XXXXXXXXX GLOBAL ASSET TRUST
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made this 31st day of
October, 1988, by the Trustees hereunder, and by the holders of shares of
beneficial interest to be issued hereunder as hereinafter provided.
WITNESSETH that
WHEREAS, this Trust has been formed to carry on the business of an
investment company; and
WHEREAS, the Trustees have agreed to manage all property
coming into their hands as trustees of a Massachusetts voluntary association
with transferable shares 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 pro rata benefit of
the holders from time to time of Shares in this Trust as hereinafter set
forth.
ARTICLE I NAME AND DEFINITIONS
Section 1. Name. This Trust shall be known as "Xxxxxxxxx
Global Asset Trust", and the Trustees shall conduct the business of the Trust
under that name or any other name as they may from time to time determine.
Section 2. Definitions. Whenever used herein, unless otherwise required by
the context or specifically provided: (a) The "Trust" refers to the
Massachusetts business trust established by this Agreement and Declaration of
Trust, as amended from time to time;
(b) "Trustees" refers to the Trustees of the
Trust named herein or elected in
accordance with Article IV;
(c) "Shares" means the equal proportionate
transferable units of interest into
which the beneficial interest in the Trust shall be divided from time to time
or, if more than one series of Shares is authorized by the Trustees, the
equal proportionate transferable units into which each series of Shares shall
be divided from time to time
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment
company Act of 1940 and the Rules and
Regulations thereunder, all as amended from time to time;
(f) The terms "Affiliated Person", "Assignment", "Commission", "Interested
Person", "Principal Underwriter" and "Majority Shareholder Vote" (the 67% or 50%
requirement of the third sentence of Section 2(a)(42) of the 1940 Act, whichever
may be applicable) shall have the meanings given them in the 1940 Act;
(g) "Declaration of Trust" shall mean this
Agreement and Declaration of Trust as
amended or restated from time to time; and
(h) "By-laws" shall mean the By-laws of the Trust
as amended from time to time.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to provide investors a managed
investment primarily in securities and debt instruments and to carry on such
other business as the Trustees may from time to time determine pursuant to
their authority under this Declaration of Trust.
ARTICLE III
SHARES
Section 1. Division of Beneficial Interest. The Shares of the
Trust shall be issued in one or more series as the Trustees may, without
shareholder approval, authorize. Each series shall be preferred over all
other series in respect of the assets allocated to that series. The
beneficial interest in each series shall at all times be divided into Shares,
with $.001 par value, each of which shall represent an equal proportionate
interest in the series with each other Share of the same series, none having
priority or preference over another. The number of Shares authorized shall be
unlimited. The Trustees may from time to time divide or combine the Shares
into a greater or lesser number without thereby changing the proportionate
beneficial interests in the series.
Section 2. Ownership of Shares. The ownership of Shares shall
be recorded on the books of the Trust or a transfer or similar agent. No
certificates certifying the ownership of Shares shall be issued except as the
Trustees may otherwise determine from time to time. The Trustees may make
such rules as they consider appropriate for the issuance of Share
certificates, the transfer of Shares and similar matters. The record books of
the Trust as kept by the Trust or Any transfer or similar agent, as the case
may be, shall be conclusive as to who are the Shareholders of each series and
as to the number of Shares of each series held from time to time by each
Shareholder.
Section 3. Investment in the Trust. The Trustees shall accept
investments in the Trust from such persons and on such terms and for such
consideration, which may consist of cash or tangible or intangible property
or a combination thereof, as they from time to time authorize.
All consideration received by the Trust for the issue or sale
of Shares of each series, together with all income, earnings, profits, and
proceeds thereof, including any proceeds derived from the sale, exchange or
liquidation thereof, and any funds or payments derived from any reinvestment
of such proceeds in whatever form the same may be, shall irrevocably belong
to the series of Shares with respect to which the same were received by the
Trust for all purposes, subject only to the rights of creditors, and shall be
so handled upon the books of account of the Trust and are herein referred to
as "assets of" such series.
Section 4. No Preemptive Rights Shareholders shall have no
preemptive or other right to subscribe to any additional shares or other
securities issued by the Trust.
Section 5. Status of Shares and Limitation of personal
Liability. Shares shall be deemed to be personal property giving only the
rights provided in this instrument. Every Shareholder by virtue of having
become a Shareholder hall be held to have expressly assented and agreed to
the terms hereof and to have become a party hereto. The death of a
Shareholder during the continuance of the Trust shall not operate to
terminate the same nor entitle the representative of any deceased Shareholder
to an accounting or to take any action in court or elsewhere against the
Trust or the Trustees, but only to the rights of said decedent under this
Trust. Ownership of Shares shall not entitle the Shareholder to any title in
or to the whole or any part of the Trust property or right to call for a
partition or division of the same or for an accounting, nor shall the
ownership of Shares constitute the Shareholders partners. Neither the Trust
nor the Trustees, nor any officer, employee or agent of the Trust shall have
any power to bind personally any Shareholder, nor except as specifically
provided herein to call upon any Shareholder for the payment of any sum of
money or assessment whatsoever other than such as the Shareholder may at any
time personally agree to pay.
ARTICLE IV
THE TRUSTEES
Section 1. Election. The persons who shall act as Trustees
until the first annual meeting or until their successors are duly chosen and
qualify are the initial Trustees executing this Agreement and Declaration of
Trust or any counterpart thereof., The number of Trustees shall be as
provided in the By-laws or as fixed from time to time by the Trustees. The
shareholders may elect Trustees at any meeting of Shareholders called by the
Trustees for that purpose. Each Trustee shall serve during the continued
lifetime of the Trust Until he dies, resigns or is removed, or, if sooner,
until the next meeting of Shareholders called for the purpose of electing
Trustees and the election and qualification of his successor. Any Trustee may
resign at any time by written instrument signed by him and delivered to any
officer of the Trust, to each other Trustee or to a meeting of the Trustees.
Such resignation shall be effective upon receipt unless specified to be
effective at some other time. Except to the extent expressly provided in a
written agreement with the Trust, no Trustee resigning and no Trustee removed
shall have any right to any compensation for any period following his
resignation or removal, or any right to damages on account of such removal.
Section 2. Effect of Death, Resignation, etc. of a Trustee.
The death, declination, resignation, retirement, removal or incapacity of the
Trustees, or any one of them, shall not operate to annul the Trust or to
revoke any existing agency created pursuant to the terms of this Declaration
of Trust.
Section 3. Powers. Subject to the provisions of this
Declaration of Trust, the business of the Trust shall be managed by the
Trustees and they shall have all powers no I necessary or convenient to carry
out that responsibility. Without limiting the foregoing, the Trustees may
adopt By-laws not inconsistent with this Declaration of Trust providing for
the conduct of the business of the Trust and may amend and repeal them to the
extent that such By-laws do not reserve that right to the Shareholders; they
may enlarge or reduce their number, may fill vacancies in their number,
including vacancies caused by enlargement of their number, and may remove
Trustees with or without cause; they may elect and remove, with or without
cause, such officers and appoint and terminate such agents as they consider
appropriate; they may appoint from their own number, and terminate, any one
or more committees consisting of two or more Trustees, including an executive
committee which may, when the Trustees are not in session, exercise some or
all of the power and authority of the Trustees as the Trustees may determine;
they may employ one or more custodians of the assets of the Trust and may
authorize such custodians to employ subcustodians and to deposit all or any
part of such assets in a system or systems for the central handling of
securities, retain a transfer agent or a Shareholder servicing agent, or
both, provide for the distribution of Shares by the Trust, through one or
more principal underwriters or otherwise, set record dates for the
determination of Shareholders with respect to various matters, and in general
delegate such authority as they consider desirable to any officer of the
Trust, to any committee of the Trustees and to any agent or employee of the
Trust or to any such custodian or underwriter.
Without limiting the foregoing, the Trustees shall have power and authority:
(a) To invest and reinvest cash, and to hold cash uninvested;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, write options
on and lease any or all of the assets of the Trust;
(c) To act as a distributor of shares and as underwriter of, or broker or
dealer in, securities or other property;
(d) To vote or give assent, or exercise any rights of
ownership, with respect to
stock or other securities or property; and to execute and deliver proxies or
powers of attorney to such person or persons as the Trustees shall deem
proper, granting to such person or persons such power and discretion with
relation to securities or property as the Trustees shall deem proper;
(e) To exercise powers and rights of subscription or otherwise which in any
manner arise out of ownership of securities;
(f) To hold any security or property in a form not indicating any trust,
whether in bearer, unregistered or other negotiable form, or in the name of the
Trustees or of the Trust or in the name of a custodian, sub-custodian or other
depositary or a nominee or nominees or otherwise;
(g) To allocate assets, liabilities and expenses of the Trust to a
particular series of shares or to apportion the same among two or more series,
provided that any liabilities or expenses incurred by a particular series of
Shares shall be payable solely out of the assets of that series;
(h) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer, any security of which is
or was held in the Trust; to consent to any contract, lease, mortgage, purchase
or sale of property by such corporation or issuer, and to pay calls or
subscriptions with respect to any security held in the Trust;
(i) To join with other security holders in acting
through a committee, depositary,
voting trustee or otherwise, and in that connection to deposit any security
with, or transfer any security to, any such committee, depositary or trustee,
and to delegate to them such power and authority with relation to any
security (whether or not so deposited or transferred) as the Trustees shall
deem proper, and to agree to pay, and to pay, such portion of the expenses
and compensation of such committee, depositary or trustee as the Trustees
shall deem proper;
(j) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust or any matter in controversy, including but not limited to
claims for taxes;
(k) To enter into joint ventures, general or limited
partnerships and any other
combinations or associations;
(1) To borrow funds;
(m) To enter into contracts of every kind and description;
(n) To endorse or guarantee the payment of any notes or other obligations
of any person; to make contracts of guaranty or suretyship, or otherwise assume
liability for payment thereof; and to mortgage and pledge the Trust property or
any part thereof to secure any of or all such obligations;
(o) To purchase and pay for entirely out of Trust property such insurance
as they may deem necessary or appropriate for the conduct of the business,
including without limitation, insurance policies insuring the assets of the
Trust and payment of distributions and principal on its portfolio investments,
and insurance policies insuring the Shareholders, trustees, officers, employees,
agents, investment advisers or managers principal underwriters, or independent
contractors of the Trust individually against all claims and liabilities of
every nature arising by reason of holding, being or having held any such office
or position, or by reason of any action alleged to have been taken or omitted by
any such person as Shareholder, Trustee, officer, employee, agent, investment
adviser or manager, principal underwriter, or independent contractor, including
any action taken or omitted that may be determined to constitute negligence,
whether or not the Trust would have the power to indemnify such person against
such liability;
(p) To pay pensions for faithful service, as deemed appropriate by the
Trustees, and to adopt, establish and carry out pension, profit-sharing share
bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans, trusts and provisions, including the purchasing of life insurance
and annuity contracts as a means of providing such retirement and other
benefits, for any or all of the Trustees, officers, employees and agents of the
Trust; and
(q) To engage in any other lawful act or activity in which corporations
organized under the Massachusetts Business Corporation Law may engage.
The Trustees shall not in any way be bound or limited by any present or
future law or custom in regard to investments by trustees.
Except as otherwise provided herein or from time to take in the By-laws, any
action to be taken by the Trustees may be taken by a majority of the Trustees
present at a meeting of Trustees (a quorum being present), within or without
Massachusetts, including any meeting held by means of a conference telephone
or other communications equipment by means of which all persons participating
in the meeting can hear each other at the same time and participation by such
means shall constitute presence in person at a meeting, or by written
consents of a majority of the Trustees then in office.
Section 4. Payment of Expenses by Trust. The Trustees are
authorized to pay or to cause to be paid out of the principal or income of
the Trust, or partly out of principal and partly out of income, as they deem
fair, all expenses, fees, charges, taxes and liabilities incurred or arising
in connection with the Trust, in connection with the management thereof, or
in connection with the financing of the sale of Shares, including, but not
limited to, the Trustees' compensation and such expenses and charges for the
services of the Trust's officers, employees, any investment adviser, manager,
or sub-adviser, principal underwriter, auditor, counsel, custodian, transfer
agent, shareholder servicing agent, and such other agents or independent
contractors and such other expenses and charges as the Trustees may deem
necessary or proper to incur, provided, however, that all expenses, fees,
charges, taxes and liabilities incurred or arising in connection with a
particular series of Shares as determined by the Trustees, shall be payable
solely out of the assets of that series.
Section 5. Ownership of Assets of the Trust. Title to all of
the assets of each series of Shares and of the Trust shall at all times be
considered as vested in the Trustees.
Section 6. Advisory, Management and Distribution Services. The
Trustees may, at any time and from time to time, contract for exclusive or
nonexclusive advisory and/or management services with any corporation, trust,
association or other organization (the "Manager"), every such contract to
comply with such requirements and restrictions as may be set forth in the
By-laws; and any such contract may provide for one or more subadvisers who
shall perform all or part of the obligations of the Manager under such
contract and may contain such other terms interpretive of or in addition to
said requirements and restrictions as the Trustees may determine, including,
without limitations authority to determine from time to time what investments
shall be purchased, held, sold or exchanged and what portion, if any, of the
assets of the Trust shall be held uninvested and to make changes in the
Trust's investments. The Trustees may also, at any time and from time to
time, contract with the Manager or any other corporation, trust, association
or other organization, appointing it exclusive or nonexclusive distributor or
principal underwriter for the Shares, every such contract to comply with such
requirements and restrictions as may be set forth in the By-laws; and any
such contract may contain such other terms interpretive of or in addition to
said requirements and restrictions as the Trustees may determine.
The fact that:
(i) any of the Shareholders, Trustees or officers of
the Trust is a shareholder, director, officer, partner,
trustee, employee, manager, adviser, principal underwriter or
distributor or agent of or for any corporation, trust,
association, or other organization, or of or for any parent or
affiliate of any organization, with which an advisory or
management contract, or principal underwriter's or
distributor's contract, or transfer, shareholder servicing or
other agency contract may have been or may hereafter be made,
or that any such organization, or any parent or affiliate
thereof, is a Shareholder or has an interest in the Trust, or
that
(ii) any corporation, trust, association or other
organization with which an advisory or management Contract or
principal underwriter's or distributor's contract, or
transfer, shareholder servicing or other agency contract may
have been or may hereafter be made also has an advisory or
management contract, or principal underwriter's or
distributor's contract, or transfer, shareholder servicing or
other agency contract with one or more other corporations,
trusts, associations or other organizations, or has other
business or interests shall not affect the validity of any
such contract or disqualify any Shareholder, Trustee or
officer of the Trust from voting upon or executing the same or
create any liability or accountability to the Trust or its
Shareholders.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Shareholders shall have such power to vote as is provided for in, and may
hold meetings and take actions pursuant to the provisions of the By-laws.
ARTICLE VI
DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES
Section 1. Distributions. The-Trustees may each year, or more
frequently if they so determine, distribute to the Shareholders of each
series such income and capital gains relating to such series, accrued or
realized, as the Trustees may determine, after providing for actual and
accrued expenses and liabilities (including such reserves as the Trustees may
establish) determined in accordance with good accounting practices, The
Trustees shall 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 Shareholders. Distributions of each year's income of each series
shall be distributed pro rata to Shareholders of a series in proportion to
the number of Shares of such series held by each of them. Such distributions
shall be made in cash or hares or a combination thereof as determined by the
Trustees. Any such distribution paid in Shares of a series will be paid at
the net asset value thereof as determined in accordance with the By-laws.
Section 2. Redemptions and Repurchases. The Trust shall
purchase such Shares as are offered by any Shareholder f6 redemption, upon
the presentation of any certificate for the Shares to be purchased, a proper
instrument of transfer and a request directed to the Trust or a person
designated by the Trust that the Trust purchase such Shares, or in accordance
with such other procedures for redemption as the Trustees may from time to
time authorize; and the Trust will pay therefor the net asset value thereof,
as next determined in accordance with the By-laws, less such redemption
charge or fee as the Trustees may determine from time to time. Payment for
said Shares shall be made by the Trust to the Shareholder within seven days
after the date on which the request is made. The obligation set forth in this
Section 2 is subject to the provision that in the event that any time the New
York Stock Exchange is closed for other than customary weekends or holidays
or, if permitted by rules of the Commission, during periods when trading on
the Exchange is restricted or during any emergency which makes it impractical
for the Trust to dispose of its investments or to determine fairly the value
of its net assets, or during any other period permitted by order of the
commission for the protection of investors, such obligation may be suspended
or postponed by the Trustees. The Trust may also purchase or repurchase
Shares at a price not exceeding the net asset value of such Shares in effect
when the purchase or repurchase or any contract to purchase or repurchase is
made.
Section 3. Redemptions at the Option of the Trust. The Trust
shall have the right at its option and at any time to redeem Shares of any
Shareholder at the net asset value thereof as determined in accordance with
the By-laws: (i) if at such time such Shareholder owns fewer Shares of a
particular series than, or Shares of a particular series having an aggregate
net asset value of less than, an amount determined from time to time for such
series by the Trustees; or (ii) to the extent that such Shareholder owns
Shares of a particular series of Shares equal to or in excess of a percentage
of the outstanding Shares of that series determined from time to time by the
Trustees; or (iii) to the extent that such Shareholder owns Shares of the
Trust representing a percentage equal to or in excess of such percentage of
the aggregate number of outstanding Shares of the Trust or the aggregate net
asset value of the Trust determined from time to time by the Trustees.
Section 4. Dividends, Distributions, Redemptions and
Repurchases. No dividend or distribution (including, without limitation, any
distribution paid upon termination of the Trust or of any series) with
respect to, nor any redemption or repurchase of, the Shares of any series
shall be effected by the Trust other than from the assets allocated to such
series.
ARTICLE VII
COMPENSATION AND LIMITATION OF LIABILITY OF TRUSTEES
Section 1. Compensation. The Trustees as such shall be
entitled to reasonable compensation from the Trust; they may fix the amount
of their compensation. Nothing herein shall in any way prevent the employment
of any Trustee for advisory, management, legal, accounting, investment
banking, underwriting, brokerage, or investment dealer or other services and
payment for the same by the Trust.
Section 2. Limitation of Liability. The Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing of any
officer, agency, employee, manager or principal underwriter of the Trust, nor
shall any Trustee be responsible for the act or omission of any other
Trustee, but nothing herein contained shall protect any Trustee against any
liability to which he or she would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his or her office.
Every note, bond, contract, instrument, certificate or
undertaking and every other act or thing whatsoever executed or done by or on
behalf of the Trust or the Trustees or any of them in connection with the
Trust shall be conclusively deemed to have been executed or done only in or
with respect to their or his or her capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
ARTICLE VIII
INDEMNIFICATION
Section 1. Trustees, Officers, etc. The Trust shall indemnify
each of its Trustees and officers (including persons who serve at the Trust's
request as directors, officers or trustees of another organization in which
the Trust has any interest as a shareholder, creditor or otherwise)
(hereinafter referred to as a "Covered Person") 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 any Covered Person in connection with the defense or
disposition of, any action, suit or other proceeding, whether civil or
criminal, before any court or administrative or legislative body, in which
such Covered Person may be or may have been involved as a party or otherwise
or with which such Covered Person may be or may have been threatened, while
in office or thereafter, by reason of being or having been such a Covered
Person except with respect to any matter as to which such Covered Person
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
such Covered Person's action was in the best interests of the Trust or (b) to
be liable to the Trust or it's Shareholders by reason of willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in
the conduct of such Covered Person's office. Expenses, including counsel fees
so incurred by any such Covered Person (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 Covered Person to repay amounts so paid to the Trust if it is
ultimately determined that indemnification of such expenses is not authorized
under this Article, provided however, that either (a) such Covered Person
shall have provided appropriate security for such undertaking, (b) the Trust
shall be insured against losses arising from 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 Covered
Person will be found entitled to indemnification under this Article.
Section 2. Compromise-Payment. As to any matter dispose 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 Covered Person either (a) did not act in
good faith in the reasonable belief that his or her action was in the best
interests of the Trust or (b) is liable to the Trust or its Shareholders by
reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his or her office,
indemnification shall be provided if (a) approved as in the best interests of
the Trust, after notice that it involves such indemnification, 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 Covered Poison acted in good faith in
the reasonable belief that his or her action was in the best interests of the
Trust and is not liable to the Trust or its Shareholders by reasons of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved it the conduct of his or her 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 Covered Person appears to have acted in good faith in
the reasonable belief that his or her action was in the best interests of the
Trust and that such indemnification would not protect such Covered Person
against any liability to the Trust to which he or she would otherwise be
subject by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his or her
office. Any approval pursuant to this Section shall not prevent the recovery
from any Covered Person of any amount paid to such Covered Person in
accordance with this Section as indemnification if such Covered Person is
subsequently adjudicated by a court of competent jurisdiction not to have
acted in good faith in the reasonable belief that such Covered Person's
action was in the best interests of the Trust or to have been liable to the
Trust or its Shareholders by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of
such covered Person's office.
Section 3. Indemnification Not Exclusive. The right of
indemnification hereby provided shall not be exclusive of or affect any other
rights to which such Covered Person may be entitled. As used in this Article
VIII, the term "Covered Person" shall include such person's 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 1940
Act (or who has been exempted from being an "interested person" by any rule,
regulation or order of the 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 Article shall affect any rights to indemnification to which personnel of
the Trust, other than Trustees or 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; provided,
however, that the Trust shall not purchase or maintain any such liability
insurance in contravention of applicable law, including without limitation
the 1940 Act.
Section 4. Shareholders. In case any Shareholder or former
Shareholder shall be held to be personally liable solely by reason of his or
her being or having been a Shareholder and not because of his or her acts or
omissions or for some other reason, the Shareholder or former Shareholder (or
his or her hairs, executors, administrators or other legal representatives or
in the case of a corporation or other entity, its corporate or other general
successor) shall be entitled to be held harmless from and indemnified against
all loss and expense arising from such liability, but only out of the assets
of the particular series of Shares of which he or she is or was a
Shareholder.
ARTICLE IX
MISCELLANEOUS
Section 1. Trustees, Shareholders, etc. Not Personally Liable;
Notice. All persons extending credit to, contracting with or having any claim
against the Trust or a particular series of Shares shall look only to the
assets of the Trust or the assets allocated to that particular series of
Shares for payment under such credit, contract or claim; and neither the
Shareholders nor the Trustees, nor any of the Trut's officers, employees or
agents, whether past, present or future, shall be personally liable therefor.
Nothing in this Declaration of Trust shall protect any Trustee against any
liability to which such Trustee would otherwise be subject by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the office of Trustee.
Every note, bond, contract, instrument, certificate or
undertaking made or issued by the Trustees or by any officer or officers
shall give notice that this Declaration of Trust is on file with the
Secretary of The Commonwealth of Massachusetts and shall recite that the same
was executed or made by or on behalf of, the Trust or by them as Trustee or
Trustees or as officers or officer and not individually and that the
obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and property
of the Trust, and may contain such further recital as he or she or they may
deem appropriate, but the omission thereof shall not operate to bind any
Trustee or Trustees or officer or officers or Shareholder or Shareholders
individually.
Section 2. Principal office; Registered Agent. The principal
business office of the Trust is to be located at one Xxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx, 00000-0000. The name of the Trust's registered agent is The
Boston Company Advisors, Inc., Xxx Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000-0000.
Section 3. Trustee's Good Faith Action, Expert Advice, No Bond
or Surety. The exercise by the Trustees of their powers and discretions
hereunder shall be binding upon everyone interested. A Trustee shall be
liable for his or her own willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the office of
Trustee, and for nothing else, and shall not be liable for errors of judgment
or mistakes of fact or law. The Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this Declaration of
Trust, and shall be under no liability for any act or omission in accordance
with such advice or for failing to follow such advice. The Trustees shall not
be required to give any bond as such, nor any surety if a bond is required.
Section 4. Liability of Third Persons Dealing with Trustees.
No person dealing with the Trustees shall be bound to make any inquiry
concerning the validity of any transaction made or to be made by the Trustees
or to see to the application of any payments made or property transferred to
the Trust or upon its order.
Section 5. Duration and Termination of Trust. Unless
terminated as provided herein, the Trust shall continue without limitation of
time. The Trust may be terminated at any time by the vote of Shareholders
holding at least a majority of the Shares of each series entitled to vote or
by the Trustees by written notice to the Shareholders. Any series of Shares
may be terminated at any time by vote of Shareholders holding at least a
majority of the Shares of such series entitled to vote or by the Trustees by
written notice to the Shareholders of such series.
Upon termination of the Trust or of any one or more series of
Shares, after paying or otherwise providing for all charges, taxes, expenses
and liabilities, whether due or accrued or anticipated, of the Trust or of
the particular series as may be determined by the Trustees, the Trust shall
in accordance with such procedures as the Trustees consider appropriate
reduce the remaining assets to distributable form in cash or shares or other
securities, or any combination thereof, and distribute the proceeds to the
Shareholders of the series involved, ratably according to the number of
Shares of such series held by the several Shareholders of such series on the
date of termination.
Section 6. Filing of Copies, References, Headings. The
original or a copy of this instrument and of each amendment hereto shall be
kept at the office of the Trust where it may be inspected by Any shareholder.
A copy of this instrument and of each amendment hereto shall be filed by the
Trust with the Secretary of the Commonwealth of Massachusetts and with the
Boston City Clerk, as well as any other governmental office where such filing
may from time to time be required. Anyone dealing with the Trust may rely on
a certificate by an officer of the Trust as to whether or not any such
amendments have been made and as to any matters in connection with the Trust,
hereunder, And, with the same effect as if it were the original, may rely on
a copy certified by an officer of the Trust to be a copy of this instrument
or of any such amendments. In this instrument and in any such amendment,
references to this instrument and all expressions like "herein", "hereof" and
"hereunder" shall be deemed to refer to this instrument as amended or
affected by any such amendments. Headings are placed herein for convenience
of reference only.
And shall not be taken as a part hereof or control or affect
the meaning, construction or effect of this instrument. This instrument may
be executed in any number of counterparts each of which shall be deemed an
original.
Section 7. Applicable Law. This Declaration of Trust is
created under and is to be governed by and construed and administered
according to the laws of The Commonwealth of Massachusetts. The Trust shall
be of the type commonly called a Massachusetts business trust, and without
limiting the provisions hereof, the Trust may exercise all powers which are
ordinarily exercised by such a trust.
Section 8. Amendments. This Declaration of Trust may be
amended at any time by an instrument in writing signed by a majority of the
then Trustees when authorized to do so by vote of Shareholders holding a
majority of the Shares of each series entitled to vote, except that an
amendment which shall affect the holders of one or more series of Shares but
not the holders of all outstanding series shall be authorized by vote of the
Shareholders holding a majority of the Shares entitled to vote of each series
Affected and no vote of Shareholders of a series not affected shall be
required. Amendments having the purpose of changing the name of the Trust or
of supplying any omission, curing any ambiguity or curing, correcting or
supplementing any defective or inconsistent provision contained herein shall
not require authorization by Shareholder vote.
IN WITNESS WHEREOF, the undersigned have executed this
Instrument as of the day and year first above written.
/s/Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, President and
Trustee
0 Xxxxxxxx Xxxxxx, Xxxxxx XX0X
/s/ Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx, Secretary
Treasurer and Trustee
000 Xxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 31st day of October, 1988 before me personally appeared
Xxxxxx Xxxxxxx and Xxxxxxx X. Xxxxxxxxx to me known to be the individuals
described in and who executed the foregoing instrument, and acknowledged that
they executed the same as their free act and deed.
/s/ Xxxxxx X. Xxxxxx, Esq.
Notary Public, State of New York
Commission Expires June 30, 1992
