with respect to any Shares of the Trust
or any Series thereof 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 of
the holders of two-thirds of the Shares of the Trust or such
Series. Nothing contained in this Declaration shall permit the
amendment of this 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 certification in recordable form signed by a majority of the
Trustees setting forth an amendment and reciting that it was
duly adopted by the Trustees and, if required, the shareholders
as aforesaid, or a copy of the Declaration, as amended, in
recordable form, and executed by a majority of the Trustees,
shall be conclusive evidence of such amendment when lodged among
the records of the Trust.
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Notwithstanding any other provision hereof, until such time as a
Registration Statement under the Securities Act of 1933, as amended, covering
the first public offering of Shares of the Trust shall have become effective,
this Declaration may be terminated or amended in any respect by the affirmative
vote of a majority of the Trustees or by an instrument signed by a majority of
the Trustees.
11.4. 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 good will, upon such terms and conditions and for such
consideration when and as authorized by the Trustees and approved by
shareholders and any such merger, consolidation, sale, lease or exchange shall
be determined for all purposes to have been accomplished under and pursuant to
the statutes of the Commonwealth of Massachusetts. Any Series may so merge,
consolidate or effect a sale or exchange of assets, where, and as authorized by
the Trustees and approved by Shareholders. In respect of any such merger,
consolidation, sale or exchange of assets, any Shareholder of the Trust or the
Series, as the case may be, who shall vote against such action shall be entitled
to rights of appraisal of his Shares to the same extent as a shareholder of a
Massachusetts business corporation in respect of a merger, consolidation, sale
or exchange of assets of a Massachusetts business corporation, and such rights
shall be his exclusive remedy of dissent from any such action
11.5. Incorporation. Upon approval by Shareholders, 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 of securities of, and
enter into any contracts with any such corporation, trust, partnership,
association or organization, or any corporation, partnership, trust, association
or organization in which the Trust holds or is about to acquire shares or any
other interests. 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 corporation, trusts, partnerships, associations
or other organizations and selling, conveying or transferring a portion of the
Trust Property to such organizations or entities.
ARTICLE XII
Miscellaneous
12.1. Filing. This 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 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, containing the
original Declaration and all amendments theretofore made, may be executed from
time to time by a majority of the Trustees and shall, upon filing with the
Secretary of
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Commonwealth of Massachusetts, be conclusive evidence of all amendments
contained therein and may thereafter be referred to in lieu of the original
Declaration and the various amendments thereto.
12.2 Resident Agent. Trust shall maintain a resident agent in the
Commonwealth of Massachusetts, which agent shall initially be CT Corporation
System, 0 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. The Trustees may designate
a successor resident agent, provided, however, that such appointment shall not
become effective until written notice thereof is delivered to the office of the
Secretary of the Commonwealth.
12.3. Governing Law. This Declaration is executed by the trustees and
delivered in the Commonwealth of Massachusetts and with reference to the laws
thereof, and the rights of all parties and the validity and construction of
every provision hereof shall be subject to and construed according to laws of
said State and reference shall be specifically made to the business corporation
law of the Commonwealth of Massachusetts as to the construction of matters not
specifically covered herein or as to which an ambiguity exists.
12.4. Counterparts. This 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.
12.5. Reliance by Third Parties. Any certificate executed by an
individual who, according to the records of the Trust, or of any recording
office in which this Declaration may be recorded, appears to be a Trustee
hereunder, certifying to: (a) the number or identity of Trustees or
Shareholders, (b) the name of the Trust or any Series thereof, (c) the
establishment of any Series, (d) the due authorization of the execution of any
instrument or writing, (e) the form of any vote passed at a meeting of Trustees
or Shareholders, (f) the fact that the number of Trustees or Shareholders
present at any meeting or executing any written instrument satisfies the
requirements of this Declaration, (g) the form of any By-Laws adopted by or the
identity of any officers elected by the Trustees, or (h) the existence of any
fact or facts which in any manner relate to the affairs of the Trust or any
Series, shall be conclusive evidence as to the matters so certified in favor of
any person dealing with the Trustees and their successors.
12.6. Provisions in Conflict With Law or Regulation.
(a) The provisions of this 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 provision shall be deemed never to have constituted
a part of this Declaration; provided, however, that such
determination shall not affect any of the remaining provisions
of this Declaration or render invalid or improper any action
then or omitted prior to such determination.
(b) If any provision of this 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 this
Declaration in any jurisdiction.
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IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
-------------------------------- ---------------------------------
Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxx
/s/ J. Xxxxxxxxxxx Xxxxxxx
--------------------------------
J. Xxxxxxxxxxx Xxxxxxx
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THE EXPLORER INSTITUTIONAL TRUST
TRUSTEES
September 30, 1994
NAME BUSINESS ADDRESS
Xxxxxx X. Xxxxxx Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Xxxxx X. Xxxxxx Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
J. Xxxxxxxxxxx Xxxxxxx Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
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