Exhibit (a)(1)
NVEST COMPANIES TRUST I
AGREEMENT AND DECLARATION OF TRUST
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THIS AGREEMENT AND DECLARATION OF TRUST made at Boston, Massachusetts this
17th day of March, 2000 by the Trustees whose signature is affixed hereto and
the holders of shares of beneficial interest issued hereunder and to be issued
hereunder as hereinafter provided:
WITNESSETH that
WHEREAS, this Trust has been formed to carry on the business of an
investment company; and
WHEREAS, the Trustees have agreed to manage all property coming into their
hands as trustees of a Massachusetts voluntary association with transferable
shares in accordance with the provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash,
securities and other assets, which they may from time to time acquire in any
manner as Trustees hereunder, IN TRUST to manage and dispose of the same upon
the following terms and conditions for the benefit of the holders from time to
time of shares in this Trust as hereinafter set forth.
ARTICLE I
Name and Definitions
Section 1.
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This Trust shall be known as "Nvest Companies Trust I" and the Trustees
shall conduct the business of the Trust under that name or any other name as
they may from time to time determine.
Section 2. Definitions.
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Whenever used herein, unless otherwise required by the context or specifically
provided:
(a) "By-Laws" shall mean the By-Laws of the Trust, if any, as amended from
time to time;
(b) The terms "Class" and "Class of Shares" refer to each class of Shares
into which the Shares of any Multi-Class Series may from time to time be divided
in accordance with the provisions hereof.
(c) The terms "Commission," "Majority Shareholder Vote" (the 67% or 50%
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requirement of the third sentence of Section 2(a)(42) of the 1940 Act, whichever
may be applicable) and "Principal Underwriter" shall have the meanings given
them in the 1940 Act, as defined herein;
(d) "Declaration of Trust" or "Declaration" shall mean this Agreement and
Declaration of Trust, as amended or restated from time to time;
(e) "Multi-Class Series" refers to each Series of Shares established and
designated as Multi-Class Series under or in accordance with the provisions
hereof;
(f) "Shareholder" means a record owner of Shares;
(g) "Shares" means the equal proportionate transferable units of interest
into which the beneficial interest in the Trust or in the Trust property
belonging to any Series of the Trust shall be divided from time to time,
including such Class or Classes of Shares as the Trustees may from time to time
create and establish and including fractions of Shares as well as whole Shares
as consistent with the requirements of Federal and/or state securities laws;
(h) "Series" refers to any series of Shares established and designated
under or in accordance with the provisions hereof;
(i) "Series Company" refers to the form of registered open-end investment
company described in Section 18(f)(2) of the 1940 Act or in any successor
statutory provision;
(j) "Trust" refers to the Massachusetts business trust established by this
Agreement and Declaration of Trust, as amended from time to time;
(k) "Trustees" refers to the individual trustees of the Trust in their
capacity as trustees hereunder and their successor or successors for the time
being in office as such trustee or trustees; and
(l) "1940 Act" refers to the Investment Company Act of 1940 and the rules
and regulations thereunder, all as amended from time to time or as modified by
or interpreted by any applicable order or orders of the Commission or
interpretive releases of the Commission thereunder.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to provide investors a continuous source of
managed investment primarily in securities.
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ARTICLE III
Shares
Section 1. Division of Beneficial Interest.
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The beneficial interest in the Trust shall at all times be divided into an
unlimited number of Shares. Each Share shall be without par value and shall be
fully paid and non-assessable. Subject to the provisions of Section 6 of this
Article III, each Share shall have voting rights as provided in Article V
hereof, and holders of the Shares of any Series or Class shall be entitled to
receive dividends, when and as declared with respect thereto in the manner
provided in Article VI, Section 1 hereof. Except as otherwise provided in
Section 6 of this Article III with respect to Shares of Multi-Class Series, no
Share shall have any priority or preference over any other Share of the same
Series with respect to dividends or distributions upon termination of the Trust
or of such Series made pursuant to Article VIII, Section 6 hereof. Except as
otherwise provided in Section 6 of this Article III with respect to Shares of
Multi-Class Series, all dividends and distributions shall be made ratably among
all Shareholders of a particular Series from the assets belonging to such Series
according to the number of Shares of such Series held of record by such
Shareholders on the record date for any dividend or distribution or on the date
of termination, as the case may be.
The Trustees may from time to time (a) divide or combine the Shares of any
particular Series or Class into a greater or lesser number of Shares of that
Series or Class without thereby changing the proportionate beneficial interest
of the Shares of that Series or Class in the assets belonging to that Series or
attributable to that Class or in any way affecting the rights of Shares of any
other Series or Class or (b) take such other action with respect to the Shares
as the Trustees may deem necessary or desirable.
Section 2. Ownership of Shares.
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The ownership of Shares shall be recorded on the books of the Trust or a
transfer or similar agent for the Trust, which books shall be maintained
separately for the Shares of each Series and Class. 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 transfer of Shares of each Series and Class and similar
matters. The record books of the Trust as kept by the Trust or any transfer or
similar agent, as the case may be, shall be conclusive as to who are the
Shareholders of each Series and Class and as to the number of Shares of each
Series and Class held from time to time by each Shareholder.
Section 3. Investments in the Trust.
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The Trustees shall accept investments in the Trust from such persons and on such
terms and for such consideration as they from time to time authorize. The
Trustees may, in their sole discretion impose a sales charge or other fee upon
investments in the Trust or Series or any Classes thereof and issue fractional
Shares.
Section 4. Status of Shares and Limitation of Personal Liability.
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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
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terms hereof and to have become a party hereto. The death of a Shareholder
during the continuance of the Trust shall not operate to terminate the same nor
entitle the representative of any deceased Shareholder to an accounting or to
take any action in court or elsewhere against the Trust or the Trustees, but
entitles such representative only to the rights of said deceased Shareholder
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 Shareholders, 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.
Section 5. Power of Trustees to Change Provisions Relating to Shares.
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Notwithstanding any other provisions of this Declaration of Trust and without
limiting the power of the Trustees to amend the Declaration of Trust as provided
elsewhere herein, the Trustees shall have the power to amend this Declaration of
Trust, at any time and from time to time, in such manner as the Trustees may
determine in their sole discretion, without the need for Shareholder action, so
as to add to, delete, replace or otherwise modify any provisions relating to the
Shares contained in this Declaration of Trust for the purpose of responding to
or complying with any regulations, orders, rulings or interpretations of any
governmental agency or any laws, now or hereafter applicable to the Trust or
otherwise; provided that before adopting any such amendment the Trustees shall
determine that it is consistent with the fair and equitable treatment of all
Shareholders.
Without limiting the generality of the foregoing, the Trustees may:
(a) create one or more Series or Classes of Shares (in addition to any
Series or Classes already existing or otherwise) with such rights and
preferences and such eligibility requirements for investment therein as the
Trustees shall determine and reclassify any or all outstanding Shares as shares
of particular Series or Classes in accordance with such eligibility
requirements;
(b) amend any of the provisions set forth in paragraphs (a) through (j) of
Section 6 of this Article III;
(c) combine one or more Series or Classes of Shares into a single Series or
Class on such terms and conditions as the Trustees shall determine;
(d) change or eliminate any eligibility requirements for investment in
Shares of any Series or Class, including, without limitation, the power to
provide for the issuance of Shares of any Series or Class in connection with any
merger or consolidation of the Trust with another trust or company or any
acquisition by the Trust of part or all of the assets of another trust or
company;
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(e) change the designation of any Series or Class of Shares;
(f) change the method of allocating dividends among the various Series and
Classes of Shares;
(g) allocate any specific assets or liabilities of the Trust or any
specific items of income or expense of the Trust to one or more Series or
Classes of Shares; and
(h) specifically allocate assets to any or all Series of Shares or create
one or more additional Series of Shares that are preferred over all other Series
of Shares in respect of assets specifically allocated thereto or any dividends
paid by the Trust with respect to any net income, however determined, earned
from the investment and reinvestment of any assets so allocated or otherwise and
provide for any special voting or other rights with respect to such Series or
any Classes of Shares thereof.
Section 6. Establishment and Designation of Series and Classes.
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The establishment of any Series or Class thereof shall be effective upon the
adoption of a resolution by a majority of the then Trustees setting forth such
establishment and designation and the relative rights and preferences of the
Shares of such Series or Class. Whether directly in such resolution or by
reference to, or approval of, another document that sets forth such relative
rights and preferences of the shares of such Series or Class, including, without
limitation, any registration statement of the Trust, or as otherwise provided in
such resolution. At any time that there are no Shares outstanding of any
particular Series or Class previously established and designated, the Trustees
may by a majority vote or written consent abolish such Series or Class and the
establishment and designation thereof.
Shares of each Series established shall have the following rights and
preferences relative to Shares of each other Series, and Shares of each Class of
a Multi-Class Series shall have such rights and preferences relative to other
Classes of the same Series as are set forth below, together with such other
rights and preferences relative to such other Classes as are set forth in any
resolution of the Trustees establishing and designating such Series or Class of
Shares:
(a) Assets belonging to Series.
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Subject to the provisions of paragraph (c) of this Section 6:
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 from
whatever source derived, including, without limitation, 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,
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assets, income, earnings, profits and proceeds thereof, from whatever source
derived, including, without limitation, 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, 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
that are not readily identifiable as belonging to any particular Series
(collectively "General Assets"), the Trustees shall allocate such General Assets
to, between or 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 Asset 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. No Shareholder or former Shareholder of any Series shall have a
claim on or any right to any assets allocated or belonging to any other Series.
(b) Liabilities Belonging to Series.
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Subject to the provisions of paragraph (c) of this Section 6:
The assets belonging to each particular Series shall be charged solely with
the liabilities of the Trust in respect to that Series, the expenses, costs,
charges and reserves attributable to that Series, and any general liabilities of
the Trust that are not readily identifiable as belonging to any particular
Series, but which are allocated and charged by the Trustees to and among any one
or more of the Series established and designated from time to time in a manner
and on such basis as the Trustees in their sole discretion deem fair and
equitable. The liabilities, expenses, costs, charges and reserves so charged to
a 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.
(c) Apportionment of Assets etc. in Case of Multi-Class Series.
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In the case of any Multi-Class Series, to the extent necessary or appropriate to
give effect to the relative rights and preferences of any Classes of Shares of
such Series, (i) any assets, income, earnings, profits, proceeds, liabilities,
expenses, charges, costs and reserves belonging or attributable to that Series
may be allocated or attributed to a particular Class of Shares of that Series or
apportioned among two or more Classes of Shares of that Series; and (ii) Shares
of any Class of such Series may have priority or preference over shares of other
Classes of such Series with respect to dividends or distributions upon
termination of the Trust or of such Series or Class or otherwise, provided that
no Share shall have any priority or preference over any other Shares of the same
Class and that all dividends and distributions to Shareholders of a particular
Class shall be made ratably among all Shareholders of such Class according to
the number of Shares of such Class held of record by such Shareholders on the
record date for any dividend or distribution or on the date of termination, as
the case may be.
(d) Dividends, Distributions, Redemptions and Repurchases.
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Notwithstanding any other provisions of this Declaration, including, without
limitation, Article VI, no dividend or
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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 belonging to such Series or attributable
to such Class, nor shall any Shareholder of any particular Series or Class
otherwise have any right or claim against the assets belonging to any other
Series or attributable to any other Class except to the extent that such
Shareholder has such a right or claim hereunder as a Shareholder of such other
Series or Class.
(e) Voting.
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Notwithstanding any of the other provisions of this Declaration, including,
without limitation, Section 1 of Article V, the Shareholders of any particular
Series or Class shall not be entitled to vote on any matters as to which such
Series or Class is not affected. On any matter submitted to a vote of
Shareholders, all Shares of the Trust then entitled to vote shall, except as
otherwise provided in the By-Laws, be voted in the aggregate as a single Class
without regard to Series or Class of Shares, except that (i) when required by
the 1940 Act or when the Trustees shall have determined that the matter affects
one or more Series or Classes of Shares materially differently, Shares shall be
voted by individual Series or Class; and (ii) when the matter affects only the
interests of one or more Series or Classes, only Shareholders of such Series or
Classes shall be entitled to vote thereon. There shall be no cumulative voting
in the election of Trustees.
(f) Equality.
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Except to the extent necessary or appropriate to give effect to the relative
rights and preferences of any Classes of Shares of a Multi-Class Series, all the
Shares of each particular Series shall represent an equal proportionate interest
in the assets belonging to that Series (subject to the liabilities belonging to
that Series), and each Share of any particular Series shall be equal to each
other Share of that Series. All the Shares of each particular Class of Shares
within a Multi-Class Series shall represent an equal proportionate interest in
the assets belonging to such Series that are attributable to such Class (subject
to the liabilities attributable to such Class), and each Share of any particular
Class within a Multi-Class Series shall be equal to each other Share of such
Class.
(g) Fractions.
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Any fractional Share of a Series or Class shall carry proportionately all the
rights and obligations of a whole Share of that Series or Class, including
rights with respect to voting, receipt of dividends and distributions,
redemption of Shares and termination of the Trust.
(h) Exchange Privilege.
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The Trustees shall have the authority to provide that the holders of Shares of
any Series or Class shall have the right to exchange said Shares for Shares of
one or more other Series or Classes of Shares in this Trust or in any other
trust in accordance with such requirements and procedures as may be established
by the Trustees.
(i) Combination of Series or Classes.
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The Trustees shall have the authority, without the approval of the Shareholders
of any Series or Class unless otherwise required by applicable
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law, to combine the assets and liabilities belonging to any two or more Series
or attributable to any Class into assets and liabilities belonging to a single
Series or attributable to a single Class.
(j) Elimination of Series or Class.
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At any time that there are no Shares outstanding of any particular Series
previously established and designated, the Trustees may abolish that Series and
rescind the establishment and designation thereof, such action to be effected in
the manner provided above. At any time that there are no Shares outstanding of
any particular Class of Shares, the Trustees may abolish that Class and rescind
the establishment and designation thereof, such action to be effected in the
manner provided above.
Section 7. Indemnification of Shareholders.
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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 of the
Trust or of a particular Series or Class 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 Series (or attributable to
the Class) of which he or she is a Shareholder or former Shareholder to be held
harmless from and indemnified against all loss and expense arising from such
liability.
Section 8. No Preemptive Rights.
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Shareholders shall have no preemptive or other right to subscribe to any
additional Shares or other securities issued by the Trust.
Section 9. Derivative Claims.
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No Shareholder shall have the right to bring or maintain any court action,
proceeding or claim on behalf of the Trust or any Series without first making
demand on the Trustees requesting the Trustees to bring or maintain such action,
proceeding or claim. Such demand shall be excused only when the plaintiff makes
a specific showing that irreparable injury to the Trust or Series would
otherwise result. Such demand shall be mailed to the Secretary of the Trust at
the Trust's principal office and shall set forth in reasonable detail the nature
of the proposed court action, proceeding or claim and the essential facts relied
upon by the Shareholder to support the allegations made in the demand. The
Trustees shall consider such demand within 45 days of its receipt by the Trust.
In their sole discretion, the Trustees may submit the matter to a vote of
Shareholders of the Trust or Series, as appropriate. Any decision by the
Trustees to bring, maintain or settle (or not to bring, maintain or settle) such
court action, proceeding or claim, or to submit the matter to a vote of
Shareholders, shall be made by the Trustees in their business judgment and shall
be binding upon the Shareholders. Any decision by the Trustees to bring or
maintain a court action, proceeding or suit on behalf of the Trust or a Series
shall be subject to the right of the Shareholders under Article V, Section 1
hereof to vote on whether or not such court action, proceeding or suit should or
should not be brought or maintained.
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ARTICLE IV
The Trustees
Section 1. Election and Tenure.
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The initial trustee or trustees shall be the individual(s) who shall affix their
signatures hereto. On a date fixed by the Trustees, the Shareholders shall elect
not less than three Trustees. A Trustee shall not be required to be a
Shareholder of the Trust. The Trustees may fix or change the number of Trustees,
fill vacancies in the Trustees, including vacancies arising from an increase in
the number of Trustees, or remove Trustees with or without cause.
Each Trustee shall serve during the continued lifetime of the Trust until
he or she dies, resigns, is removed, reaches such mandatory retirement age as
may be determined by the Trustees from time to time, or, if sooner, until the
next meeting of Shareholders called for the purpose of electing Trustees and
until the election and qualification of his or her successor. Any Trustee may
resign at any time by written instrument signed by him or her and delivered to
any officer of the Trust or to a meeting of the Trustees. Such resignation shall
be effective upon receipt unless specified to be effective at some other time.
Except to the extent expressly provided in a written agreement with the Trust,
no Trustee resigning and no Trustee removed shall have any right to any
compensation for any period following his or her resignation or removal, or any
right to damages on account of such removal. The Shareholders may fix the number
of Trustees and elect Trustees at any meeting of Shareholders called by the
Trustees for that purpose and to the extent required by applicable law,
including paragraphs (a) and (b) of Section 16 of the 1940 Act.
Section 2. Effect of Death, Resignation, etc. of a Trustee.
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The death, declination, resignation, retirement, removal or incapacity of the
Trustees, or any of them, shall not operate to annul the Trust or to revoke any
existing agency created pursuant to the terms of this Declaration of Trust.
Section 3. Powers.
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Subject to the provisions of this Declaration of Trust, the business of the
Trust shall be managed by the Trustees, and they shall have all powers necessary
or convenient to carry out that responsibility, including the power to engage in
securities transactions of all kinds on behalf of the Trust. Without limiting
the foregoing, the Trustees may adopt By-Laws not inconsistent with this
Declaration of Trust providing for the regulation and management of the affairs
of the Trust and may amend and repeal them to the extent that such By-Laws do
not reserve that right to the Shareholders; they may elect and remove such
officers and appoint and terminate such agents as they consider appropriate;
they may appoint from their own number and terminate one or more committees
consisting of two or more Trustees, which may exercise the powers and authority
of the Trustees to the extent that the Trustees determine; they may employ one
or more custodians of the assets of the Trust and may authorize such custodians
to employ subcustodians and to deposit all or any part of such assets in a
system or systems for the central handling of securities or with a Federal
Reserve Bank, retain a transfer
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agent or a shareholder servicing agent, or both, provide for the distribution of
Shares by the Trust, through one or more principal underwriters or otherwise,
set record dates for the determination of Shareholders with respect to various
matters, and in general delegate such authority as they consider desirable to
any officer of the Trust, to any committee of the Trustees and to any agent or
employee of the Trust or to any investment adviser, manager, custodian,
underwriter or other agent or independent contractor.
Without limiting the foregoing, the Trustees shall have power and
authority:
(a) To invest and reinvest cash, and to hold cash uninvested;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, lease, write
options with respect to or otherwise deal in any property rights relating to any
or all of the assets of the Trust;
(c) 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;
(d) To exercise powers and rights of subscription or otherwise that in any
manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating any trust,
whether in bearer, unregistered or other negotiable form, or in its own name or
in the name of a custodian or subcustodian or a nominee or nominees or
otherwise;
(f) To establish separate and distinct Series with separately defined
investment objectives and policies and distinct investment purposes in
accordance with the provisions of Article III and to establish Classes of such
Series having relative rights, powers and duties as the Trustees may provide
consistent with applicable laws;
(g) To allocate assets, liabilities, and expenses of the Trust to a
particular Series or Class, as appropriate, or to apportion the same between or
among two or more Series or Classes, as appropriate, provided that any
liabilities or expenses incurred by a particular Series or Class shall be
payable solely out of the assets belonging to that Series as provided for in
Article III.
(h) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security that is
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
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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 make distributions of income and of capital gains to Shareholders as
provided herein;
(m) To borrow money or other property, and to pledge, mortgage or
hypothecate the assets of the Trust, subject to the applicable requirements of
the 1940 Act;
(n) To endorse or guarantee the payment of any notes or other obligations
of any person; and to make contracts of guaranty or suretyship, or otherwise
assume liability for payment of such notes or other 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 of the
Trust, 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, 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 Trustee, officer, employee, agent,
investment adviser, 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
liability;
(p) To pay pensions as deemed appropriate by the Trustees and to adopt,
establish and carry out deferred compensation, 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;
(q) To operate and carry on the business of an investment company and to
exercise all the powers necessary and appropriate to the conduct of such
operations;
(r) To interpret the investment policies, practices or limitations of any
Series;
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(s) In general to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary, suitable
or proper for the accomplishment of any purpose or the attainment of any object
or the furtherance of any power hereinbefore set forth, either alone or in
association with others, and to do every other act or thing incidental or
appurtenant to or growing out of or connected with the aforesaid business or
purposes, objects or powers; and
(t) Nothwithstanding any other provision hereof, to invest all of the
assets of any Series in a single open-end investment company, including
investment by means of transfer of such assets in exchange for an interest or
interests in such investment company or by any other method approved by the
Trustees.
The foregoing clauses shall be construed both as objects and powers, and
the foregoing enumeration of specific powers shall not be held to limit or
restrict in any manner the general powers of the Trustees. Any action by one or
more of the Trustees in their capacity as such hereunder shall be deemed an
action on behalf of the Trust or the applicable Series and not an action in an
individual capacity.
Except as otherwise provided herein or in the 1940 Act, 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. The Trustees shall not be required to obtain
any court order to deal with any assets of the Trust or take any other action
hereunder.
Section 4. Payment of Expenses by the Trust.
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The Trustees are authorized to pay or 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,
administrators, investment advisers or managers, 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 5. Payment of Expenses by Shareholders.
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The Trustees shall have the power, as frequently as they may determine, to cause
each Shareholder, or each Shareholder of any particular Series or Class, to pay
directly, in advance or arrears, for charges of the Trust's custodian or
transfer, shareholder servicing 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 that represents the outstanding amount of such charges
due from such Shareholder.
-12-
Section 6. Ownership of Assets of the Trust.
--------------------------------------------
Title to all of the assets of the Trust shall at all times be considered as
vested in the Trustees.
Section 7. Advisory, Management and Distribution Contracts.
-------------------------------------------------------------
The Trustees may, at any time and from time to time, contract for exclusive or
nonexclusive advisory and/or management services for the Trust or for any Series
or Class with any corporation, trust, partnership, limited liability company,
association or other organization (the "Manager"); and any such contract may
contain such other terms as the Trustees may determine, including, without
limitation, authority for a Manager to determine from time to time without prior
consultation with the Trustees what investments shall be purchased, held, sold
or exchanged and what portion, if any, of the assets of the Trust shall be held
uninvested and to make changes in the Trust's investments. The Trustees may
also, at any time and from time to time, contract with the Manager or any other
corporation, trust, association or other organization, appointing it exclusive
or nonexclusive distributor or principal underwriter for the Shares; and any
such contract may contain such other terms as the Trustees may determine.
The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager, adviser,
principal underwriter, distributor or affiliate or agent of or for any
corporation, trust, association or other organization, or of or for any parent
or affiliate of any organization, with which an advisory or management contract,
or principal underwriter's or distributor's contract or transfer, shareholder
servicing or other agency contract may have been or may hereafter be made, or
that any such organization, or any parent or affiliate thereof, is a Shareholder
or has an interest in the Trust, or that
(ii) any corporation, trust, association or other organization with which
an advisory or management contract or principal underwriter's or distributor's
contract, or transfer, shareholder servicing or other agency contract may have
been or may hereafter be made also has an advisory or management contract, or
principal underwriter's or distributor's contract or transfer, shareholder
servicing or other agency contract with one or more other corporations, trusts,
associations or other organizations, or has other business or interests
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same or create any liability or accountability to the Trust or its Shareholders.
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ARTICLE V
Shareholders' Voting Powers and Meetings
Section 1. Voting Powers.
-------------------------
The Shareholders shall have power to vote only (a) for the election of Trustees
as provided in Article IV, Section 1, (b) with respect to any amendment of this
Declaration of Trust to the extent and as provided in Article VIII, Section 11,
(c) 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, (d) with respect to the termination, merger,
consolidation, reorganization or sale of assets of the Trust or any Series or
Class to the extent and as provided in Article VIII, (e) to remove Trustees from
office to the extent and as provided in Article V, Section 7 and (f) with
respect to such additional matters relating to the Trust as may be required by
this Declaration of Trust, the By-Laws or any registration of the Trust with the
Commission (or any successor agency) or any state, or as the Trustees may
consider necessary or desirable. A Shareholder of each Series or Class shall be
entitled to one vote for each dollar of net asset value (number of shares owned
times net asset value per share) of such Series or Class thereof, on any matter
on which such Shareholder is entitled to vote, and each fractional dollar amount
shall be entitled to a proportionate fractional vote. 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 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. At any time when no
Shares of a Series or Class are outstanding the Trustees may exercise all rights
of Shareholders of that Series or Class with respect to matters affecting that
Series or Class and may with respect to that Series or Class take any action
required by law, this Declaration of Trust or the By-Laws to be taken by the
Shareholders thereof.
Section 2. Voting Power and Meetings.
-------------------------------------
Meetings of the Shareholders may be called by the Trustees for the purpose of
electing Trustees as provided in Article IV, Section 1 and for such other
purposes as may be prescribed by law, by this Declaration of Trust or by the
By-Laws. Meetings of the Shareholders may also be called by the Trustees from
time to time for the purpose of taking action upon any other matter deemed by
the Trustees to be necessary or desirable. A meeting of Shareholders may be held
at any place designated by the Trustees. Notice of any meeting of Shareholders,
stating the time and place of the meeting, shall be given or caused to be given
by the Trustees to each Shareholder by mailing such notice, postage prepaid, at
least seven days before such meeting, at the Shareholder's address as it appears
on the records of the Trust, or by facsimile or other form of electronic
transmission, at least seven days before such meeting, to the telephone or
facsimile number or e-mail or other electronic address most recently furnished
to the Trust (or its agent) by the Shareholder. Whenever notice of a meeting is
required to be given to a Shareholder under this Declaration of Trust or the
By-Laws, a written waiver thereof, executed before or after the meeting by such
Shareholder or his attorney
-14-
thereunto authorized and filed with the records of the meeting, shall be deemed
equivalent to such notice.
Section 3. Quorum and Required Vote.
-----------------------------------------
Except when a larger quorum is required by law, by the By-Laws or by this
Declaration of Trust, 40% of the Shares entitled to vote shall constitute a
quorum at a Shareholders' meeting. When any one or more Series or Classes is to
vote as a single Class separate from any other Shares which are to vote on the
same matters as a separate Class or Classes, 40% of the Shares of each such
Class entitled to vote shall constitute a quorum at a Shareholders' meeting of
that Class. Any meeting of Shareholders may be adjourned from time to time by a
majority of the votes properly cast upon the question, whether or not a quorum
is present, and the meeting may be held as adjourned within a reasonable time
after the date set for the original meeting without further notice. When a
quorum is present at any meeting, a majority of the Shares voted shall decide
any questions and a plurality shall elect a Trustee, except when a larger vote
is required by any provision of this Declaration of Trust or the By-Laws or by
law. If any question on which the Shareholders are entitled to vote would
adversely affect the rights of any Series or Class of Shares, the vote of a
majority (or such larger vote as is required as aforesaid) of the Shares of such
Series or Class that are entitled to vote, voting separately, shall also be
required to decide such question.
Section 4. Action by Written Consent.
-------------------------------------
Any action taken by Shareholders may be taken without a meeting if Shareholders
holding a majority of the Shares entitled to vote on the matter (or such larger
proportion thereof as shall be required by any express provision of this
Declaration of Trust or by the By-Laws) and holding a majority (or such larger
proportion as aforesaid) of the Shares of any Series or Class entitled to vote
separately on the matter 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.
Section 5. Record Dates.
------------------------
For the purpose of determining the Shareholders of any Series or Class who are
entitled to vote or act at any meeting or any adjournment thereof, the Trustees
may, from time to time, fix a time, which shall be not more than 90 days before
the date of any meeting of Shareholders, as the record date for determining the
Shareholders of such Series or Class having the right to notice of and to vote
at such meeting and any adjournment thereof, and in such case only Shareholders
of record on such record date shall have such right, notwithstanding any
transfer of Shares on the books of the Trust after the record date. For the
purpose of determining the Shareholders of any Series or Class who are entitled
to receive payment of any dividend or of any other distribution, the Trustees
may from time to time fix a date, which shall be on or before the date for the
payment of such dividend or such other payment, as the record date for
determining the Shareholders of such Series or Class having the right to receive
such dividend or distribution. Without fixing a record date, the Trustees may
for voting and/or distribution purposes close the register or transfer books for
one or more Series or Classes for all or any part of the period prior to a
meeting of Shareholders or the payment of a
-15-
distribution. Nothing in this Section shall be construed as precluding the
Trustees from setting different record dates for different Series or Classes.
Section 6. Additional Provisions.
-------------------------------------
The By-Laws may include further provisions for Shareholders' votes and meetings
and related matters.
Section 7. Removal of Trustees.
--------------------------------
No natural person shall serve as Trustee after the holders of record of not less
than two-thirds of the outstanding Shares have declared that such Trustee be
removed from that office either by declaration in writing filed with the Trust's
custodian or by votes cast in person or by proxy at a meeting called for the
purpose. The Trustees shall promptly call a meeting of Shareholders for the
purpose of voting upon the question of removal of any Trustee when requested in
writing so to do by the record holders of not less than 10 per centum of the
outstanding Shares.
Unless otherwise provided under applicable law, 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 having a net asset
value of at least 1 per centum of the outstanding Shares, 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
pursuant to this Section and accompanied by a form of communication and request
that they wish to transmit, the Trustees shall within five (5) business days
after receipt of such application either (a) afford to such applicants access to
a list of the names and addresses of all Shareholders as recorded on the books
of the Trust; or (b) inform such applicants as to the approximate number of
Shareholders of record, and the approximate cost of transmitting to them the
proposed communication and form of request. If the Trustees elect to follow the
course specified in clause (b), unless otherwise provided under applicable law,
the Trustees, upon the written request of such applicants, accompanied by a
tender of the material to be transmitted and of the reasonable expenses of
transmittal, shall, with reasonable promptness, transmit such material to all
Shareholders of record at their addresses as recorded on the books of the Trust
(or at the telephone or facsimile number or e-mail or other electronic address
most recently furnished to the Trust (or its agent) by the Shareholder), unless
within five business days after such tender the Trustees shall transmit to such
applicants and file with the Commission, together with a copy of the material
proposed to be transmitted, a written statement signed by at least a majority of
the Trustees to the effect that, in their opinion, either such material contains
untrue statements of fact or omits to state facts necessary to make the
statements contained therein not misleading, or would be in violation of
applicable law, and specifying the basis of such opinion. If the Commission
shall enter an order refusing to sustain any of the objections specified in the
written statement so filed, or if, after the entry of an order sustaining one or
more of such objections, the Commission shall find, after notice and opportunity
for hearing, that all objections so sustained have been met, and shall enter an
order so declaring, the Trustees shall, unless otherwise provided under
applicable law, transmit copies of such material to all Shareholders with
reasonable promptness after the entry of such order and the renewal of such
tender.
-16-
ARTICLE VI
Net Income, Distributions and Redemptions and Repurchases
Section 1. Distributions of Net Income.
-----------------------------------------
The Trustees shall each year, or more frequently if they so determine in their
sole discretion, distribute to the Shareholders of each Series, in Shares of
that Series, cash or otherwise, an amount approximately equal to the net income
attributable to the assets belonging to such Series and may, from time to time,
distribute to the Shareholders of each Series, in Shares of that Series, cash or
otherwise, such additional amounts, but only from the assets belonging to such
Series, as they may authorize. Except as otherwise permitted by paragraph (c) of
Section 6 of Article III in the case of Multi-Class Series, all dividends and
distributions on Shares of a particular Series shall be distributed pro rata to
the holders of that Series in proportion to the number of Shares of that Series
held by such holders and recorded on the books of the Trust at the date and time
of record established for the payment of such dividend or distributions.
The manner of determining net income, income, asset values, capital gains,
expenses, liabilities and reserves of any Series or Class may, from time to
time, be altered as necessary or desirable in the judgment of the Trustees to
conform such manner of determination to any other method prescribed or permitted
by applicable law. Net income shall be determined by the Trustees or by such
person as they may authorize at the times and in the manner provided in the
By-Laws. Determinations of net income of any Series or Class and determinations
of income, asset value, capital gains, expenses and liabilities made by the
Trustees, or by such person as they may authorize, in good faith, shall be
binding on all parties concerned. The foregoing sentence shall not be construed
to protect any Trustee, officer or agent of the Trust against any liability to
the Trust or its security holders to which he or she would otherwise be subject
by reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his office.
If, for any reason, the net income of any Series or Class determined at any
time is a negative amount, the pro rata share of such negative amount allocable
to each Shareholder of such Series or Class shall constitute a liability of such
Shareholder to that Series or Class, which shall be paid out of such
Shareholder's account at such times and in such manner as the Trustees may from
time to time determine (a) out of the accrued dividend account of such
Shareholder, (b) by reducing the number of Shares of that Series or Class in the
account of such Shareholder or (c) otherwise.
Section 2. Redemptions and Repurchases.
------------------------------------------
The Trust shall purchase such Shares as are offered by any Shareholder for
redemption, upon the presentation of a proper instrument of transfer together
with a request directed to the Trust or a person designated by the Trust that
the Trust purchase such Shares or in accordance with such other procedures for
redemption as the Trustees may from time to time authorize; and the Trust will
pay therefor the net asset value thereof next determined. Payment for said
Shares shall be made by the Trust to the Shareholder within seven days after the
date on which the request is made. The obligation set forth in this
-17-
Section 2 is subject to the provision that in the event that any time the New
York Stock Exchange is closed for other than weekends or holidays, or if
permitted by the rules of the Commission during periods when trading on the New
York Stock Exchange is restricted or during any emergency that makes it
impracticable for the Trust to dispose of the investments of the applicable
Series or to determine fairly the value of the net assets belonging to such
Series or attributable to any Class thereof or during any other period permitted
by order of the Commission for the protection of investors, such obligations may
be suspended or postponed by the Trustees. The Trust may also purchase or
repurchase Shares at a price not exceeding the net asset value of such Shares in
effect when the purchase or repurchase or any contract to purchase or repurchase
is made.
The redemption price may, in any case or cases, be paid wholly or partly in
kind if the Trustees determine that such payment is advisable in the interest of
the remaining Shareholders of the Series the Shares of which are being redeemed.
In making any such payment wholly or partly in kind, the Trust shall, so far as
may be practicable, deliver assets that approximate the diversification of all
of the assets belonging at the time to the Series the Shares of which are being
redeemed. Subject to the foregoing, the fair value, selection and quantity of
securities or other property so paid or delivered as all or part of the
redemption price may be determined by or under authority of the Trustees. In no
case shall the Trust be liable for any delay of any corporation or other person
in transferring securities selected for delivery as all or part of any payment
in kind.
Section 3. Redemptions at the Option of the Trust.
--------------------------------------------------
The Trust shall have the right at its option and at any time to redeem Shares of
any Shareholder at the net asset value thereof as described in Section 1 of this
Article VI (a) if, at such time, such Shareholder owns Shares of any Series or
Class having an aggregate net asset value of less than an amount determined from
time to time by the Trustees; (b) to the extent that such Shareholder owns
Shares equal to or in excess of a percentage determined from time to time by the
Trustees of the outstanding Shares of the Trust or of any Series or Class; (c)
if the Trustees determine that such Shareholder is engaging in conduct that is
harmful to the Trust or any Series or Class thereof; or (d) if the Trustees
otherwise determine such redemption to be necessary or appropriate.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
Section 1 Compensation.
-------------------------
The Trustees as such shall be entitled to reasonable compensation from the
Trust; they may fix the amount of their compensation. Nothing herein shall in
any way prevent the employment of any Trustee for advisory, management, legal,
accounting, investment banking or other services and payment for the same by the
Trust.
-18-
Section 2. Limitation of Liability.
------------------------------------
The Trustees shall not be responsible or liable in any event for any neglect or
wrong-doing of any officer, agent, employee, Manager or principal underwriter of
the Trust, nor shall any Trustee be responsible for the act or omission of any
other Trustee, but nothing herein contained shall protect any Trustee against
any liability to which he or she would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his or her office.
Every note, bond, contract, instrument, certificate or undertaking and
every other act or thing whatsoever issued, 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 issued, executed or done only in or with
respect to their or his or her capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
ARTICLE VIII
Miscellaneous
Section 1. Trust Not A Partnership, etc.
-----------------------------------------
It is hereby expressly declared that a trust is created hereby and not a
partnership, join stock association, corporation, bailment, or any form of a
legal relationship other than a trust. No Trustee hereunder shall have any power
to personally bind either the Trust's officers or any Shareholder.
Section 2. Trustees, Shareholders, etc. Not Personally Liable; Notice.
-----------------------------------------------------------------------
All persons extending credit to, contracting with or having any claim against
the Trust or any Series or Class shall look only to the assets of the Trust, or,
to the extent that the liability of the Trust may have been expressly limited by
contract to the assets of a particular Series or attributable to a particular
Class, only to the assets belonging to the relevant Series or attributable to
the relevant Class, 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. 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.
-19-
Every note, bond, contract, instrument, certificate or undertaking made or
issued on behalf of the Trust by the Trustees, by any officer or officers or
otherwise shall give notice that this Declaration of Trust is on file with the
Secretary of The Commonwealth of Massachusetts and shall recite that the same
was executed or made by or on behalf of the Trust or by them as Trustee or
Trustees or as officer or officers or otherwise 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 upon the assets belonging to the Series or attributable to the
Class for the benefit of which the Trustees have caused the note, bond,
contract, instrument, certificate or undertaking to be made or issued, and may
contain such further recital as he or she or they may deem appropriate, but the
omission of any such recital shall not operate to bind any Trustee or Trustees
or officer or officers or Shareholders or any other person individually.
Section 3. Trustee's Good Faith Action, Expert Advice, No Bond or Surety.
---------------------------------------------------------------------------
The exercise by the Trustees of their powers and discretions hereunder shall be
binding upon everyone interested. A Trustee shall be liable for his or her own
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the office of Trustee, and for nothing else,
and shall not be liable for errors of judgment or mistakes of fact or law. The
Trustees may take advice of counsel or other experts with respect to the meaning
and operation of this Declaration of Trust and shall be under no liability for
any act or omission in accordance with such advice or for failing to follow such
advice. The Trustees shall not be required to give any bond as such, nor any
surety if a bond is required.
Section 4. Liability of Third Persons Dealing with Trustees.
----------------------------------------------------------------
No person dealing with the Trustees shall be bound to make any inquiry
concerning the validity of any transaction made or to be made by the Trustees or
to see to the application of any payments made or property transferred to the
Trust or upon its order.
Section 5. Duration of Trust.
-----------------------------
The Trust shall continue without limitation of time, but subject to the
provisions of this Article VIII.
Section 6. Termination of Trust, a Series or a Class.
---------------------------------------------------------
(a) Subject to applicable Federal and state law, the Trust or any Series or
Class thereof may be terminated (i) by Majority Shareholder Vote of the Trust,
each Series affected, or each Class affected, as the case may be; or (ii)
without the vote or consent of Shareholders by a majority of the Trustees either
at a meeting or by written consent. The Trustees shall provide written notice to
the affected Shareholders of a termination effected under clause (ii) above.
Upon termination of the Trust or the Series or Class,
(i) the Trust or the Series or Class shall carry on no business except for
the purpose of winding up its affairs;
(ii) the Trustees shall proceed to wind up the affairs of the Trust or the
Series or
-20-
Class, and all of the powers of the Trustees under this Declaration of Trust
shall continue until the affairs of the Trust shall have been wound up,
including the power to fulfill or discharge the contracts of the Trust or the
Series or Class thereof; collect its assets; sell, convey, assign, exchange,
transfer, or otherwise dispose of all or any part of the remaining Trust
property or Trust property allocated or belonging to such Series or Class to one
or more persons at public or private sale for consideration that may consist in
whole or in part of cash, securities, or other property of any kind; discharge
or pay its liabilities; and do all other acts appropriate to liquidate its
business; provided that any sale, conveyance, assignment, exchange, transfer, or
other disposition of all or substantially all the Trust property or Trust
property allocated or belonging to such Series or Class (other than as provided
in (iii) below) shall require Shareholder approval in accordance with Section 7
below; and
(iii) after paying or adequately providing the payment of all liabilities,
and upon receipt of such releases, indemnities, and refunding agreements as they
deem necessary for their protection, the Trustees may distribute the remaining
Trust property or the remaining property of the terminated Series or Class
according to their prospective rights; and
(b) after termination of the Trust or the Series or Class and distribution
to the Shareholders as herein provided, a majority of the Trustees shall execute
and lodge among the records of the Trust and file with the Secretary of The
Commonwealth of Massachusetts, as appropriate, an instrument in writing setting
forth the fact of such termination, and the Trustees shall thereupon be
discharged from all further liabilities and duties with respect to the Trust or
the terminated Series or Class, and the rights and interests of all Shareholders
of the Trust or the terminated Series or Class shall thereupon cease.
Section 7. Merger, Consolidation, and Sales of Assets.
------------------------------------------------------
Subject to applicable Federal and state law and except as otherwise provided in
Section 8 below, the Trust or any Series thereof may merge or consolidate with
any other corporation, association, trust, or other organization or may sell,
lease, or exchange all or substantially all of the Trust property or Trust
property allocated or belonging to such Series, including its good will, upon
such terms and conditions and for such consideration when and as authorized at
any meeting of Shareholders called for such purpose by a Majority Shareholder
Vote of the Trust or affected Series, as the case may be. Such transactions may
be effected through share-for-share exchanges, transfers or sale of assets,
shareholder in-kind redemptions and purchases, exchange offers, or any other
method approved by the Trustees
Section 8. Incorporation; Reorganization.
-----------------------------------------
Subject to applicable Federal and state law, the Trustees may without the vote
or consent of Shareholders cause to be organized or assist in organizing a
corporation or corporations under the laws of any jurisdiction or any other
trust,
-21-
partnership, limited liability company, association, or other organization to
take over all of the Trust property or the Trust property allocated or belonging
to such Series to carry on any business in which the Trust shall directly or
indirectly have any interest, and to sell, convey and transfer the Trust
property or the Trust property allocated or belonging to such Series to any such
corporation, trust, limited liability company, partnership, association, or
organization in exchange for the shares or securities of, and enter into any
contracts with any such corporation, trust, partnership, limited liability
company, association, or organization, or any corporation, partnership, limited
liability trust company, trust, association, or organization in which the Trust
or such Series holds or is about to acquire shares or any other interest.
Subject to applicable Federal and state law, the Trustees may also cause a
merger or consolidation between the Trust or any successor thereto and any such
corporation, trust, partnership, limited liability company, association, or
other organization. Nothing contained herein shall be construed as requiring
approval of Shareholders for the Trustee to organize or assist in organizing one
or more corporations, trusts, partnerships, limited liability companies,
associations, or other organizations and selling, conveying, or transferring the
Trust property or a portion of the Trust property to such organizations or
entities; provided, however, that the Trustees shall provide written notice to
the affected Shareholders of any transaction whereby, pursuant to this Section
8, the Trust or any Series thereof sells, conveys, or transfers substantially
all of its assets to another entity or merges or consolidates with another
entity. Such transactions may be effected through share-for-share exchanges,
transfers or sale of assets, shareholder in-kind redemptions and purchases,
exchange offers, or any other method approved by the Trustees.
Section 9. Filing of Copies, Reference, Headings.
-------------------------------------------------
The original or a copy of this instrument and of each amendment hereto shall be
kept at the office of the Trust where it may be inspected by any Shareholder. A
copy of this instrument and of each amendment hereto shall be filed by the Trust
with the Secretary of The Commonwealth of Massachusetts and with any other
governmental office where such filing may from time to time be required. Anyone
dealing with the Trust may rely on a certificate by an officer of the Trust as
to whether or not any such amendments have been made and as to any matters in
connection with the Trust hereunder; and, with the same effect as if it were the
original, may rely on a copy certified by an officer of the Trust to be a copy
of this instrument or of any such amendments. In this instrument and in any such
amendment, references to this instrument, and all expressions like "herein,"
"hereof" and "hereunder," shall be deemed to refer to this instrument as amended
or affected by any such amendments. Headings are placed herein for convenience
of reference only and shall not be taken as a part hereof or to 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.
-22-
Section 10. Applicable Law.
------------------------------
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 that are ordinarily
exercised by such a trust, and the absence of a specific reference herein to any
such power, privilege or action shall not imply that the Trust may not exercise
such power or privilege or take such actions.
Section 11. Amendments.
-------------------------
Except as specifically provided herein, the Trustees may without shareholder
vote, amend or otherwise supplement this Declaration of Trust by making an
amendment, a Declaration of Trust supplemental hereto or an amended and restated
Declaration of Trust. Shareholders shall have the right to vote (a) on any
amendment that would affect their right to vote granted in Section 1 of Article
V; (b) on any amendment to this Section 11; (c) on any amendment as may be
required by law or by the Trust's registration statement files with the
Commission; and (d) on any amendment submitted to them by the Trustees. Any
amendment required or permitted to be submitted to Shareholders that, as the
Trustees determine, shall affect the Shareholders of one or more Series or
Classes shall be authorized by vote of the Shareholders of each Series or Class
affected and no vote of shareholders of a Series or Class not affected shall be
required. Notwithstanding anything else herein, any amendment to Article VII
shall not limit the rights to limited liability provided therein with respect to
action or omission of the Trustees prior to such amendment.
Section 12. Fiscal Year.
--------------------------
The fiscal year of the Trust and/or any Series thereof shall be established by
the Trustees as set forth in the By-Laws.
Section 13. Use of the Word "Nvest".
------------------------------------------
Nvest Companies, L.P. (Nvest Companies) has consented to the use by any Series
of the Trust of the identifying word "Nvest" in the name of any Series of the
Trust at some future date. Such consent is conditioned upon the employment of
Nvest Companies or a subsidiary or affiliate thereof as investment adviser of
such Series. As between the Trust and itself, Nvest Companies controls the use
of the name of the Trust insofar as such name contains the identifying word
"Nvest." Nvest Companies may from time to time use the identifying word "Nvest"
in other connections and for other purposes, including, without limitation, in
the names of other investment companies, corporations, or businesses that it may
manage, advise, sponsor or own or in which it may have a financial interest.
Nvest Companies may require the Trust or any Series thereof to cease using the
identifying word "Nvest" in the name of the Trust or any Series thereof if the
Trust or any Series thereof ceases to employ Nvest Companies or a subsidiary or
affiliate thereof as investment adviser.
Section 14. Provisions in Conflict with Law or Regulations.
--------------------------------------------------------------
(a) The provisions of this Declaration of Trust are severable, and, if the
Trustees shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the regulated investment company
provision of the Internal Revenue Code or with other applicable laws and
regulations, the conflicting provision shall be deemed never to have constituted
a part of this Declaration of Trust; provided, however, that such determination
shall not affect any of the remaining provisions of this Declaration of Trust;
provided, however, that such determination shall not affect any of the remaining
provisions of this Declaration of
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Trust or render invalid or improper any action taken or omitted prior to such
determination.
(b) If any provision of this Declaration Trust shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdictions and shall not in any manner
affect such provisions in any other jurisdiction or any other provision of this
Declaration of Trust in any jurisdiction.
Section 15. Addresses.
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The address of the Trust is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
The address of the Trustees is c/o Nvest Services Company, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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IN WITNESS WHEREOF, the undersigned, being all of the Trustees of the
Trust, have executed this instrument as of the date set forth above.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Boston, March 17, 2000
Then personally appeared the above named ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
acknowledged the foregoing instrument to be their free acts and deeds, before
me.
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Notary Public
My commission expires: 12-08-06