Exhibit
Number Exhibit
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(a) Agreement and Declaration of Trust for Registrant
dated August 10, 1990
Exhibit (a)
XXXXXX MANAGED PORTFOLIOS
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made this 10th day of August, 1990, by
the Trustee whose signature is 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 to be issued hereunder as
hereinafter provided.
WITNESSETH
WHEREAS, the Trustees hereunder are desirous of forming a trust for the
purposes of carrying on the business of a management investment company; and
WHEREAS, in furtherance of such purposes, the Trustees are acquiring 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.
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 this Trust as hereinafter set
forth.
ARTICLE I
NAME AND DEFINITIONS
NAME AND REGISTERED AGENT
Section 1. This Trust shall be known as "Xxxxxx Managed Portfolios" 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 CT Corporation System, 0 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx, 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
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 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 is
authorized under or pursuant to Article III, the equal
proportionate transferable units of interest into which each such
series 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 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" 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; and
(i) "Net asset value" shall have the meaning set forth in Section 6
of Article VI hereof.
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 things as are necessary, convenient, appropriate,
incidental or customary in connection therewith.
ARTICLE III
SHARES
DIVISION OF BENEFICIAL INTEREST
SECTION 1. The Shares of the Trust shall be issued in one or more series
as the Trustees may, without Shareholder approval, authorize from time to
time. Each series shall be preferred over all other series in respect of the
assets allocated to that series as hereinafter provided. The beneficial
interest in each series shall at all times be divided into Shares (without par
value) of such series, each of which shall represent an equal proportionate
interest in such series with each other Share of the same series, none having
priority or preference over another Share of the same series. The number of
Shares authorized shall be unlimited, and the Shares so authorized may be
represented in part by fractional Shares. The Trustees may from time to time
divide or combine the Shares of any series into a greater or lesser number
without thereby changing the proportionate beneficial interests in the series.
Without limiting the authority of the Trustees set forth in this Section 1 to
establish and designate any further series, the Trustees hereby establish and
designate a single series of Shares to be known as the "The Kansas Municipal
Fund." The establishment and designation of any series of Shares in addition
to the foregoing shall be effective upon the execution by a majority of the
then Trustees of an instrument setting forth such establishment and
designation and the relative rights and preferences of such series. As
provided in Article IX, Section 1 hereof, any series of Shares (whether or
not there shall then be Shares outstanding of said series) may be terminated
by the Trustees by written notice to the Shareholders of such series or by
the vote of the Shareholders of such series entitled to vote more than fifty
percent (50%) of the votes entitled to be cast on the matter. In the event
of any such termination, a majority of the then Trustees shall execute an
instrument setting forth the termination of such series.
OWNERSHIP OR SHARES
SECTION 2. The ownership and transfer of Shares shall be recorded on the
books of the Trust or its 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 of the Trust, 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.
INVESTMENTS IN THE TRUST; ASSETS OF A SERIES
SECTION 3. The Trustees may issue 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 time to time authorize.
All consideration received by the Trust for the issue or sale of Shares
of a particular 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 such series of Shares 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.
RIGHT TO REFUSE ORDERS
Section 4. 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 therefore 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 Trust may from time to time
set minimum and/or maximum amounts which may be invested in Shares by a
subscriber.
TIME FOR DETERMINING SALES PRICE
SECTION 5. 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 6. 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.
WHEN SHARES BECOME OUTSTANDING
SECTION 7. 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 therefore 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 8. 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 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.
NO PREEMPTIVE RIGHTS, ETC.
SECTION 9. Shareholders shall have no preemptive or other right 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 and, except as otherwise determined by the Trustees in their sole
discretion, shall have no exchange or conversion rights with respect to their
Shares.
STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY
SECTION 10. 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 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 11. Any Shareholder or his 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 or 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 11 of this Article III or except as
otherwise determined by the Trustees.
ARTICLE IV
THE TRUSTEES
NUMBER, DESIGNATION, ELECTION, TERM, ETC.
SECTION 1.
(a) Initial Trustee. Upon his execution of this Declaration of Trust
or a counterpart hereof or some other writing in which he accepts
such Trusteeship and agrees to the provisions hereof, Xxxx X
Xxxxxx shall become a Trustee hereof.
(b) Number. The Trustees serving as such, whether named above or
hereafter becoming Trustees, may increase or decrease the number
of Trustees to a number other than the number heretofore
determined which number shall not be less than three nor more
than fifteen except during the period that the initial Trustee
named above is sole Trustee. No decrease in the number of
Trustees shall have the effect of removing any Trustee from
office prior to the expiration of his term, but the number of
Trustees may be decreased in conjunction with the removal of a
Trustee pursuant to subsection (e) of this Section 1.
(c) Term. Each Trustee, whether named above or hereafter becoming a
Trustee. 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
Trustee) without any further act or conveyance. Prior to any
sale of Shares pursuant to any public offering, the initial
Trustee named above shall have the right to appoint other
persons as Trustees each to serve with such initial Trustee as
aforesaid until the first meeting of Shareholders called for the
purpose of the election or re-election of such Trustee or of a
successor to such Trustee.
(d) Resignation and Retirement. Any Trustee may resign his trust or
retire as a Trustee, by written instrument signed by him 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.
(e) 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 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.
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 Investment Company Act of
1940 as amended.
(f) 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.
(g) 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.
(h) 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.
(i) No Accounting. Except under circumstances which would justify his
removal for cause, no person ceasing to be a Trustee as a result
of his 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 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 shall be payable solely out of
the assets of that series;
(i) To consent to or 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;
(j) To join with other security holders in acting through a
committee, depository, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security
to, any such committee, depository 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, depository or
trustee as the Trustees shall deem proper;
(k) 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;
(l) To enter into joint ventures, general or limited partnerships
and any other combinations or associations;
(m) To borrow funds;
(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 or all of 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; and
(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.
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 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, ALLOCATION OF LIABILITIES
SECTION 3. 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, 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.
The assets of a particular series of Shares shall be charged with the
liabilities (including, in the discretion of the Trustees, or their delegate,
accrued expenses and reserves) incurred in respect of such series (but not with
liabilities incurred in respect of any other series) and such series shall also
be charged with its share of any other liabilities. The determination of the
Trustees shall be final and conclusive as to the amount of liabilities to be
charged to one or more particular series. The Trustees may delegate from time
to time the power to make such allocation to one or more Trustees or to an
agent of the Trust appointed for such purpose. The liabilities with which a
series is so charged are herein referred to as the "liabilities of" such
series.
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 univested 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, 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 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 an 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 adviser 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 registration of the Trust 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 in the aggregate and
not by individual series, except (a) when required by the 1940 Act, Shares
shall be voted by individual series and not in the aggregate; and (b) when
the Trustees have determined that the matter affects only the interest of one
or more series, then only Shareholders of such series 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) 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 entitled to vote as a series
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, 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) 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.
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 voted on any matter shall decide such matter insofar as that series is
concerned, provided that where any provision of law or of this Declaration of
Trust permits or requires that the holders of Share vote in the aggregate and
not as a series, then a majority of the Shares voted on the matter (without
regard to series) 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, 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, if Shareholders entitled to
vote more than fifty percent (50%) of the votes entitled to be cast thereon
(without regard to series) (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
DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES,
AND DETERMINATION OF NET ASSET VALUE
DISTRIBUTIONS
SECTION 1. The Trustees may in their sole discretion from time to time
distribute to the Shareholders of any series such income and gains, accrued or
realized, as the Trustees may determine, after providing for actual and
accrued expenses and liabilities of such series (including such reserves as
the Trustees may establish) determined in accordance with this Declaration of
Trust and 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
to any series, if any be made, shall be in Shares of such series, in cash or
otherwise and on a date or dates determined by the Trustees. At any time and
from time to time in their discretion, the Trustees may distribute to the
Shareholders of any series as of a record date or dates determined by the
Trustees, in Shares of such series. in cash or otherwise, all or part of any
gains realized on the sale or disposition of property of the series or
otherwise, or all or part of any other principal of the Trust attributable to
the series. Each distribution pursuant to this Section 1 shall be made ratably
according to the number of Shares of the series held by the several
Shareholders on the applicable record date thereof, provided that distributions
from assets of a series may only be made to the holders of the Shares of such
series and provided that no distributions need be made on Shares purchased
pursuant to orders received, or for which payment is made, after such time
or times as the Trustees may determine. Any distribution paid in Shares will
be paid at the net asset value thereof as determined in accordance with this
Declaration of Trust. The Trustees have the power, in their discretion, to
distribute for any year amounts sufficient to enable the Trust as a "regulated
investment company" under the Internal Revenue Code of 1986 as amended (or any
successor thereto) to avoid any liability for federal income tax in respect of
that year.
REDEMPTIONS AND REPURCHASES
SECTION 2. Any holder of Shares of the Trust may by presentation of a request
in proper form, together with his 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 shares for the net asset value thereof determined
and computed in accordance with the provisions of this Section 2 and the
provisions of Section 6 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
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.
The obligation of the Trust to redeem its Shares of each series as set
forth above in this Section 2 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 redeemed
or repurchased by the Trust hereunder shall be cancelled 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.
PAYMENT FOR SHARES REDEEMED
SECTION 3. 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 form (together with any certificates for such shares as provided in
Section 2 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
2 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 in 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 4. 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 6 of this Article VI,
if at such time such Shareholder owns fewer Shares of a series than, or Shares
of a series 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 redemption as the Trustees may from
time to time authorize.
ADDITIONAL PROVISIONS RELATING TO REDEMPTIONS AND REPURCHASES
SECTION 5. 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) 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 of such series.
DETERMINATION OF NET ASSET VALUE
SECTION 6. The term "net asset value" of each Share of a series 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 (i.e., the value of the assets of such series less the liabilities of
such series, exclusive of liabilities represented by the Shares of such series)
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.
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, and the Trustees shall fix the time or times as of
which the net asset value of the Shares of each series 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, except as such times and periods for any such
transaction may be fixed by other provisions of this Declaration of Trust or
by the By-Laws.
Determinations in accordance with this Section 6 made in good faith shall
be binding on all parties concerned.
HOW LONG SHARES ARE OUTSTANDING
SECTION 7. Shares of the Trust surrendered to the Trust for redemption by
it pursuant to the provisions of Section 2 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 redemption price thereof shall be deemed to be a liability of the Trust.
Shares of the Trust redeemed by the Trust pursuant to Section 4 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 4.
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 adviser
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 of 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 or 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 agent, 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 discretions
hereunder shall be binding upon everyone interested. A Trustee shall be liable
only for 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 or 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 paaty 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 expenses reasonably incurred
or paid by him in connection with any claim, action, suit or proceeding in
which he becomes involved as a Party or otherwise by virtue of his being or
having been such a Trustee, director or officer and against amounts paid or
incurred by him in settlement thereof.
No indemnification shall be provided hereunder to a Covered Person:
(a) against any liability to the Trust or its Shareholders by
reason of a final adjudication by the court or other body before
which the proceeding was brought that he engaged in willful
misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of his office;
(b) with respect to any matter as to which he shall have been
finally adjudicated not to have acted in good faith in the
reasonable belief that his action was in the best 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 office by
the court or 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 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 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 is not entitled to
indemnification under this Article, provided that either:
(a) 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
(b) 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, judgment, accounts 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 of Shares may be terminated at any time by the
Trustees by written notice to the Shareholders of such series without a vote
of the Shareholders of such series or by the vote of the Shareholders of such
series 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 of Shares, after
paying or otherwise providing for all charges, taxes, expenses and liabilities,
whether due or accrued or anticipated, of the particular series as may he
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 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, Shares
of such other series) with such transfer being made subject to, or with the
assumption by the transferee of, the liability 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 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 stall 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 made in The Commonwealth of
Massachusetts, and it is created under and is to be governed by and construed
and administered according to the laws of said Commonwealth.
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 fifty percent
(50%) 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 more than fifty percent (50%) 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 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. Trust is adopting its trust name and the name of the first Series
of the proposed fund by permission of Xxxxxx Capital Corporation ("'RCC"), and
the Trust's right to use the name "Xxxxxx Managed Portfolios" and the name
"The Kansas Municipal Fund" is subject to the right of RCC or its successors
or assigns at any time to control the usage of the name "Xxxxxx Managed
Portfolios" and the name "The Kansas Municipal Fund" by the Trust and to
direct that the Trust stop using the name "Xxxxxx Managed Portfolios" and,
or the name "The Kansas Municipal Fund" in any form or combination as part
of its name, service xxxx, as a Series of a Fund, and in any literature or
reference whatsoever. All proprietary interest in the names "Xxxxxx Managed
Portfolios" and "The Kansas Municipal Fund" shall remain exclusively the
property of RCC and at the written request of RCC or its successors or assigns,
delivered to the Trust at its registered office in Boston, Massachusetts, if
any, and if none, at its principal office, the Trust shall forthwith stop using
the name "Xxxxxx Managed Portfolios" and, or the name "The Kansas Municipal
Fund" in accordance with the provisions of such request. The provisions hereof
are binding upon the Trust, its trustees, officers, Shareholders, creditors,
successors or assigns and all other persons claiming under or through it. The
terms of this Section 5 do not preclude the use of the names "Xxxxxx Managed
Portfolios" or "The Kansas Municipal Fund" by any other person or organization,
whether now existing or hereafter created, to which RCC may grant the right to
such name.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal for
himself and his assigns, as of the day and year first above written.
(SEAL) /s/Xxxx X. Xxxxxx
-----------------
Xxxx X. Xxxxxx
Suite 45O
120 S. Market
Wichita, Kansas 67202
STATE OF KANSAS )
) SS.
COUNTY OF SEDGWICK )
Then personally appeared the above-named Xxxx X. Xxxxxx who acknowledged the
foregoing instrument to be his free act and deed, before me this 10th day of
August, 1990.
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------
Notary Public
My Commission Expires:
March 11, 1991
