EAGLE FUNDS
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made this 10th day of August, 1999, 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 business trust 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
SECTION ▇.▇▇▇▇, REGISTERED AGENT AND PRINCIPAL PLACE OF BUSINESS
This Trust shall be known as the "Eagle Funds" 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 Lexis Document Services, Inc., ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other person as the Trustees may from
time to time designate. The principal place of business of the Trust is
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. The Trustees
may, without the approval of shareholders, change the registered agent and
the principal place of business of the Trust.
SECTION 2.DEFINITIONS
Whenever used herein, unless otherwise required by the context or
specifically provided:
(a) The "Trust" refers to the Massachusetts business trust established by
this Agreement and Declaration of Trust, as amended from time to time,
pursuant to Massachusetts General Laws, Chapter 182.
(b) "Trustee" or "Trustees" refers to the signatory to this Agreement and
Declaration of Trust so long as such signatory shall continue in
office in accordance with the terms hereof, and all other individuals
who at the time in question have been duly elected or appointed and
qualified in accordance with Article IV and are then in office.
(c) "Shares" mean the shares of beneficial interest described in Article
III hereof and include fractions of shares as well as whole shares;
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company Act of 1940 (and any
successor statute) and the Rules and Regulations thereunder, all as
amended from time to time;
(f) The terms "Affiliated Person," "Assignment," "Commission," "Interested
Person," "Principal Underwriter" and "vote of a majority of the
outstanding voting securities" 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 VII 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
SECTION 1.DIVISION OF BENEFICIAL INTEREST
(a) Shares of Beneficial Interest. The beneficial interest in the Trust
shall be divided into such transferable Shares of beneficial interest,
of such series or classes, and of such designations and par values (if
any) and with such rights, preferences, privileges and restrictions as
shall be determined by the Trustees in their sole discretion, without
Shareholder approval, from time to time. Without limiting the
authority of the Trustees set forth in this Article to establish and
designate any further series or classes, the Trustees hereby establish
and designate a single series of shares to be known as the "The
Nasdaq 100 Index Fund Series" which shall initially consist of three
classes of transferable shares (without par value). The number of
Shares is unlimited and each Share shall be fully paid and
nonassessable. The Trustees shall have full power and authority, in
their sole discretion and without obtaining any prior authorization
or vote of the Shareholders of the Trust or of the Shareholders of
any series or class of Shares, to create and establish (and to change
in any manner) Shares or any series or classes thereof with such
preferences, voting powers, rights and privileges as the Trustees may
from time to time determine; to divide or combine the Shares or the
Shares of any series or classes thereof into a greater or lesser
number; to classify or reclassify any issued Shares into one or more
series or classes of Shares; to abolish any one or more series or
classes of Shares; and to take such other action with respect to the
Shares as the Trustees may deem desirable. Except as may be
specifically set forth in subsection (b) of Section 1 of this
Article III or in an instrument establishing and
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designating classes or series of Shares, the Shares shall have the
powers, preferences, rights, qualifications, limitations and
restrictions described below:
(i) In the event of the termination of the Trust, the holders of the
Shares shall be entitled to receive pro rata the net
distributable assets of the Trust.
(ii) Each holder of Shares shall be entitled to one vote for each
Share held on each matter submitted to a vote of Shareholders,
and the holders of outstanding Shares shall vote together as
a single class.
(iii) Dividends or other distributions to Shareholders, when, as and
if declared or made by the Trustees, shall be shared equally by
the holders of Shares on a share for share basis, such dividends
or other distributions or any portion thereof to be paid in cash
or to be reinvested in full and fractional Shares of the Trust
as the Trustees shall direct.
(iv) Any Shares purchased, redeemed or otherwise reacquired by the
Trust shall be cancelled automatically upon redemption or
repurchase and the number of issued and outstanding Shares
shall thereupon be reduced by such amount.
(v) Shares may be issued from time to time, without the vote of the
Shareholders (or, if the Trustees in their sole discretion deem
advisable with a vote of Shareholders), either for cash or for
such other consideration (which may be in any one or more
instances a certain specified consideration or certain
specified considerations) and on such terms as the Trustees,
from time to time, may deem advisable, and the Trust may in
such manner acquire other assets (including the acquisition of
assets subject to, and in connection with the assumption of
liabilities).
(vi) The Trust may issue Shares in fractional denominations to the
same extent as its whole Shares, and Shares in fractional
denominations shall be Shares having proportionately to the
respective fractions represented thereby all the rights of
whole Shares, including, without limitation, and the right to
vote, the right to receive dividends and distributions and the
right to participate upon termination of the Trust. The
Trustees may from time to time, without the vote of
Shareholders, divide or combine Shares into a greater or
lesser number without thereby changing their proportionate
beneficial interest in the Trust.
(b) Establishment of Series and Classes of Shares.
(i) Series. The Trustees, in their sole discretion, without
obtaining any prior authorization or vote of the Shareholders
of the Trust or of the Shareholders of any series or class of
Shares, from time to time may authorize the division of Shares
into two or more series, the number and relative rights,
privileges and preferences of which shall be established and
designated by the Trustees, in their discretion, upon and
subject to the following provisions:
(1) All Shares shall be identical except that there may be such
variations as shall be fixed and determined by the Trustees between
different series as to purchase price, right of redemption, and the
price, terms and manner of redemption, and special and relative rights
as to dividends and on liquidation.
(2) The number of authorized Shares and the number of Shares of
each series that may be issued shall be unlimited. The Trustees may
classify or reclassify any unissued Shares or any Shares previously
issued and reacquired of any series into one or more series that may
be established and designated from time to time. The Trustees may
hold as treasury shares (of the same or some other series), reissue
for such consideration and on such terms as they may determine, or
cancel any Shares of any series reacquired by the Trust at their
discretion from time to time.
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(3) The power of the Trustees to invest and reinvest the assets
of the Trust allocated or belonging to any particular series shall be
governed by Section 2, Article IV hereof unless otherwise provided in
the instrument of the Trustees establishing such series which is
hereinafter described.
(4) Each Share of a series shall represent a beneficial interest
in the net assets allocated or belonging to such series only, and such
interest shall not extend to the assets of the Trust generally.
Dividends and distributions on Shares of a particular series may be
paid with such frequency as the Trustees may determine, which may be
monthly or otherwise, pursuant to a standing vote or votes adopted
only once or with such frequency as the Trustees may determine, to the
Shareholders of that series only, from such of the income and capital
gains, accrued or realized, from the assets belonging to that series.
All dividends and distributions on Shares of a particular series shall
be distributed pro rata to the Shareholders of that series in
proportion to the number of Shares of that series held by such
Shareholders at the date and time of record established for the
payment of such dividends or distributions. Shares of any particular
series of the Trust may be redeemed solely out of the assets of the
Trust allocated or belongings to that series. Upon liquidation or
termination of a series of the Trust, Shareholders of such series
shall be entitled to receive a pro rata share of the net assets of
such series only.
(5) Notwithstanding any provision hereof to the contrary, on
any matter submitted to a vote of the Shareholders of the Trust, all
Shares then entitled to vote shall be voted by individual series,
except that (i) when required by the 1940 Act to be voted in the
aggregate, Shares shall not be voted by individual series, (ii) when
the Trustees have determined that the matter affects only the
interests of Shareholders of one or more series, only Shareholders
of such series shall be entitled to vote thereon, and (iii) all
series shall vote together on the election of Trustees.
(6) The establishment and designation of any series of Shares (in
addition to the initial series noted in Subsection (a) of Section 1 of
this Article) shall be effective upon the execution by a majority of
the Trustees of an instrument setting forth such establishment and
designation and the relative rights and preferences of such series or
as otherwise provided in such instrument.
(ii) Classes. Notwithstanding anything in this Declaration of
Trust to the contrary, the Trustees may, in their discretion,
without obtaining any prior authorization or vote of the
Shareholders of the Trust or of the Shareholders of any series
or class of Shares, from time to time authorize the division
of Shares of the Trust or any series thereof into Shares of
one or more classes upon the execution by a majority of the
Trustees of an instrument setting forth such establishment
and designation and the relative rights and preferences of
such class or classes. All Shares of a class shall be
identical with each other and with the Shares of each other
class of the same series except for such variations between
classes as may be approved by the Board of Trustees and set
forth in such instrument of establishment and designation and
be permitted under the 1940 Act or pursuant to any exemptive
order issued by the Commission.
SECTION 2.OWNERSHIP OF SHARES
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 class and as to the number of
Shares of each series and class held from time to time by each Shareholder.
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SECTION ▇.▇▇▇▇▇▇▇▇▇▇▇ IN THE TRUST; ASSETS OF A SERIES
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 assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds thereof,
including any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of such proceeds
in whatever form the same may be, shall irrevocably belong to such series of
Shares for all purposes, subject only to the rights of creditors, and shall be
so recorded upon the books of account of the Trust and are, together with any
General Items (as hereinafter defined) allocated to that series as provided in
the following sentence. In the event that there are any assets, income,
earnings, profits or proceeds thereof, funds or payments which are not readily
identifiable as belonging to any particular series (collectively "General
Items"), the Trustees shall allocate such General Items to and among any one or
more of the series created from time to time in such manner and on such basis as
they, in their sole discretion, deem fair and equitable; and any General Items
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.
SECTION 4.RIGHT TO REFUSE ORDERS
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.
SECTION 5.ORDER IN PROPER FORM
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.
SECTION 6.WHEN SHARES BECOME OUTSTANDING
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.
SECTION 7.MERGER OR CONSOLIDATION
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.
SECTION ▇.▇▇ PREEMPTIVE RIGHTS, ETC.
Shareholders shall have no preemptive or other right to acquire, purchase
or subscribe for any additional Shares or other securities issued by the Trust
other than such right, if any, as the Trustees in their discretion may
determine.
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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.
SECTION 9.STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY
Shares shall be deemed to be personal property giving only the rights
provided in this instrument. Every Shareholder by virtue of having become a
Shareholder 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 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 10.SHAREHOLDER INSPECTION RIGHTS
Any Shareholder or his agent may inspect and copy during normal business
hours any of the following documents of the Trustee: the Declaration of Trust,
By-Laws, minutes of the proceedings of the Shareholders and annual financial
statements of the Trust, including a balance sheet and financial statements of
operations. The foregoing rights of inspection of Shareholders of the Trust are
the exclusive and sole rights of the Shareholders with respect thereto and no
shareholder of the Trust shall have, as a Shareholder, the right to inspect or
copy any of the books, records or other documents of the Trust except as
specifically provided in this Section 10 of this Article III or except as
otherwise determined by the Trustees.
ARTICLE IV
THE TRUSTEES
SECTION 1.NUMBER, DESIGNATION, ELECTION, TERM, ETC.
(a) Initial Trustee. Upon her execution of this Declaration of Trust or a
counterpart hereof or some other writing in which she accepts such
Trusteeship and agrees to the provisions hereof, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ shall
become a Trustee hereof.
(b) Qualification and Number. Each Trustee shall be a natural person. A
Trustee need not be a Shareholder, a citizen of the United States, or a
resident of the Commonwealth of Massachusetts. The Trustees serving as
such, whether named above or hereafter becoming Trustees, may by vote or
consent of a majority of Trustees then in office 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 (d) 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 his successor is
elected and qualified, if any, elected at such meeting, or until such
Trustee sooner dies, resigns, retires or is removed. Any Trustee who is
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appointed by the Trustees in the interim to fill a vacancy as provided
hereunder shall have the same remaining term as that of his predecessor,
if any, or such term as the Trustees may determine. 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 Removal. Any Trustee may resign his trust or retire as a
Trustee (without need for prior or subsequent accounting except in the
event of removal) by an instrument in writing signed by him and delivered
or mailed to the Chairman, if any, the President or the Secretary, and
such resignation or retirement shall be effective upon such delivery, or
at a later date according to the terms of the instrument. Any Trustee
who has become incapacitated by illness or injury as determined by a
majority of the other Trustees, may be retired by written instrument
signed by a majority of the other Trustees. Except as aforesaid, any
Trustee may be removed from office only for "Cause" (as hereinafter
defined) and only (i) by action of at least sixty-six and two-thirds
percent (66-2/3%) of the outstanding Shares, or (ii) by written
instrument, signed by at least sixty- six and two-thirds percent
(66-2/3%) of the remaining Trustees, specifying the date when such
removal shall become effective. "Cause" shall require willful
misconduct, dishonesty, fraud or a felony conviction.
(e) Vacancies. Any vacancy or anticipated vacancy resulting from any reason,
including without limitation the death, resignation, retirement, removal
or incapacity of any of the Trustees, or resulting from an increase in
the number of Trustees by the other Trustees may (but so long as there
are at least three remaining Trustees as required by Section 1(b) of
this Article, need not unless required by the ▇▇▇▇ ▇▇▇) be filled either
by a majority of the remaining Trustees 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.
Whenever a vacancy in the number of Trustees shall occur, until such
vacancy is filled as provided herein, or the number of Trustees as fixed
is reduced, the Trustees in office, regardless of their number, shall
have all the powers granted to the Trustees, and during the period
during which any such vacancy shall occur, only the Trustees then in
office shall be counted for the purposes of the existence of a quorum
or any action to be taken by such Trustees.
(f) Mandatory Election by Shareholders. Notwithstanding the foregoing
provisions of this Section 1, the Trustees shall call a meeting of the
Shareholders for the election of one or more Trustees at such time or
times as may be required in order that the provisions of the 1940 Act
may be complied with, and the authority hereinabove provided for the
Trustees to appoint any successor Trustee or Trustees shall be
restricted if such appointment would result in failure of the Trust to
comply with any provision of the 1940 Act.
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(g) Effect of Death, Resignation, Etc. The death, resignation, retirement,
removal or incapacity of the Trustees, or any one of them, shall not
operate to annul or terminate the Trust or to revoke or terminate any
existing agency or contract created or entered into pursuant to the
terms of this Declaration of Trust.
(h) No Accounting. Except under circumstances which would justify his
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.
(i) Voting Requirements. In addition to the voting requirements imposed by
law or by any other provision of this Declaration of Trust, the
provisions set forth in this Article IV may not be amended, altered or
repealed in any respect, nor may any provision inconsistent with this
Article IV be adopted, without the affirmative vote of the holders of at
least sixty-six and two-thirds percent (66-2/3%) of the outstanding
Shares. In the event the holders of the outstanding shares of any
series or class are required by law or any other provision of this
Declaration of Trust to approve such an action by a class vote of such
holders, such action must be approved by the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the outstanding Shares of
such series or class or such lower percentage as may be required by law.
SECTION 2.POWERS
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. The
enumeration of any power herein shall not be construed as limiting the aforesaid
powers. 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 5 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 any purpose; 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 employee of the Trust or to
any such investment adviser, investment subadviser, transfer agent, custodian,
underwriter or other independent contractor or agent of the Trust.
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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 options and futures contracts,
derivatives or structured securities; 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) and, without limitation, all other kinds
and types of financial instruments;
(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 to 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 or class of Shares or to apportion the same among two or more
series or classes, provided that any liabilities or expenses incurred by a
particular series or class shall be payable solely out of the assets of
that series or class;
(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;
9
(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;
(1) 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 of or all such obligations;
(o) To purchase and pay for entirely out of Trust property such insurance as
they may deem necessary or appropriate for the conduct of the business,
including, without limitation, insurance policies insuring the assets of
the Trust and payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, investment advisers or managers, principal
underwriters, or independent contractors of the Trust individually against
all claims and liabilities of every nature arising by reason of holding,
being or having held any such office or position, or by reason of any
action alleged to have been taken or omitted by any such person as
Shareholder, Trustee, officer, employee, agent, investment adviser or
manager, principal underwriter, or independent contractor, including any
action taken or omitted that may be determined to constitute negligence,
whether or not the Trust would have the power to indemnify such person
against such liability;
(p) To pay pensions for faithful service, as deemed appropriate by the
Trustees, and to adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of providing
such retirement and other benefits, for any or all of the Trustees,
officers, employees and agents of the Trust;
(q) Subject to Article X, Section 1 hereof, to merge, or consolidate the Trust
with any other corporation, association, trust or other organization; or
to sell, convey, transfer, or lease all or substantially all of the
assets of the Trust;
(r) To issue, sell, repurchase, retire, cancel, acquire, hold, resell,
reissue, dispose of, transfer and otherwise deal in Shares and in any
options, warrants or other rights to purchase Shares or any other
interests in the Trust other than Shares;
(s) To set apart, from time to time, out of any funds of the Trust a reserve
or reserves for any proper purpose, and to abolish any such reserve;
(t) To establish, from time to time, a minimum total investment for
Shareholders, and to require the redemption of the Shares of any
Shareholders whose investment is less than such minimum upon such terms as
shall be established by the Trustees; and
(u) To make distributions to Shareholders.
Except as otherwise provided herein, in the By-Laws or the 1940 Act, 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.
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SECTION 3.PAYMENT OF EXPENSES, ALLOCATION OF LIABILITIES
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
(including reimbursements to themselves for expenses and disbursements) 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 incurred in respect of such series and with all expenses, costs,
charges, and reserves attributable to that series (including, in the discretion
of the Trustees, or their delegate, accrued expenses and reserves) and shall be
so recorded upon the books of the Trust. Liabilities, expenses, costs, charges
and reserves charged to a particular series, together with any General Items (as
hereinafter defined) allocated to that series as provided in the following
sentence, are herein referred to as "liabilities of" that series. In the event
there are any general liabilities, expenses, costs, charges or reserves of the
Trust which are not readily identifiable as belonging to any particular series
(collectively "General Items"), the Trustees shall allocate and charge such
General Items to and among any one or more of the series created from time to
time in such manner and on such basis as the Trustees in their sole discretion
deem fair and equitable; and any General Items so allocated and charges 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. 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.
SECTION 4.OWNERSHIP OF ASSETS OF THE TRUST
The assets of each Series of the Trust and of the Trust shall be held
separate and apart from any assets now or hereafter held in any capacity other
than as Trustee hereunder by the Trustees or any successor Trustees. All of the
assets of each Series of the Trust and of the Trust shall at all times be
considered as automatically vested in the Trustees as shall be from time to time
in office. Upon the resignation, retirement, removal, incapacity or death of a
Trustee, such Trustee shall automatically cease to have any right, title or
interest in any of the Trust property, and the right, title and interest of such
Trustee in the Trust property shall vest automatically in the remaining
Trustees. Such vesting and cessation of title shall be effective without the
execution or delivery of any conveyancing or other instruments. No Shareholder
shall be deemed to have a severable ownership in any individual asset of the
Trust or any Series thereof or any right of partition or possession thereof.
SECTION 5.ADVISORY, MANAGEMENT AND DISTRIBUTION
Subject to approval by the vote of a majority of the outstanding voting
securities of a series of the Trust to the extent required by the 1940 Act, the
Trustees may on behalf of such series, at any time and from time to time,
contract for exclusive or nonexclusive advisory and/or management services with
a corporation, trust, association or other organization, every such contract to
comply with such requirements and restrictions as may be set forth in the By-
Laws; and any such contract may contain such other terms interpretive of or in
addition to said requirements and restrictions as the Trustees may determine,
including, without limitation, authority to determine from time to time what
investments shall be purchased, held, sold or exchanged and what portion, if
any, of the assets of such series shall be held uninvested and to make changes
in such series' investments. The Trustees may also, at any time and from time
to time, contract with a corporation, trust, association or other organization,
appointing it exclusive or nonexclusive distributor or principal underwriter for
the Shares, every such contract to comply with such requirements and
restrictions as may be set forth in the By-Laws; and any such contract may
contain such other terms interpretive of or in addition to said requirements and
restrictions as the Trustees may determine. The Trustees may also in their
discretion from time to time enter into transfer agency and/or shareholder
service contracts, in each case,
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with such terms and conditions, and providing for such compensation, as the
Trustees may in their discretion deem advisable.
The fact that:
(a) any of the Shareholders, Trustees, or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager,
advisor, principal underwriter, or distributor or agent of or for any
corporation, trust, association, or other organization, or of or for any
parent or affiliate of any organization, with which an advisory or
management or principal underwriter's or distributor's contract, or
transfer, Shareholder services or other agency contract or contract of the
character described in Article VI (a "custodial 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, custodial 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, custodial 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.
In addition to the foregoing, the same person (including a firm, corporation,
partnership, trust or association) may be the other party to contracts entered
into pursuant to this section or Article VI and any individual may be
financially interested or otherwise affiliated with persons who are parties to
any or all of the contracts mentioned in this section and Article VI.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION ▇.▇▇▇▇▇▇ POWERS
The Shareholders shall have power to vote only: (a) for the election or
removal of Trustees as provided in Article IV, Section 1; (b) with respect to
any investment advisor or manager as provided in Article IV, Section 5 to the
extent required by the 1940 Act; (c) with respect to any termination or
reorganization of the Trust or any series thereof to the extent and as provided
in Article X, Section 1; (d) with respect to any amendment of this Declaration
of Trust to the extent and as provided in Article X, Section 4 or Article IV,
Section 1(i); (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. Nothing
contained herein shall be construed as requiring approval of Shareholders for
any transaction, whether deemed a reorganization, merger, consolidation or
otherwise whereby the Trust issues shares in connection with the acquisition of
assets (including those subject to liabilities) from any other investment
company or similar entity.
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 except that Shares held in the treasury (if any)
of the Trust shall not be voted. Notwithstanding any other provision of the
Declaration of Trust, on any matter submitted to a vote
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of Shareholders all Shares of the Trust then entitled to vote shall be voted by
individual series and not in the aggregate, except as provided in Sections
1(b)(i)(5) and 1(b)(ii) of Article III. There shall be no cumulative voting in
the election of Trustees or on any matter submitted to a vote by Shareholders.
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 contract 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.
SECTION 2.SHAREHOLDER MEETINGS
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 ten days' written notice of any
meeting of the Shareholders, except where the meeting is an adjourned meeting
and the date, time and place were announced at the time of adjournment.
SECTION 3.QUORUM AND REQUIRED VOTE
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. If a quorum is present
when a duly called or held meeting is convened, the Shareholders present may
continue to transact business until adjournment, even though the withdrawal of a
number of Shareholders originally present leaves less than the proportion or
number otherwise required for a quorum.
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 Shares 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.
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SECTION 4.ACTION BY WRITTEN CONSENT
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.
SECTION 5.ADDITIONAL PROVISIONS
The By-Laws may include further provisions for Shareholders' votes and
meetings and related matters not inconsistent with the provisions hereof.
ARTICLE VI
CUSTODIAN
All securities and cash of the Trust shall be held by one or more custodians
and subcustodians, each meeting the requirements for a custodian contained in
the 1940 Act, or shall otherwise be held in accordance with the 1940 Act.
ARTICLE VII
DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES,
AND DETERMINATION OF NET ASSET VALUE
SECTION 1.DISTRIBUTIONS
The Trustees may in their sole discretion from time to time declare and pay
or may prescribe and set forth in a duly adopted vote or votes of the Trustees,
the bases and time for the declaration and payment to the Shareholders of any
series such dividends and distributions, 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 good accounting practices. The Trustees shall have full discretion to
determine which items shall be treated as income and which items as capital and
their determination shall be binding upon the Shareholders. Distributions of
any series, if any be made, shall be in Shares of such series or a class
thereof, 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 thereof, 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 thereof. 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 1954 as amended (or any
successor thereto) to avoid any liability for federal income tax in respect of
that year.
SECTION 2.REDEMPTIONS AND REPURCHASES
Any holder of Shares of the Trust may upon 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
14
provisions of this Section 2 and the provisions of Section 6 of this Article VII
(less any applicable sales charge and redemption fee).
Upon receipt by the Trust or its duly authorized agent, as the case may be,
of such a request for redemption of Shares in proper form, such Shares shall be
redeemed at the net asset value per share of the particular series or class
thereof (less any applicable sales charge or redemption fee) 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 ▇▇▇▇ ▇▇▇. 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 or class
thereof 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 the purchase 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, unless the Trustees determine to hold such required Shares in the
treasury of the Trust or otherwise.
SECTION 3.PAYMENT FOR SHARES REDEEMED
Payment of the redemption price for Shares of the Trust or any series or
class thereof redeemed pursuant to this Article VII 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. 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.
SECTION 4.REDEMPTIONS AT THE OPTION OF THE TRUST
The Trustees, in their sole discretion, may cause the Trust to redeem Shares
of the Trust or one or more series thereof held by any Shareholder at the net
asset value thereof as determined in accordance with Section 6 of this Article
VII, 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, the minimum
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.
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SECTION 5.ADDITIONAL PROVISIONS RELATING TO REDEMPTIONS AND REPURCHASES
The completion of redemption, purchase or repurchase of Shares shall
constitute a full discharge of the Trust or series thereof 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.
SECTION 6.DETERMINATION OF NET ASSET VALUE
The Trustees may in their sole discretion from time to time prescribe and
shall set forth in the By-Laws or in a duly adopted vote or votes of the
Trustees such bases and times for determining the per Share net asset value of
the Shares and the valuation of portfolio assets as they deem necessary or
desirable.
The Trust may suspend the determination of net asset value during any period
when it may suspend the right of the holders of Shares to require the Trust to
redeem Shares.
SECTION ▇.▇▇▇ LONG SHARES ARE OUTSTANDING
Shares of the Trust surrendered to the Trust for redemption by it pursuant to
the provisions of Section 2 of this Article VII shall be deemed to be
outstanding until the redemption price thereof is determined pursuant to this
Article VII 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 VII 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 VIII
COMPENSATION AND LIMITATION OF LIABILITY OF TRUSTEES
SECTION 1.COMPENSATION
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.
SECTION 2.LIMITATION OF LIABILITY
No personal liability for any debt or obligation of the Trust shall attach to
any Trustee of the Trust. Without limiting the foregoing, a Trustee shall not
be responsible or liable in any event for any neglect or wrongdoing of any
officer, agent, employee, investment advisor or subadvisor 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.
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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.
SECTION 3.TRUSTEES' 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 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 party to any contract entered into hereunder.
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.
ARTICLE IX
INDEMNIFICATION
Subject to the exceptions and limitations contained in this Article, every
person who is, or has been, a Trustee, officer, employee or agent of the Trust
(including persons who serve at the request of the Trust as directors, officers,
trustees, employees or agents of another organization in which the Trust has an
interest as a shareholder, creditor or otherwise) hereinafter referred to as a
"Covered Person," shall be indemnified by the Trust to the fullest extent
permitted by law against liability and against all expenses reasonably incurred
or paid by him 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, officer, employee or agent and against amounts
paid or incurred by him in settlement thereof.
17
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,
administrative or other, including appeals), actual or threatened; and the words
"liability" and "expenses" shall include without limitation, attorneys' fees,
costs, judgments, accounts paid in settlement, fines, penalties and other
liabilities.
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No personal liability for any debt or obligation of the Trust shall attach to
any Shareholder or former Shareholder of the Trust. 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. The Trust shall, upon request of the
Shareholder or former Shareholder, assume the defense of any claim made against
the Shareholder for any act or obligation of the Trust and satisfy any judgment
thereon.
ARTICLE X
MISCELLANEOUS
SECTION 1.DURATION, TERMINATION AND REORGANIZATION OF TRUST
Unless terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be terminated at any time by the Trustees by
written notice to the Shareholders without a vote of the Shareholders of the
Trust, or the Trust may be terminated by the vote of the Shareholders entitled
to vote more than fifty percent (50%) of the votes entitled to be cast on the
matter. If the Trust has more than one series, 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 be
determined by the Trustees, the Trust shall in accordance with such procedures
as the Trustees consider appropriate reduce the remaining assets of the
particular series to distributable form in cash or other securities, or any
combination thereof, and distribute the proceeds to the Shareholders of the
Trust or the series involved, in the manner set forth by resolution of the
Trustees.
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 the affected series) among the Shareholders
of the series the assets belonging to which have been so transferred; and if all
of the assets of the Trust (or series as the case may be) have been so
transferred, the Trust (or series) shall be terminated.
SECTION 2.FILING OF COPIES, REFERENCES, HEADINGS
The original or a copy of this instrument and of each amendment hereto shall
be kept at the office of the Trust where it may be inspected by any Shareholder.
A copy of this instrument and of each amendment hereto shall be filed by the
Trust with the Secretary of The Commonwealth of Massachusetts, as well as any
other governmental
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office where such filing may from time to time be required, provided,
however, that failure to so file will not invalidate this instrument or any
properly authorized amendment thereto. 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 a whole and as amended from time
to time. Masculine pronouns used herein shall be deemed to include the feminine
and the neuter, as the case requires. Headings are placed herein for
convenience of reference only and shall not be taken as a part hereof or control
or affect the meaning, construction or effect of this instrument. This
instrument may be executed in any number of counterparts each of which shall be
deemed an original.
SECTION 3.APPLICABLE LAW
The Trust set forth in this instrument shall be deemed 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. No provision of this Declaration
shall be effective to require a waiver of compliance with any provisions of the
Securities Act of 1933, as amended, or the 1940 Act, or of any valid rule,
regulation or of the Commission thereunder.
SECTION 4.AMENDMENTS
Except as otherwise specifically provided in this Declaration of Trust, 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 entitled to
vote, except that an amendment which shall affect the holders of one or more
series or classes of Shares but not the holders of all outstanding series or
classes shall be authorized by vote of the Shareholders holding more than fifty
percent (50%) of the Shares entitled to vote of each series and class affected
and no vote of Shareholders of a series or class not affected shall be required.
In addition, notwithstanding any other provisions to the contrary contained in
this Declaration of Trust, the Trustees may amend this Declaration of Trust
without the vote or consent of Shareholders (i) at any time if the Trustees deem
it necessary in order for the Trust or any series or class thereby to meet the
requirements of applicable Federal or State laws or regulations, or the
requirements of the regulated investment company provisions of the Internal
Revenue Code, (ii) to designate series or classes or exercise other powers with
respect thereto in accordance with Section 1 of Article III hereof, (iii) change
the name of the Trust or to supply any omission, cure any ambiguity or cure,
correct or supplement any defective or inconsistent provision contained herein,
or (iv) for any reason at any time before a registration statement under the
Securities Act of 1933, as amended, covering the initial public offering of
Shares has become effective.
SECTION 5.TRUSTEES MAY RESOLVE AMBIGUITIES
The Trustees may construe any of the provisions of this Declaration insofar
as the same may appear to be ambiguous or inconsistent with any other provisions
hereof, and any such construction hereof by the Trustees in good faith shall be
conclusive as to the meaning to be given to such provisions.
SECTION 6.USE OF THE NAME
The Trust is adopting its trust name and the name of the first Series of the
proposed fund by permission of ▇▇▇▇▇▇ & Associates ("RAI"), and the Trust's
right to use the name "Eagle Funds" and the name "The Nasdaq 100 Index Fund" is
subject to the right of RAI or its successors or assigns at any time to control
the usage of the name
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"Eagle Funds" and the name "The Nasdaq 100 Index Fund" by the Trust and to
direct that the Trust stop using the name "Eagle Funds" and/or the name "The
Nasdaq 100 Index Fund" in any form or combination as part of its name, service
▇▇▇▇, as a Series of the Trust, and in any literature or reference whatsoever.
All proprietary interest in the names "Eagle Funds" and "The Nasdaq 100 Index
Fund" shall remain exclusively the property of RAI, and at the written request
of RAI 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 "Eagle Funds" and/or the name "The
Nasdaq 100 Index 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 6 do not preclude the use of the
names "Eagle Funds" or "The Nasdaq 100 Index Fund" by any other person or
organization, whether now existing or hereafter created, to which RAI 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Suite 150
250 N. Rock Road
Wichita, Kansas 67206
STATE OF KANSAS )
) SS.
COUNTY OF SEDGWICK )
Then personally appeared the above-named ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ who acknowledged
the foregoing instrument to be his free act and deed, before me this 1st day of
October, 1999.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Notary Public
My Commission Expires: 4/9/01
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