AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
XXXXXXXXXXX MUNICIPAL FUND
(formerly "Xxxxxxxxxxx Tax-Exempt Fund")
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made
this 16th day of September, 1996, by the Trustees whose signatures
are set forth below (together with all other persons from time to
time duly elected, qualified and serving as Trustees in accordance
with the provision of Article IV hereof, the "Trustees"), and by
the holders of shares of beneficial interest heretofore issued or
to be issued hereunder as hereinafter provided.
WITNESSETH
WHEREAS, the Trustees previously formed a trust for the
purposes of carrying on the business of a management investment
company under an Agreement and Declaration of Trust dated August 5,
1986, as amended July 10, 1992, April 29, 1993, November 29, 1993,
July 10, 1975 and June 23, 1995; and in furtherance of such
purposes, the Trustees have acquired and may hereafter acquire
assets and properties, to hold and manage as trustees of a
Massachusetts voluntary association with transferable shares in
accordance with the provisions hereinafter set forth; and
WHEREAS, the Trustees desire to make permitted changes to said
Declaration of Trust pursuant to Section 4 of Article IX.
NOW, THEREFORE, the Trustees hereby declare that they will
hold all cash, securities and other assets and properties, 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 the Trust as hereinafter set
forth.
ARTICLE I
Name and Definitions
Name and Registered Agent
Section 1. This Trust shall be known as "Xxxxxxxxxxx
Municipal Fund" 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. The registered agent for the Trust in
Massachusetts shall be Massachusetts Mutual Life Insurance Company,
0000 Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Xxxxxxx Xxxx, Esq., or such other person as the Trustees may from
time to time designate.
Definitions
Section 2. Whenever used herein, unless otherwise required by
the context or specifically provided:
(a) The "Trust" refers to the Massachusetts voluntary
association established by this Agreement and Declaration of Trust,
as it may be amended from time to time, pursuant to Massachusetts
General Laws, Chapter 182;
(b) "Trustees" refers to the Trustees of the Trust named
herein or elected in accordance with Article IV and then in office;
(c) "Shares" mean the transferable units of interest into
which the beneficial interest in the Trust or any Series or Class
of the Trust shall be divided from time to time, and includes
fractions of Shares as well as whole Shares;
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company Act of
1940 (and any successor statute) 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
"vote of a majority of the outstanding voting securities" and other
terms which are defined in the 1940 Act 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;
(h) "By-Laws" shall mean the By-Laws of the Trust as amended
from time to time;
(i) "Net asset value" shall have the meaning set forth in
Section 5 of Article VI hereof;
(j) "Class" means a class of a Series of Shares established
and designated in accordance with the provisions of this
Declaration of Trust; and
(k) "Series" means the Series of Shares established and
designated in accordance with the provisions of this Declaration of
Trust.
ARTICLE II
Nature and Purpose
The Trust is a voluntary association (commonly known as a
business trust) of the type referred to in Chapter 182 of the
General Laws of the Commonwealth of Massachusetts. The Trust is
not intended to be, shall not be deemed to be, and shall not be
treated as, a general or a limited partnership, joint venture,
corporation or joint stock company, nor shall the Trustees or
Shareholders or any of them for any purpose be deemed to be, or be
treated in any way whatsoever as though they were, liable or
responsible hereunder as partners or joint venturers. The purpose
of the Trust is to engage in, operate and carry on the business of
an open-end management investment company and to do any and all
acts or other things as are necessary, convenient, appropriate,
incidental or customary in connection therewith.
ARTICLE III
Shares
Division of Beneficial Interest
Section 1. The beneficial interest in the Trust shall be
divided into Shares, all without par value, but the Trustees shall
have the authority from time to time, without obtaining Shareholder
approval, to create one or more Series of Shares (the proceeds of
which may be invested in separate, independently managed
portfolios) in addition to the Series specifically established and
designated in Section 3 of this Article III, and to divide the
shares of any Series into two or more Classes pursuant to Section
2 of this Article III, all as they deem necessary or desirable, to
establish and designate such Series and Classes, and to fix and
determine the relative rights and preferences as between the
different Series or Classes of Shares as to right of redemption and
the price, terms and manner of redemption, liabilities and expenses
to be borne by any Series or Class, special and relative rights as
to dividends and other distributions and on liquidation, sinking or
purchase fund provisions, conversion on liquidation, conversion
rights, and conditions under which the several Series or Classes
shall have individual voting rights or no voting rights. Except as
aforesaid, all Shares of the different Series shall be identical.
(a) The number of authorized Shares and the number of Shares
of each Series and each Class of a Series that may be issued is
unlimited, and the Trustees may issue Shares of any Series or Class
of any Series for such consideration and on such terms as they may
determine (or for no consideration if pursuant to a Share dividend
or split-up), all without action or approval of the Shareholders.
All Shares when so issued on the terms determined by the Trustees
shall be fully paid and non-assessable. The Trustees may classify
or reclassify any unissued Shares or any Shares previously issued
and reacquired of any Series into one or more Series or Classes of
Series that may be established and designated from time to time;
and the Trustees may from time to time divide or combine the Shares
of any Series or Class into a greater or lesser number without
thereby changing the proportionate beneficial interests in the
Series or Class. 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, at their discretion
from time to time, any Shares of any Series reacquired by the
Trust.
(b) The establishment and designation of any Series or any
Class of any Series in addition to that established and designated
in Section 3 of this Article III shall be effective upon the
execution by a majority of the Trustees of an instrument setting
forth such establishment and designation and the relative rights
and preferences of such Series or such Class of such Series or as
otherwise provided in such instrument. At any time that there are
no Shares outstanding of any particular Series previously
established and designated, and as provided in Article IX, Section
1, 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 be an amendment to this Declaration of Trust, and the
Trustees may make any such amendment without shareholder approval.
Section 2. The Trustees shall have the authority from time to
time to divide the Shares of any Series into two or more Classes as
they deem necessary or desirable, and to establish and designate
such Classes. In such event, each Class of a Series shall
represent interests in the designated Series of the Trust and have
such voting, dividend, liquidation and other rights as may be
established and designated by the Trustees. Expenses and
liabilities related directly or indirectly to the Shares of a Class
of a Series may be borne solely by such Class (as shall be
determined by the Trustees) and, as provided in Article V, a Class
of a Series may have exclusive voting rights with respect to
matters relating solely to such Class. The bearing of expenses and
liabilities solely by a Class of Shares of a Series shall be
appropriately reflected (in the manner determined by the Trustees)
in the net asset value, dividend and liquidation rights of the
Shares of such Class of a Series. The division of the Shares of a
Series into Classes and the terms and conditions pursuant to which
the Shares of the Classes of a Series will be issued must be made
in compliance with the 1940 Act. No division of Shares of a Series
into Classes shall result in the creation of a Class of Shares
having a preference as to dividends or distributions or a
preference in the event of any liquidation, termination or winding
up of the Trust, to the extent such a preference is prohibited by
Section 18 of the 1940 Act as to the Trust.
The relative rights and preferences of Shares of different
Classes shall be the same in all respects except that, unless and
until the Board of Trustees shall determine otherwise: (i) when
a vote of Shareholders is required under this Declaration of Trust
or when a meeting of Shareholders is called by the Board of
Trustees, the Shares of a Class shall vote exclusively on matters
that affect that Class only, (ii) the liabilities and expenses
related to a Class shall be borne solely by such Class (as
determined and allocated to such Class by the Trustees from time to
time in a manner consistent with Sections 2 and 3 of this Article
III); and (iii) pursuant to Section 10 of Article III, the Shares
of each Class shall have such other rights and preferences as are
set forth from time to time in the then-effective Prospectus and/or
Statement of Additional Information relating to the Shares.
Dividends and distributions on one class may differ from the
dividends and distributions on another Class, and the net asset
value of the Shares of one Class may differ from the net asset
value of the Shares of another Class.
Section 3. Without limiting the authority of the Trustees set
forth in Section 1 of this Article III to establish and designate
any further Series, the Trustees hereby establish two Series of
Shares known as "Xxxxxxxxxxx Insured Municipal Fund" and
"Xxxxxxxxxxx Intermediate Municipal Fund."
The Shares of Xxxxxxxxxxx Insured Municipal Fund are divided
into three Classes, which are designated "Class A," "Class B" and
"Class C," as follows: the Shares of the Series outstanding since
the inception of the Trust are designated Class A Shares, the
Shares of the Class initially created upon the division of the
Shares of that Series into two Classes pursuant to the Trust's
Amended and Restated Agreement and Declaration of Trust dated April
29, 1993 are designated Class B Shares, and the Shares of the Class
initially created upon the division of the Shares of that Series
into three classes pursuant to the Trust's Amended and Restated
Agreement and Declaration of Trust dated July 10, 1995 are hereby
designated Class C Shares.
The Shares of Xxxxxxxxxxx Intermediate Municipal Fund shall
be divided into three Classes, which shall be designated "Class A,"
"Class B" and "Class C," as follows: the Shares of the Series
initially created at the inception of the Trust are hereby
designated Class A Shares, the Shares of the Class initially
created upon the division of the Shares of that Series into two
Classes pursuant to the Trust's Amended and Restated Agreement and
Declaration of Trust date November 29, 1993 are hereby designated
Class C Shares, and the Shares of the Class initially created upon
the division of the Shares of that Series into three classes
pursuant to the Trust's Amended and Restated Agreement and
Declaration of Trust dated July 10, 1995 are hereby designated
Class B Shares.
The Shares of each Series and any Shares of any further Series
or Classes that may from time to time be established and designated
by the Trustees shall (unless the Trustees otherwise determine with
respect to some further Series or Classes at the time of
establishing and designating the same) have the following relative
rights and preferences:
(a) Assets Belonging to Series. All consideration received
by the Trust for the issue or sale of Shares of a particular
Series, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds
thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from
any reinvestment of such proceeds in whatever form the same may be,
shall irrevocably belong to that Series for all purposes, subject
only to the rights of creditors, and shall be so recorded upon the
books of account of the Trust. Such consideration, assets, income,
earnings, profits, and proceeds thereof, including any proceeds
derived from the sale, exchange or liquidation of such assets, and
any funds or payments derived from any reinvestment of such
proceeds, in whatever form the same may be, together with any
General Items allocated to that Series as provided in the following
sentence, are herein referred to as "assets belonging to" that
Series. 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
(collectively "General Items"), the Trustees shall allocate such
General Items 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 they, in their sole discretion, deem fair and
equitable; and any General Items so allocated to a particular
Series shall belong to that Series. Each such allocation by the
Trustees shall be conclusive and binding upon the shareholders of
all Series for all purposes.
(b) (1) Liabilities Belonging to the Series. The
liabilities, expenses, costs, charges and reserves attributable to
each Series shall be charged and allocated to the assets belonging
to each particular Series. Any general liabilities, expenses,
costs, charges and reserves of the Trust which are not identifiable
as belong 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. The liabilities, expenses, costs, charges and reserves
allocated and so charged to each Series are herein referred to as
"liabilities belonging to" that Series. 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.
(2) Liabilities Belonging to a Class. If a Series is
divided into more than one Class, the liabilities, expenses, costs,
charges and reserves attributable to a Class shall be charged and
allocated to the Class to which such liabilities, expenses, costs,
charges or reserves are attributable. Any general liabilities,
expenses, costs, charges or reserves belonging to the Series which
are not identifiable as belonging to any particular Class shall be
allocated and charged by the Trustees to and among any one or more
of the Classes established and designated from time to time in such
manner and on such basis as the Trustees in their sole discretion
deem fair and equitable. The liabilities, expenses, costs, charges
and reserves allocated and so charged to each Class are herein
referred to as "liabilities belonging to" that Class. Each
allocation of liabilities, expenses, costs, charges and reserves by
the Trustees shall be conclusive and binding upon the holders of
all Classes for all purposes.
(c) Dividends. Dividends and distributions on Shares of a
particular Series or Class may be paid to the holders of Shares of
that Series or Class, 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, from such of the income, capital
gains accrued or realized, and capital and surplus, from the assets
belonging to that Series, as the Trustees may determine, after
providing for actual and accrued liabilities belonging to such
Series or Class. All dividends and distributions on Shares of a
particular Series or Class shall be distributed pro rata to the
holders of such Series or Class in proportion to the number of
Shares of such Series or Class held by such holders at the date and
time of record established for the payment of such dividends or
distributions, except that in connection with any dividend or
distribution program or procedure the Trustees may determine that
the Shareholder's purchase order and/or payment have not been
received by the time or times established by the Trustees under
such program or procedure. Such dividends and distributions may be
made in cash or Shares or a combination thereof as determined by
the Trustees or pursuant to any program that the Trustees may have
in effect at the time for the election by each Shareholder of the
mode of the making of such dividend or distribution to that
Shareholder. Any such dividend or distribution paid in Shares will
be paid at the net asset value thereof as determined in accordance
with Section 5 of Article VI.
(d) Liquidation. In the event of the liquidation or
dissolution of the Trust, the Shareholders of all Classes of each
Series that have been established and designated shall be entitled
to receive, as a Series or Class, when and as declared by the
Trustees the excess of the assets belonging to that Series over the
liabilities belonging to that Series or Class. The assets so
distributable to the Shareholders of any particular Class and
Series shall be distributed among such Shareholders in proportion
to the number of Shares of such Class of that Series held by them
and recorded on the books of the Trust.
(e) Transfer. All Shares of each particular Series shall be
transferable, but transfers of Shares of a particular Class or
Series will be recorded on the Share transfer records of the Trust
applicable to such Class of that Series only at such times as
Shareholders shall have the right to require the Trust to redeem
Shares of such Series or Class of that Series and at such other
times as may be permitted by the Trustees.
(f) Equality. Each Share of a Series shall represent an
equal proportionate interest in the assets belonging to that Series
(subject to the liabilities belonging to such Series or any Class
of that Series), and each Share of any particular Series shall be
equal to each other Share of that Series and Shares of each Class
of a Series shall be equal to each other Share of such Class; but
the provisions of this sentence shall not restrict any distinctions
permissible under this Article III that may exist with respect to
Shares of the different Classes of a Series. The Trustees may from
time to time divide or combine the Shares of any particular Class
or Series into a greater or lesser number of Shares of that Class
or Series without thereby changing the proportionate beneficial
interest in the assets belonging to the Class or Series or in any
way affecting the rights of Shares of any other Class or Series.
(g) Fractions. Any fractional Share of any Class and Series,
if any such fractional Share is outstanding, shall carry
proportionately all the rights and obligations of a whole Share of
that Class and Series, including those rights and obligations with
respect to voting, receipt of dividends and distributions,
redemption of Shares, and liquidation of the Trust.
(h) Conversion Rights. Subject to compliance with the
requirements of the 1940 Act, the Trustees shall have the authority
to provide that (i) holders of Shares of any Series shall have the
right to exchange said Shares into Shares of one or more other
Series of Shares, (ii) holders of Shares of any Class shall have
the right to exchange said Shares into Shares of one or more other
Classes of the same or a different Series, and/or (iii) the Trust
shall have the right to carry out the aforesaid exchanges, in each
case in accordance with such requirement and procedures as may be
established by the Trustees. Except as otherwise determined by the
Trustees in their sole discretion, Shareholders shall have no
exchange or conversion right with respect to their Shares.
(i) Preemptive Rights. Shareholders shall have no preemptive
or other rights to receive, purchase or subscribe for any
additional Shares or other securities issued by the Trust. The
Shareholders shall have no appraisal rights with respect to their
Shares.
Ownership of Shares
Section 4. The ownership and transfer of Shares shall be
recorded on the books of the Trust or its transfer agent or similar
agent, which books shall be maintained separately for the Shares of
each Class and Series. 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 use of facsimile signatures, the transfer of Shares and similar
matters. The record books of the Trust as kept by the Trust or any
transfer or similar agent of the Trust, as the case may be, shall
be conclusive as to who are the Shareholders of each Series or
Class and as to the number of Shares of each Series and Class held
from time to time by each Shareholder.
Investments in the Trust
Section 5. The Trustees may issues Shares of the Trust to
such persons and on such terms and, subject to any requirements of
law, for such consideration, which may consist of cash or tangible
or intangible property or a combination thereof, as they may from
to time to time authorize.
Right to Refuse Orders
Section 6. The Trust by action of its Trustees shall have the
right to refuse to accept any subscription for its Shares at any
time without any cause or reason therefor whatsoever. Without
limiting the foregoing, the Trust shall have the right not to
accept subscriptions under circumstances or in amounts as the
Trustees in their sole discretion consider to be disadvantageous to
existing Shareholders, and the Trustees may from time to time set
minimum and/or maximum amounts which may be invested in Shares by
a subscriber. The Trustees may authorize any distributor,
principal underwriter, custodian, transfer agent or other person to
accept orders for the purchase or sale of Shares that conform to
such authorized terms and to reject any purchase or sale orders for
Shares whether or not conforming to such authorized terms.
Time for Determining Sales Price
Section 7. The time or times as of which the net asset value
shall be determined for the purpose of determining the sales price
for Shares issued pursuant to this Article III shall be at such
times as the Trustees may establish from time to time in accordance
with applicable provisions of the 1940 Act.
Order in Proper Form
Section 8. The criteria for determining what constitutes an
order in proper form and the time of receipt of such an order by
the Trust shall be prescribed by resolution of the Trustees and
such criteria may be established in the Trust's then current
prospectus or established by the Trust's distributor or transfer
agent, subject to approval of the Trustees.
When Shares Become Outstanding
Section 9. Shares subscribed for and for which an order in
proper form has been received shall be deemed to be outstanding as
of the time of acceptance of the order therefor and the
determination of the net price thereof, which price shall be then
deemed to be an asset of the Trust.
Merger or Consolidation
Section 10. In connection with the acquisition of all or
substantially all the assets or stock of another investment
company, investment trust, or of a company classified as a personal
holding company under Federal Income Tax laws, the Trustees may
issue or cause to be issued Shares of a Series or Class and accept
in payment therefor, in lieu of cash, such assets at their market
value, or such stock at the market value of the assets held by such
investment company or investment trust, either with or without
adjustment for contingent costs or liabilities.
Status of Shares and Limitation of Personal Liability
Section 11. 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 shall be held
to have expressly assented and agreed to the terms of the
Declaration of Trust and to have become a party thereto. 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
succeed 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.
Shareholder Inspection Rights
Section 12. Any Shareholder or his or her agent may inspect
and copy during normal business hours any of the following
documents of the Trust: By-Laws, minutes of the proceedings of the
Shareholders and annual financial statements of the Trust,
including a balance sheet and financial statements of operations.
The foregoing rights of inspection of Shareholders of the Trust are
the exclusive and sole rights of the Shareholders with respect
thereto and no Shareholder of the Trust shall have, as a
Shareholder, the right to inspect or copy any of the books, records
or other documents of the Trust except as specifically provided in
this Section 12 of this Article III or except as otherwise
determined by the Trustees.
ARTICLE IV
The Trustees
Number, Designation, Election, Term, Etc.
Section 1.
(a) Number. The Trustees who have executed this Amended and
Restated Declaration of Trust may increase or decrease the number
of Trustees to a number other than the number theretofore
determined which number shall not be less than three nor more than
fifteen. No decrease in the number of Trustees shall have the
effect of removing any Trustee from office prior to the expiration
of his or her term, but the number of Trustees may be decreased in
conjunction with the removal of a Trustee pursuant to subsection
(d) of this Section 1.
(b) Term. Each Trustee, whether now incumbent or hereafter
becoming a Trustees, shall serve as a Trustee until the next
meeting of Shareholders, if any, called for the purpose of
considering the election or re-election of such Trustee or of a
successor to such Trustee, and until the election and qualification
of his successor, if any, elected at such meeting, or until such
Trustee sooner dies, resigns, retires or is removed. Upon the
election and qualification of a new Trustee, the Trust estate shall
vest in the new Trustee (together with the continuing or other new
Trustees) without any further act or conveyance.
(c) Resignation and Retirement. Any Trustee may resign his
or her trust or retire as a Trustee, by written instrument signed
by him or her and delivered to the other Trustees or to any officer
of the Trust, and such resignation or retirement shall take effect
upon such delivery or upon such later date as is specified in such
instrument.
(d) Removal. Any Trustee may be removed for cause at any
time by written instrument, signed by at least a majority of the
number of Trustees prior to such removal, specifying the date upon
which such removal shall become effective. Any Trustee may be
removed with or without cause (i) by the vote of the Shareholders
entitled to be cast on the matter voting together without regard to
Series or Class at any meeting called for such purpose, or (ii) by
a written consent filed with the custodian of the Trust's portfolio
securities and executed by the Shareholders entitled to vote more
than fifty percent (50%) of the votes entitled to be cast on the
matter voting together without regard to Series or Class.
Whenever ten or more Shareholders of record who have been
such for at least six months preceding the date of application, and
who hold in the aggregate Shares constituting at least one percent
of the outstanding Shares of the Trust, shall apply to the Trustees
in writing, stating that they wish to communicate with other
Shareholders with a view to obtaining signatures to a request for
a meeting to consider removal of a Trustee and accompanied by a
form of communication and request that they wish to transmit, the
Trustees shall within five business days after receipt of such
application inform such applicants as to the approximate cost of
mailing to the Shareholders of record the proposed communication
and form of request. Upon the written request of such applicants,
accompanied by a tender of the material to be mailed and of the
reasonable expenses of mailing, the Trustees shall, within
reasonable promptness, mail such material to all Shareholders of
record at their addresses as recorded on the books of the Trust.
Notwithstanding the foregoing, the Trustees may refuse to mail such
material on the basis and in accordance with the procedures set
forth in the last two paragraphs of Section 16(c) of the 1940 Act.
(e) Vacancies. Any vacancy or anticipated vacancy resulting
from any reason, including without limitation the death,
resignation, retirement, removal or incapacity of any of the
Trustees, or resulting from an increase in the number of Trustees
by the other Trustees may (but so long as there are at least three
remaining Trustees, need not unless required by the 0000 Xxx) be
filled either by a majority of the remaining Trustees, even if less
than a quorum, through the appointment in writing of such other
person as such remaining Trustees in their discretion shall
determine or, whenever deemed appropriate by the remaining
Trustees, by the election by the Shareholders, at a meeting called
for such purpose, of a person to fill such vacancy, and such
appointment or election shall be effective upon the written
acceptance of the person named therein to serve as a Trustee and
agreement by such person to be bound by the provisions of this
Declaration of Trust, except that any such appointment or election
in anticipation of a vacancy to occur by reason of retirement,
resignation, or increase in number of Trustees to be effective at
a later date shall become effective only at or after the effective
date of said retirement, resignation, or increase in number of
Trustees. As soon as any Trustee so appointed or elected shall
have accepted such appointment or election and shall have agreed in
writing to be bound by this Declaration of Trust and the
appointment or election is effective, the Trust estate shall vest
in the new Trustee, together with the continuing Trustees, without
any further act or conveyance.
(f) Mandatory Election by Shareholders. Notwithstanding the
foregoing provisions of this Section 1, the Trustees shall call a
meeting of the Shareholders for the election of one or more
Trustees at such time or times as may be required in order that the
provisions of the 1940 Act may be complied with, and the authority
hereinabove provided for the Trustees to appoint any successor
Trustee or Trustees shall be restricted if such appointment would
result in failure of the Trust to comply with any provision of the
1940 Act.
(g) Effect of Death, Resignation, Etc. The death,
resignation, retirement, removal or incapacity of the Trustees, or
any one of them, shall not operate to annul or terminate the Trust
or to revoke or terminate any existing agency or contract created
or entered into pursuant to the terms of this Declaration of Trust.
(h) No Accounting. Except under circumstances which would
justify his or her removal for cause, no person ceasing to be a
Trustee as a result of his or her death, resignation, retirement,
removal or incapacity (nor the estate of any such person) shall be
required to make an accounting to the Shareholders or remaining
Trustees upon such cessation.
Powers
Section 2. The Trustees, subject only to the specific
limitations contained in this Declaration of Trust or otherwise
imposed by the 1940 Act or other applicable law, shall have,
without further or other authorization and free from any power or
control of the Shareholders, full, absolute and exclusive power,
control and authority over the Trust assets and the business and
affairs of the Trust to the same extent as if the Trustees were the
sole and absolute owners thereof in their own right and to do all
such acts and things as in their sole judgment and discretion are
necessary and incidental to, or desirable for, the carrying out of
any of the purposes of the Trust or conducting the business of the
Trust. Any determination made in good faith by the Trustees of the
purposes of the Trust or the existence of any power or authority
hereunder shall be conclusive. In construing the provisions of
this Declaration of Trust, there shall be a presumption in favor of
the grant of power and authority to the Trustees. Without limiting
the foregoing, the Trustees may adopt By-Laws not inconsistent with
this Declaration of Trust containing provisions relating to the
business of the Trust, the conduct of its affairs, its rights or
powers and the rights or powers of its Shareholders, Trustees,
officers, employees and other agents and may amend and repeal them
to the extent that such By-Laws do not reserve that right to the
Shareholders; fill vacancies in their number, including vacancies
resulting from increases in their number, unless a vote of the
Trust's Shareholders is required to fill such vacancies pursuant to
the 1940 Act; elect and remove such officers and appoint and
terminate such agents as they consider appropriate; 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 powers and authority of the Trustees as the
Trustees may determine; appoint an advisory board, the members of
which shall not be Trustees and need not be Shareholders; employ
one or more investment advisers or managers as provided in Section
6 of this Article IV; employ one or more custodians of the assets
of the Trust and 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 services 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.
In furtherance of and not in limitation of the foregoing, the
Trustees shall have power and authority:
(a) To invest and reinvest in, to buy or otherwise acquire,
to hold, for investment or otherwise, to sell or otherwise dispose
of, to lend or to pledge, to trade in or deal in securities or
interests of all kinds, however evidenced, or obligations of all
kinds, however evidenced, or rights, warrants, or contracts to
acquire such securities, interests, or obligations, of any private
or public company, corporation, association, general or limited
partnership, trust or other enterprise or organization, foreign or
domestic, or issued or guaranteed by any national or state
government, foreign or domestic, or their agencies,
instrumentalities or subdivisions (including but not limited to,
bonds, debentures, bills, time notes and all other evidences of
indebtedness); negotiable or non-negotiable instruments; any and
all futures contracts; government securities and money market
instruments (including but not limited to, bank certificates of
deposit, finance paper, commercial paper, bankers acceptances, and
all kinds of repurchase agreements);
(b) To invest and reinvest in, to buy or otherwise acquire,
to hold, for investment or otherwise, to sell or otherwise dispose
of foreign currencies, and funds and exchanges, and make deposits
in banks, savings banks, trust companies, and savings and loan
associations, foreign or domestic;
(c) To acquire (by purchase, lease or otherwise) and to hold,
use, maintain, develop, and dispose of (by sale or otherwise) any
property, real or personal, and any interest therein;
(d) To sell, exchange, lend, pledge, mortgage, hypothecate,
write options on and lease any or all of the assets of the Trust;
(e) 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;
(f) To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of securities;
(g) 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, subcustodian or other depository or a nominee or
nominees or otherwise;
(h) To consent or to participate in any plan for the
reorganization, consolidation or merger of any corporation or
issuer, any security or property 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;
(l) To borrow funds;
(m) 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;
(n) 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 agents 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; and
(o) 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.
The Trustees shall not in any way be bound or limited by any
present future law or custom in regard to investments by trustees
of common law trusts. Except as otherwise provided herein or from
time to time 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 (if a quorum be 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 communicate with each other
simultaneously 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.
Payment of Expenses
Section 3. Consistent with the provisions of Section 3 of
Article III, the Trustees are authorized to pay or to cause to be
paid out of the principal or income of the Trust or of its
respective Series and Classes, 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, or in connection with the management thereof,
including, but not limited to, the Trustees' compensation and such
expenses and charges for the services of the Trust's officers,
employees, investment adviser or manager, 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.
Section 4. The Trustees shall have the power, as frequently
as they may determine, to cause each Shareholder to pay directly,
in advance or arrears, for charges of the Trust's custodian or
transfer or shareholder service or similar agent, an amount fixed
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.
Ownership of Assets of the Trust
Section 5. Title to all of the assets of each Series of the
Trust and of the Trust shall at all times be considered as vested
in the Trustees.
Advisory, Management and Distribution
Section 6. Subject to a favorable vote of a majority of the
outstanding voting securities of a Series of the Trust, the
Trustees may on behalf of such Series, at any time and from time to
time, contract for exclusive or nonexclusive advisory and/or
management services with a corporation, trust, association or other
organization, 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, including, without limitation, authority to determine
from time to time what investments shall be purchased, held, sold
or exchanged and what portion, if any, of the assets of such Series
shall be held uninvested and to make changes in such Series'
investments. The Trustees may also, at any time and from time to
time, contract with a 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:
(a) any of the Shareholders, Trustees or officers of the
Trust is a shareholder, director, officer, partner, trustee,
employee, manager, advisor, 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 or principal
underwriter's or distributor's contract, or transfer, Shareholder
services 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 interest in the Trust, or that
(b) any corporation, trust, association or other organization
with which an advisory or management or principal underwriter's or
distributor's contract, or transfer, Shareholder services 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 services or other
agency contract with one or more other corporations, trusts,
associations, or other organizations, or has other businesses 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
Voting Powers
Section 1. The Shareholders shall have power to vote only:
(a) for the election or removal of Trustees as provided in Article
IV, Section 1; (b) with respect to any investment advisor or
manager as provided in Article IV, Section 6; (c) with respect to
any termination or reorganization of the Trust or any series
thereof to the extent and as provided in Article IX, Section 1; (d)
with respect to any amendment of this Declaration of Trust to the
extent and as provided in Article IX, Section 4; (e) to the same
extent as the stockholders of a Massachusetts business corporation
as to whether or not a court action, proceeding or claim should or
should not be brought or maintained derivatively or as a class
action on behalf of the Trust or the Shareholders; and (f) with
respect to such additional matters relating to the Trust as may be
required by law, the 1940 Act, this Declaration of Trust, the By-
Laws or any then-effective registration of the Trust filed with the
Securities and Exchange Commission (or any successor agency) or any
state, or as the Trustees may consider necessary or desirable.
Each whole share shall be entitled to one vote as to any
matter on which it is entitled to vote and each fractional share
shall be entitled to a proportionate fractional vote.
Notwithstanding any other provision of the Declaration of Trust, on
any matter submitted to a vote of Shareholders all Shares of the
Trust then entitled to vote shall be voted by individual Series and
not in the aggregate, except (a) when required by the 1940 Act,
Shares shall be voted in the aggregate and not by individual
Series; and (b) when the Trustees have determined that the matter
affects only the interests of one or more Series or Class of
Series, then only Shareholders of such Series or Class shall be
entitled to vote thereon. There shall be no cumulative voting in
the election of Trustees. Shares may be voted in person or by
proxy.
A proxy with respect to Shares held in the name of two or more
persons shall be valid if executed by any one of them unless at or
prior to the exercise of the proxy the Trust receives a specific
written notice to the contrary from any one of them. A proxy
purporting to be executed by or on behalf of a Shareholder shall be
deemed valid unless challenged at or prior to its exercise and the
burden of proving invalidity shall rest on the challenger.
Until Shares are issued, the Trustees may exercise all rights
of Shareholders and may take any action required by law, this
Declaration of Trust or the By-Laws to be taken by Shareholders.
Shareholder Meetings
Section 2. Meetings of Shareholders (including meetings
involving only one or more but less than all Series or Classes) may
be called and held from time to time for the purpose of taking
action upon any matter requiring the vote or authority of the
Shareholders as herein provided or upon any other matter deemed by
the Trustees to be necessary or desirable. Such meetings shall be
held at the principal office of the Trust as set forth in the By-
Laws of the Trust, or at any such other place within the United
States as may be designated in the call thereof, which call shall
be made by the Trustees or the Chairman of the Trust. Meetings of
Shareholders may be called by the Trustees or such other person or
persons as may be specified in the By-Laws and shall be called by
the Trustees or such other person or persons as may be specified in
the By-Laws upon written application by Shareholders holding at
least 25% (or ten percent (10%) if the purpose of the meeting is to
determine if a Trustee is to be removed from office) of the Shares
then outstanding requesting a meeting be called for a purpose
requiring action by the Shareholders as provided herein or in the
By-Laws which purpose shall be specified in any such written
application.
Shareholders shall be entitled to at least seven days' written
notice of any meeting of the Shareholders.
Quorum and Required Vote
Section 3. The presence at a meeting of Shareholders in
person or by proxy of Shareholders entitled to vote at least thirty
percent (30%) of all votes entitled to be cast at the meeting of
each Series or Class entitled to vote as a Series or Class shall be
a quorum for the transaction of business at a Shareholders'
meeting, except that where any provision of law or of this
Declaration of Trust permits or requires that the holders of Shares
shall vote in the aggregate and not as a Series or Class, then the
presence in person or by proxy of Shareholders entitled to vote at
least thirty percent (30%) of all votes entitled to be cast at the
meeting (without regard to Series or Class) shall constitute a
quorum. Any lesser number, however, shall be sufficient for
adjournments. Any adjourned session or sessions may be held within
a reasonable time after the date set for the original meeting
without the necessity of further notice. Notwithstanding the
foregoing, if any action to be taken by the Shareholders or by a
Series or Class at a meeting requires the affirmative vote of more
than 50% of all the votes entitled to be cast on the matter or
requires a majority of the outstanding voting securities (as
defined in the 1940 Act), then in such event the presence in person
or by proxy of the holders of a majority of the shares outstanding
and entitled to vote at such a meeting shall be a quorum for all
purposes.
Except when a larger vote is required by any provisions of the
1940 Act, this Declaration of Trust or the By-Laws, a majority of
the Shares of each Series or Class voted on any matter shall decide
such matter insofar as that Series or Class is concerned, provided
that where any provision of law or of this Declaration of Trust
permits or requires that the holders of Shares vote in the
aggregate and not as a Series or Class, then a majority of the
Shares voted on the matter (without regard to Series or Class)
shall decide such matter and a plurality shall elect a Trustee.
Action by Written Consent
Section 4. Any action taken by Shareholders may be taken
without a meeting if Shareholders entitled to vote more than fifty
percent (50%) of the votes entitled to be cast on the matter of
each Series or Class or, where any provision of law or of this
Declaration of Trust permits or requires that the holders of Shares
vote in the aggregate and not as a Series or Class, if Shareholders
entitled to vote more than fifty percent (50%) of the votes
entitled to be cast thereon (without regard to Series or Class) (or
in either case such larger vote as shall be required by any
provision of this Declaration of Trust or the By-Laws) consent to
the action in writing and such written consents are filed with the
records of the meetings of Shareholders. Such consent shall be
treated for all purposes as a vote taken at a meeting of
Shareholders.
Additional Provisions
Section 5. The By-Laws may include further provisions for
Shareholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
ARTICLE VI
Redemptions and Repurchases, and
Determination of Net Asset Value
Redemptions and Repurchases
Section 1. Any holder of Shares of the Trust may by
presentation of a request in proper form, together with his or her
certificates, if any, for such Shares, in proper form, for transfer
to the Trust or duly authorized agent of the Trust, request
redemption of his or her shares for the net asset value thereof
determined and computed in accordance with the provisions of this
Section 1 and the provisions of Section 5 of this Article VI.
Upon receipt by the Trust or its duly authorized agent, as the
case may be, of such a request for redemption of Shares in proper
form, such Shares shall be redeemed at the net asset value per
share of the particular Series or Class next determined after such
request is received or determined as of such other time fixed by
the Trustees as may be permitted or required by the 0000 Xxx. The
criteria for determining what constitutes a proper request for
redemption and the time of receipt of such request shall be fixed
by the Trustees, and such criteria may be established in the
Trust's then current prospectus or established by the Trust's
distributor or transfer agent, subject to approval by the Trustees.
This obligation of the Trust to redeem its Shares of each
Series or Class as set forth above in this Section 1 shall be
subject to the condition that such obligation may be suspended by
the Trust by or under authority of the Trustees during any period
or periods when and to the extent permissible under the 1940 Act.
If there is such a suspension, any Shareholder may withdraw any
request for redemption which has been received by the Trust during
any such period and the applicable net asset value with respect to
which would but for such suspension be calculated as of a time
during such period. Upon such withdrawal, the Trust shall return
to the Shareholder the certificates therefor, if any.
The Trust may also purchase, repurchase or redeem Shares in
accordance with such other methods, upon such other terms and
subject to such other conditions as the Trustees may from time to
time authorize 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. Shares of any Series or Class
redeemed or repurchased by the Trust hereunder shall be canceled
upon such redemption or repurchase without further action by the
Trust or the Trustees and the number of issued and outstanding
Shares of such Series shall thereupon be reduced by such amount, or
Shares redeemed or repurchased may be held by the Trust for resale.
Payment for Shares Redeemed
Section 2. Payment of the redemption price for Shares
redeemed pursuant to this Article VI shall be made by the Trust or
its duly authorized agent after receipt by the Trust or its duly
authorized agent of a request for redemption in proper for
(together with any certificates for such Shares as provided in
Section 1 above) in accordance with procedures and subject to
conditions prescribed by the Trustees; provided, however, that
payment may be postponed during the period in which the redemption
of Shares is suspended under Section 1 above. Subject to any
generally applicable limitation imposed by the Trustees, any
payment on redemption, purchase or repurchase by the Trust of
Shares may, if authorized by the Trustees, be made wholly or partly
in kind, instead of cash. Such payment in kind shall be made by
distributing securities or other property, constituting, in the
opinion of the Trustees, a fair representation of the various types
of securities and other property then held by the Series of Shares
being redeemed, purchased or repurchased (but not necessarily
involving a portion of each of the Series' holdings) and taken at
their value used in determining the net asset value of the Shares
in respect of which payment is made.
Redemptions at the Option of the Trust
Section 3. The Trust shall have the right at its option and
at any time and from time to time to redeem Shares of any
Shareholder at the net asset value thereof as determined in
accordance with Section 5 of this Article VI, if at such time such
Shareholder owns fewer Shares of a Series or Class than, or Shares
of a Series or Class having an aggregate net asset value of less
than, an amount determined from time to time by the Trustees. Any
such redemption at the option of the Trust shall be made in
accordance with such other criteria and procedures for determining
the Shares to be redeemed, the redemption date and the means of
effecting such redemptions as the Trustees may from time to time
authorize.
Additional Provisions Relating to Redemptions and Repurchases
Section 4. The completion of redemption, purchase or
repurchase of Shares shall constitute a full discharge of the Trust
and the Trustees with respect to such Shares. No dividend or
distribution (including, without limitation, any distribution paid
upon termination of the Trust or of any Series or Class) with
respect to, nor any redemption or repurchase of, the Shares of any
Series or Class shall be effected by the Trust other than from the
assets of such Series.
Determination of Net Asset Value
Section 5. The term "net asset value" of each Share or a
Series or Class as of any particular time shall be the quotient,
rounded to such extent as the Trustees shall determine from time to
time in a manner consistent with the 1940 Act, obtained by dividing
the value, as at such time, of the net assets of such Series or
Class (i.e., the value of the assets of such Series less the
liabilities chargeable or allocated to such Series or Class
pursuant to the provisions of Article III, exclusive of liabilities
represented by the Shares of such Series or Class) by the total
number of Shares of such Series outstanding at such time, all
determined and computed in accordance with the Trust's current
prospectus and statement of additional information.
The Trustees, or any officer, or officers or agent of the
Trust designated for the purpose by the Trustees shall determine
the net asset value of the Shares of each Series or Class, and the
Trustees shall fix the time or times as of which the net asset
value of the Shares of each Series or Class shall be determined
and shall fix the periods during which any such net asset value
shall be effective as to sales, redemptions and repurchases of, and
other transactions in, the Shares of such Series of Class, except
as such time and periods for any such transaction may be fixed by
other provision of this Declaration of Trust or by the By-Laws.
Determinations in accordance with this Section 5 made in good
faith shall be binding on all parties concerned.
How Long Shares are Outstanding
Section 6. Shares of the Trust surrendered to the Trust for
redemption by it pursuant to the provisions of Section 1 of this
Article VI shall be deemed to be outstanding until the redemption
price thereof is determined pursuant to this Article VI and,
thereupon and until paid, the redemption price thereof shall be
deemed to be a liability of the Trust. Shares of the Trust
purchased by the Trust in the open market shall be deemed to be
outstanding until confirmation of purchase thereof by the Trust
and, thereupon and until paid, the purchase price thereof shall be
deemed to be a liability of the Trust. Shares of the Trust
redeemed by the Trust pursuant to Section 3 of this Article VI
shall be deemed to be outstanding until said Shares are deemed to
be redeemed in accordance with procedures adopted by the Trustees
pursuant to said Section 3.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
Compensation
Section 1. The Trustees as such shall be entitled to
reasonable compensation from the Trust if the rate thereof is
prescribed in advance by such Trustees. Nothing herein shall in
any way prevent the employment of any Trustee for advisory,
management, legal, accounting, investment banking or other services
and payment for the same by the Trust, it being recognized that
such employment may result in such Trustee being considered an
Affiliated Person or an Interested Person.
Limitation of Liability
Section 2. The Trustees shall not be responsible or liable in
any event for any neglect or wrongdoing of any officer, agent,
employee, investment advisor or manager, principal underwriter or
custodian, nor shall any Trustee be responsible for the act or
omission of any other Trustee. 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, Share 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 neither such Trustees or
Trustee nor the Shareholders shall be personally liable thereon.
Every note, bond, contract, instrument, certificate or
undertaking made or issued by the Trustees or by any officers or
officer 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 by them as Trustees or Trustee 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 or a
particular Series or Shares, 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 Trustees or Trustee or officers or
officer of Shareholders or Shareholder individually.
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 of that
particular Series of Shares, as the case may be, for payment under
such credit, contract or claim; and neither the Shareholders nor
the Trustees, nor any of the Trust's officers, employees or agents,
whether past present or future, shall be personally liable
therefor.
Trustees' Good Faith Action, Expert Advice, No Bond or Surety
Section 3. The exercise by the Trustees of their powers and
discretion hereunder shall be binding upon everyone interested. A
Trustee shall be liable only for or her his own willful
misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of the office of Trustee, and
for nothing else, and shall not be liable for errors of judgment or
mistakes of fact or law. The Trustees may take advice of counsel
or other experts with respect to the meaning and operation of this
Declaration of Trust and their duties as Trustees hereunder, and
shall be under no liability for any act or omission in accordance
with such advice of for failing to follow such advice. In
discharging their duties, the Trustees, when acting in good faith,
shall be entitled to rely upon the books of account of the Trust
and upon written reports made to the Trustees by any officer
appointed by them, any independent public accountant and (with
respect to the subject matter of the contract involved) any
officer, partner or responsible employee of any other party to any
contract entered into pursuant to Section 2 of Article IV. The
Trustees shall not be required to give any bond as such, nor any
surety if a bond is required.
Liability of Third Persons Dealing with Trustees
Section 4. 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.
ARTICLE VIII
Indemnification
Subject to the exceptions and limitations contained in this
Article, every person who is, or has been, a Trustee or officer of
the Trust (including persons who serve at the request of the Trust
as directors, officers or trustees of another organization in which
the Trust has an interest as a shareholder, creditor or otherwise)
hereinafter referred to as a "Covered Person," shall be indemnified
by the Trust to the fullest extent permitted by law against
liability and against all expenses reasonably incurred or paid by
him or her in connection with any claim, action, suit or
proceedings in which he or she becomes involved as a party or
otherwise by virtue of his or her being or having been such a
Trustee, director or officer and against amounts paid or incurred
by him or her in settlement thereof.
No indemnification shall be provided to a Covered Person:
(a) against any liability to the Trust or its Shareholders by
reason of a final adjudication by the court of other body before
which the proceeding was brought that he or she engaged in willful
misfeasance bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of his or her office;
(b) with respect to any matter as to which he or she shall
have been finally adjudicated not to have acted in good faith in
the reasonable belief that his or her action was in the best
interests of the Trust; or
(c) in the event of a settlement or other disposition not
involving a final adjudication (as provided in paragraph (a) or
(b)) and resulting in a payment by a Covered Person, unless there
has been either a determination that such Covered Person did not
engage in willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his or
her office by the court of other body approving the settlement or
other disposition or a reasonable determination, based on a review
of readily available facts (as opposed to a full trial-type
inquiry) that he or she did not engage in such conduct:
(i) by a vote of a majority of the Disinterested
Trustees acting on the matter (provided that a majority of the
Disinterested Trustees then in office act on the matter); or
(ii) by written opinion of independent legal counsel.
The rights of indemnification herein provided may be insured
against by policies maintained by the Trust, shall be severable,
shall not affect any other rights to which any Covered Person may
now or hereafter be entitled, shall continue as to a person who has
ceased to be such a Covered Person and shall inure to the benefit
of the heirs, executors and administrators of such a person.
Nothing contained herein shall affect any rights to indemnification
to which the Trust personnel other than Covered Persons may be
entitled by contract or otherwise under law.
Expenses of preparation and presentation of a defense to any
claim, action, suit or proceeding subject to a claim for
indemnification under this Article shall be advanced by the Trust
prior to final disposition thereof upon receipt of an undertaking
by or on behalf of the recipient to repay such amount if it is
ultimately determined that he or she is not entitled to
indemnification under this Article, provided that either:
(1) such undertaking is secured by a surety bond or some
other appropriate security or the Trust shall be insured
against losses arising out of any such advances; or
(2) 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 determine, based upon
a review of the readily available facts (as opposed to a full
trial-type inquiry), that there is reason to believe that the
recipient ultimately will be found entitled to
indemnification.
As used in this Article, a "Disinterested Trustee" is one (a)
who is not an "interested person" of the Trust (as defined by the
1940 Act including anyone who has been exempted from being an
"interested person" by any rule, regulation or order of the
Securities and Exchange Commission), and (b) 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.
As used in this Article, the words "claim," "action," "suit"
or "proceeding" shall apply to all claims, actions, suits or
proceedings (civil, criminal or other, including appeals), actual
or threatened; and the words "liability" and "expenses" shall
include without limitation attorneys' fees, costs, judgments,
amounts paid in settlement, fines, penalties and other liabilities.
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 heirs, executors, administrators or other legal
representatives or in the case of a corporation or other entity,
its corporate or other general successor) shall be entitled out of
the assets of the particular Series of Shares of which he or she is
or was a Shareholder to be held harmless from and indemnified
against all loss and expense arising from such liability; provided,
however, there shall be no liability or obligation of the Trust
arising hereunder to reimburse any Shareholder for taxes paid by
reason of such Shareholder's ownership of Shares or for losses
suffered by reason of any changes in value of any trust assets.
Article IX
Miscellaneous
Duration, Termination and Reorganization of Trust
Section 1. Unless terminated as provided herein, the Trust
shall continue without limitation of time. The Trust may be
terminated at any time by the Trustees by written notice to the
Shareholders without a vote of the Shareholders of the Trust or by
the vote of the Shareholders entitled to vote more than fifty
percent (50%) of the votes of each Series entitled to be cast on
the matter. Any Series or Class of Shares may be terminated at any
time by the Trustees by written notice to the Shareholders of such
Series or Class without a vote of the Shareholders of such Series
or Class or by the vote of the Shareholders of such Series or Class
entitled to vote more than fifty percent (50%) of the votes
entitled to be cast on the matter.
Upon termination of the Trust or of any one or more Series or
Classes of Shares, after paying or otherwise providing for all
charges, taxes, expenses and liabilities, whether due or accrued or
anticipated, of the particular Series or Class as may be determined
by the Trustees, the Trust shall in accordance with such procedures
as the Trustees consider appropriate reduce the remaining assets of
the particular Series to distributable form in cash 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.
At any time by the affirmative vote of the Shareholders of the
affected Series entitled to vote more than fifty percent (50%) of
all the votes entitled to be cast on the matter, the Trustees may
sell, convey and transfer the assets of the Trust, or the assets
belonging to any one or more Series, to another trust, partnership,
association or corporation organized under the laws of any state of
the United States, or to the Trust to be held as assets belonging
to another Series of the Trust, in exchange for cash, shares or
other securities (including, in the case of a transfer to another
Series of the Trust, in exchange for cash, shares or other
securities (including, in the case of a transfer to another Series
of the Trust, Shares of such other Series)) with such transfer
being made subject to, or with the assumption by the transferee of,
the liabilities belonging to each Series the assets of which are so
distributed. Following such transfer, the Trustees shall
distribute such cash, shares or other securities (giving due effect
to the assets and liabilities belonging to and any other
differences among the various Series the assets belonging to which
have so been transferred) among the Shareholders of the Series the
assets belonging to which have been so transferred; and if all of
the assets of the Trust have been so transferred, the Trust shall
be terminated.
Filing of Copies, References, Headings
Section 2. 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 from time to time.
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.
Applicable Law
Section 3. 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.
Amendments
Section 4. 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 so to do by vote of Shareholders holding
more than a majority of the outstanding voting securities (as
defined in the 0000 Xxx) of each Series entitled to vote, except
that an amendment which shall affect the holders of one or more
Series of Classes of Shares but not the holders of all outstanding
Series and Classes shall be authorized by vote of the Shareholders
holding more than a majority of the outstanding voting securities
(as defined in the 0000 Xxx) of the Shares entitled to vote of each
Series or Class 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 provision
which is defective or inconsistent with the 1940 Act or with the
requirements of the Internal Revenue Code and the regulations
thereunder for the trust's obtaining the most favorable treatment
thereunder available to regulated investment companies or of
establishing and designating or abolishing any Series of Shares in
accordance with Section 1 of Article III hereof shall not require
authorization by Shareholder vote.
Use of the Name
Section 5. The use of the name of the Trust and of any Series
or Class of shares of the Trust is granted pursuant to a royalty-
free, non-exclusive license from Xxxxxxxxxxx Management Corporation
("OMC"), and such license shall allow OMC to inspect and, subject
to the control of the Trustees, to control the nature and quality
of services offered by the Trust under such name. The license may
be terminated by OMC upon termination of any advisory, management
or supervisory contact between OMC and the Trust or without cause
upon 60 days' written notice to the Trust by OMC in which case
neither the Trust nor any Series or class of the Trust shall have
any further right to use the name "Xxxxxxxxxxx" in its name or
otherwise, and the Trust, its Shareholders, and its officers and
Trustees shall promptly take whatever action may be necessary to
change its name accordingly.
orgzn\860-865.996
IN WITNESS WHEREOF, the undersigned have executed this
instrument as of the 16th day of September, 1996.
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx Xxxxxx, Xx.
---------------------------- ---------------------------
Xxxxxxx X. Xxxxx, Trustee Xxxxxxx Xxxxxx, Xx., Trustee
000 Xxxxxx Xxxxx Xxxxx 000 Xxxxx Xxxxxx
Xxxx Xxxxxxx, Xxxxxxxxxx 00000 Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
/s/ Xxx X. Steel /s/ Xxxxxx X. Xxxxxxxx
--------------------------- ---------------------------
Xxx X. Steel, Trustee Xxxxxx X. Xxxxxxxx, Trustee
0000 X. Xxxxxx Xxxxxx 0000 X. Xxxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxxx 00000
/s/ Xxxxxxx X. Xxxxxxxxxx /s/ C. Xxxxxx Xxxx
------------------------------ ---------------------------
Xxxxxxx X. Xxxxxxxxxx, Trustee C. Xxxxxx Xxxx, Trustee
00 Xxxxxxxx Xxxxx 0000 Xxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx Xxxxxx, Xxxxxxxx 00000
/s/ Xxxxx X. Xxxxx /s/ Xxxxxx X. Xxxx
------------------------------- ---------------------------
Xxxxx X. Xxxxx, Trustee Xxxxxx X. Xxxx, Trustee
23554 Wayne's Way 0000 Xxxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000 Xx. Xxxxx, XX 00000
/s/ Xxx X. Xxxxxx /s/ Xxx Xxxxxxxx
----------------------------- -----------------------------
Xxx X. Xxxxxx, Trustee Xxx Xxxxxxxx, Trustee
Box 44 - Xxxx Street 0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxxxxxxx 00000
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X.Xxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
orgzn\860-865.996