▇▇▇▇▇▇ TAX SMART FUNDS TRUST
(formerly known as ▇▇▇▇▇▇ Tax Managed Funds Trust)
AMENDED AND RESTATED AGREEMENT
AND DECLARATION OF TRUST
This AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made at
Boston, Massachusetts, on this 15th day of July, 1999, hereby amends and
restates in its entirety the Agreement and Declaration of Trust dated April
6, 1999, as heretofore amended, by the Trustees hereunder, and by the
holders of shares of beneficial interest issued hereunder as hereinafter
provided. This Amended and Restated Agreement and Declaration of Trust
shall be effective upon filing with the Secretary of State of The
Commonwealth of Massachusetts.
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
Name
Section 1. This Trust shall be known as "▇▇▇▇▇▇ Tax Smart Funds Trust,"
and the Trustees shall conduct the business of the Trust under that name or
any other name as they may from time to time determine.
Definitions
Section 2. Whenever used herein, unless otherwise required by the context
or specifically provided:
(a) The "Trust" refers to the Massachusetts business trust established by
this Agreement and Declaration of Trust, as amended from time to time;
(b) "Trustees" refers to the Trustees of the Trust named herein or elected
in accordance with Article IV;
(c) "Shares" means the equal proportionate transferable units of interest
into which the beneficial interest in the Trust shall be divided from time
to time or, if more than one series or class of Shares is authorized by the
Trustees, the equal proportionate transferable units into which each series
or class of Shares shall be divided from time to time;
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company Act of 1940 and the
Rules and Regulations thereunder, all as amended from time to time;
(f) The terms "Affiliated Person", "Assignment", "Commission", "Interested
Person", "Principal Underwriter" and "Majority Shareholder Vote" (the 67%
or 50% requirement of the third sentence of Section 2(a)(42) of the 1940
Act, whichever may be applicable) shall have the meanings given them in the
1940 Act;
(g) "Declaration of Trust" shall mean this Agreement and Declaration of
Trust as amended or restated from time to time;
(h) "Bylaws" shall mean the Bylaws of the Trust as amended from time to
time;
(i) The term "series" or "series of Shares" refers to the one or more
separate investment portfolios of the Trust into which the assets and
liabilities of the Trust may be divided and the Shares of the Trust
representing the beneficial interest of Shareholders in such respective
portfolios; and
(j) The term "class" or "class of Shares" refers to the division of Shares
representing any series into two or more classes as provided in
Article III, Section 1 hereof.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to provide investors a managed investment
primarily in securities, debt instruments and other instruments and rights
of a financial character.
ARTICLE III
Shares
Division of Beneficial Interest
Section 1. The Shares of the Trust shall be issued in one or more series
as the Trustees may, without shareholder approval, authorize. Each series
shall be preferred over all other series in respect of the assets allocated
to that series within the meaning of the 1940 Act and shall represent a
separate investment portfolio of the Trust. The beneficial interest in
each series shall at all times be divided into Shares, without par value,
each of which shall, except as provided in the following sentence,
represent an equal proportionate interest in the series with each other
Share of the same series, none having priority or preference over another.
The Trustees may, without Shareholder approval, divide the Shares of any
series into two or more classes, Shares of each such class having such
preferences and special or relative rights and privileges (including
conversion rights, if any) as the Trustees may determine and as shall be
set forth in the Bylaws. The number of Shares authorized shall be
unlimited. The Trustees may from time to time divide or combine the Shares
of any series or class into a greater or lesser number without thereby
changing the proportionate beneficial interest in the series or class.
Ownership of Shares
Section 2. The ownership of Shares shall be recorded on the books of the
Trust or a transfer or similar agent. No certificates certifying the
ownership of Shares shall be issued except as the Trustees may otherwise
determine from time to time. The Trustees may make such rules as they
consider appropriate for the issuance of Share certificates, the transfer
of Shares and similar matters. The record books of the Trust as kept by
the Trust or any transfer or similar agent, as the case may be, shall be
conclusive as to who are the Shareholders of each series and class and as
to the number of Shares of each series and class held from time to time by
each Shareholder.
Investment in the Trust
Section 3. The Trustees shall accept investments in the Trust from such
persons and on such terms and for such consideration, which may consist of
cash or tangible or intangible property or a combination thereof, as they
or the Bylaws from time to time authorize.
All consideration received by the Trust for the issue or sale of Shares of
each series, together with all income, earnings, profits, and proceeds
thereof, including any proceeds derived from the sale, exchange or
liquidation thereof, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall
irrevocably belong to the series of Shares with respect to which the same
were received by the Trust for all purposes, subject only to the rights of
creditors, and shall be so handled upon the books of account of the Trust
and are herein referred to as "assets of" such series.
No Preemptive Rights
Section 4. Shareholders shall have no preemptive or other right to
subscribe to any additional Shares or other securities issued by the Trust.
Status of Shares and Limitation of Personal Liability
Section 5. Shares shall be deemed to be personal property giving only the
rights provided in this Declaration of Trust or the Bylaws. Every
Shareholder by virtue of having become a Shareholder shall be held to have
expressly assented and agreed to the terms of this Declaration of Trust and
the Bylaws and to have become a party thereto. The death of a Shareholder
during the continuance of the Trust shall not operate to terminate the same
nor entitle the representative of any deceased Shareholder to an accounting
or to take any action in court or elsewhere against the Trust or the
Trustees, but only to the rights of said decedent under this Trust.
Ownership of Shares shall not entitle the Shareholder to any title in or to
the whole or any part of the Trust property or right to call for a
partition or division of the same or for an accounting, nor shall the
ownership of Shares constitute the Shareholders partners. Neither the
Trust nor the Trustees, nor any officer, employee or agent of the Trust
shall have any power to bind personally any Shareholder, nor except as
specifically provided herein to call upon any Shareholder for the payment
of any sum of money or assessment whatsoever other than such as the
Shareholder may at any time personally agree to pay.
ARTICLE IV
The Trustees
Election
Section 1. A Trustee may be elected either by the Trustees or by the
Shareholders. The number of Trustees shall be fixed from time to time by
the Trustees and, at or after the commencement of the business of the
Trust, shall be not less than three. Each Trustee elected by the Trustees
or the Shareholders shall serve until he or she retires, resigns, is
removed or dies or until the next meeting of Shareholders called for the
purpose of electing Trustees and until the election and qualification of
his or her successor. At any meeting called for the purpose, a Trustee may
be removed by vote of the holders of two-thirds of the outstanding Shares.
The initial Trustees, each of whom shall serve until the first meeting of
Shareholders at which Trustees are elected and until his or her successor
is elected and qualified, or until he or she sooner dies, resigns or is
removed, shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and such other
persons as the Trustee or Trustees then in office shall, prior to any sale
of Shares pursuant to a public offering, appoint.
Effect of Death, Resignation, etc. of a Trustee
Section 2. The death, declination, resignation, retirement, removal or
incapacity of the Trustees, or any one of them, shall not operate to annul
the Trust or to revoke any existing agency created pursuant to the terms of
this Declaration of Trust.
Powers
Section 3. 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.
Without limiting the foregoing, the Trustees may adopt Bylaws not
inconsistent with this Declaration of Trust providing for the conduct of
the business of the Trust and may amend and repeal them to the extent that
such Bylaws do not reserve that right to the Shareholders; they may fill
vacancies in or add to their number, and 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, any one or more
committees consisting of two or more Trustees, including an executive
committee which may, when the Trustees are not in session, exercise some or
all of the power and authority of the Trustees as the Trustees may
determine; they may employ one or more custodians of the assets of the
Trust and may authorize such custodians to employ subcustodians and to
deposit all or any part of such assets in a system or systems for the
central handling of securities, retain a transfer agent or a Shareholder
servicing agent, or both, provide for the distribution of Shares by the
Trust, through one or more principal underwriters or otherwise, set record
dates for the determination of Shareholders with respect to various
matters, and in general delegate such authority as they consider desirable
to any officer of the Trust, to any committee of the Trustees and to any
agent or employee of the Trust or to any such custodian or underwriter.
Without limiting the foregoing, the Trustees shall have power and
authority:
(a) To invest and reinvest cash, and to hold cash uninvested;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, write options
on and lease any or all of the assets of the Trust;
(c) To 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 which 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 the name of
the Trustees or of the Trust or in the name of a custodian, subcustodian or
other depositary or a nominee or nominees or otherwise;
(f) Subject to the provisions of Article III, Section 3, to allocate
assets, liabilities, income and expenses of the Trust to a particular
series of Shares or to apportion the same among two or more series,
provided that any liabilities or expenses incurred by or arising in
connection with a particular series of Shares shall be payable solely out
of the assets of that series; and to the extent necessary or appropriate to
give effect to the preferences and special or relative rights and
privileges of any classes of Shares, to allocate assets, liabilities,
income and expenses of a series to a particular class of Shares of that
series or to apportion the same among two or more classes of Shares of that
series;
(g) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer, any security of which
is or was held in the Trust; to consent to any contract, lease, mortgage,
purchase or sale of property by such corporation or issuer, and to pay
calls or subscriptions with respect to any security held in the Trust;
(h) To join other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit
any security with, or transfer any security to, any such committee,
depositary or trustee, and to delegate to them such power and authority
with relation to any security (whether or not so deposited or transferred)
as the Trustees shall deem proper, and to agree to pay, and to pay, such
portion of the expenses and compensation of such committee, depositary or
trustee as the Trustees shall deem proper;
(i) 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;
(j) To enter into joint ventures, general or limited partnerships and any
other combinations or associations;
(k) To borrow funds;
(l) 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;
(m) To purchase and pay for entirely out of Trust property such insurance
as they may deem necessary or appropriate for the conduct of the business,
including without limitation, insurance policies insuring the assets of the
Trust and payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, investment advisers or managers, principal
underwriters, or independent contractors of the Trust individually against
all claims and liabilities of every nature arising by reason of holding,
being or having held any such office or position, or by reason of any
action alleged to have been taken or omitted by any such person as
Shareholder, Trustee, officer, employee, agent, investment adviser or
manager, principal underwriter, or independent contractor, including any
action taken or omitted that may be determined to constitute negligence,
whether or not the Trust would have the power to indemnify such person
against such liability; and
(n) To pay pensions for faithful service, as deemed appropriate by the
Trustees, and to adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of providing
such retirement and other benefits, for any or all of the Trustees,
officers, employees and agents of the Trust.
The Trustees shall not in any way be bound or limited by any present or
future law or custom in regard to investments by trustees. Except as
otherwise provided herein or from time to time in the Bylaws, any action to
be taken by the Trustees may be taken by a majority of the Trustees present
at a meeting of the Trustees (a quorum being present), within or without
Massachusetts, including any meeting held by means of a conference
telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other at the same time and
participation by such means shall constitute presence in person at a
meeting, or by written consents of a majority of the Trustees then in
office.
Payment of Expenses by Trust
Section 4. The Trustees are authorized to pay or to cause to be paid out
of the assets of the Trust, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the Trust, or in
connection with the management thereof, including, but not limited to, the
Trustees' compensation and such expenses and charges for the services of
the Trust's officers, employees, investment adviser or manager, principal
underwriter, auditor, counsel, custodian, transfer agent, Shareholder
servicing agent, and such other agents or independent contractors and such
other expenses and charges as the Trustees may deem necessary or proper to
incur, provided, however, that all expenses, fees, charges, taxes and
liabilities incurred by or arising in connection with a particular series
of Shares shall be payable solely out of the assets of that series.
Ownership of Assets of the Trust
Section 5. Title to all of the assets of each series of Shares and of the
Trust shall at all times be considered as vested in the Trustees.
Advisory, Management and Distribution
Section 6. Subject to a favorable Majority Shareholder Vote, the Trustees
may, at any time and from time to time, contract for exclusive or
nonexclusive advisory and/or management services with any corporation,
trust, association or other organization (the "Manager"), every such
contract to comply with such requirements and restrictions as may be set
forth in the Bylaws; 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 the Trust shall be
held uninvested and to make changes in the Trust's investments. The
Trustees may also, at any time and from time to time, contract with the
Manager or any other corporation, trust, association or other organization,
appointing it exclusive or nonexclusive distributor or principal
underwriter for the Shares, every such contract to comply with such
requirements and restrictions as may be set forth in the Bylaws; and any
such contract may contain such other terms interpretive of or in addition
to said requirements and restrictions as the Trustees may determine.
The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager,
adviser, principal underwriter or distributor or agent of or for any
corporation, trust, association, or other organization, or of or for any
parent or affiliate of any organization, with which an advisory or
management contract, or principal underwriter's or distributor's contract,
or transfer, Shareholder servicing or other agency contract may have been
or may hereafter be made, or that any such organization, or any parent or
affiliate thereof, is a Shareholder or has an interest in the Trust, or
that
(ii) any corporation, trust, association or other organization with which
an advisory or management contract or principal underwriter's or
distributor's contract, or transfer, Shareholder servicing or other agency
contract may have been or may hereafter be made also has an advisory or
management contract, or transfer, Shareholder servicing or other agency
contract with one or more other corporations, trusts, associations, or
other organizations, or has other business or interests
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing
the same or create any liability or accountability to the Trust or its
Shareholders.
ARTICLE V
Shareholders' Voting Powers and Meetings
Voting Powers
Section 1. Subject to the voting powers of one or more classes of Shares
as set forth elsewhere in this Declaration of Trust or in the Bylaws, the
Shareholders shall have power to vote only (i) for the election of Trustees
as provided in Article IV, Section 1, (ii) for the removal of Trustees as
provided in Article IV, Section 1, (iii) with respect to any Manager as
provided in Article IV, Section 6, (iv) with respect to any termination of
this Trust to the extent and as provided in Article IX, Section 4, (v) with
respect to any amendment of this Declaration of Trust to the extent and as
provided in Article IX, Section 7, (vi) 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 (vii) with respect to such additional matters relating to
the Trust as may be required by this Declaration of Trust, the Bylaws or
any registration of the Trust with the Securities and Exchange Commission
(or any successor agency) or any state, or as the Trustees may consider
necessary or desirable. Each whole Share shall be entitled to one vote as
to any matter on which it is entitled to vote and each fractional Share
shall be entitled to a proportionate fractional vote. 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 Bylaws, be voted in the
aggregate as a single class without regard to series or classes of shares,
except (1) 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 (2) when the Trustees have determined that 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. 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. Until Shares of any series or class are issued, the
Trustees may exercise all rights of Shareholders and may take any action
required by law, this Declaration of Trust or the Bylaws to be taken by
Shareholders as to such series or class.
Voting Power and Meetings
Section 2. Meetings of Shareholders of any or all series or classes may be
called by the Trustees from time to time for the purpose of taking action
upon any matter requiring the vote or authority of the Shareholders of such
series or classes as herein provided or upon any other matter deemed by the
Trustees to be necessary or desirable. Written notice of any meeting of
Shareholders shall be given or caused to be given by the Trustees by
mailing such notice at least seven days before such meeting, postage
prepaid, stating the time, place and purpose of the meeting, to each
Shareholder entitled to vote at such meeting at the Shareholder's address
as it appears on the records of the Trust. If the Trustees shall fail to
call or give notice of any meeting of Shareholders for a period of 30 days
after written application by Shareholders holding at least 10% of the then
outstanding shares of all series and classes entitled to vote at such
meeting requesting a meeting to be called for a purpose requiring action by
the Shareholders as provided herein or in the Bylaws, then Shareholders
holding at least 10% of the then outstanding Shares of all series and
classes entitled to vote at such meeting may call and give notice of such
meeting, and thereupon the meeting shall be held in the manner provided for
herein in case of call thereof by the Trustees. Notice of a meeting need
not be given to any Shareholder if a written waiver of notice, executed by
him or her before or after the meeting, is filed with the records of the
meeting, or to any Shareholder who attends the meeting without protesting
prior thereto or at its commencement the lack of notice to him or her.
Quorum and Required Vote
Section 3. Thirty percent of Shares entitled to vote on a particular
matter shall be a quorum for the transaction of business on that matter at
a Shareholders' meeting, except that where any provision of law or of this
Declaration of Trust or the bylaws requires that holders of any series or
class shall vote as an individual series or class, then thirty percent of
the aggregate number of Shares of that series or class entitled to vote
shall be necessary to constitute a quorum for the transaction of business
by that series or class. Any lesser number shall be sufficient for
adjournments. Any adjourned session or sessions may be held, within a
reasonable time after the date set for the original meeting, without the
necessity of further notice. Except when a larger vote is required by any
provision of law or of this Declaration of Trust or the Bylaws, a majority
of the Shares voted shall decide any questions and a plurality shall elect
a Trustee, provided that where any provision of law or of this Declaration
of Trust or the bylaws requires that the holders of any series or class
shall vote as an individual series or class then a majority of the Shares
of that series or class voted on the matter (or a plurality with respect to
the election of a Trustee) shall decide that matter insofar as that series
or class is concerned.
Action by Written Consent
Section 4. Any action taken by Shareholders may be taken without a meeting
if a majority of Shareholders 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 the Bylaws) consent to the action in writing
and such written consents are filed with the records of the meetings of
Shareholders. Such consent shall be treated for all purposes as a vote
taken at a meeting of Shareholders.
Additional Provisions
Section 5. The Bylaws may include further provisions, not inconsistent
with this Declaration of Trust, regarding Shareholders' voting powers, the
conduct of meetings and related matters.
ARTICLE VI
Distributions, Redemptions and Repurchases
Distributions
Section 1. The Trustees may each year, or more frequently if they so
determine, distribute to the Shareholders of each series out of the assets
of such series such amounts as the Trustees may determine. Any such
distribution to the Shareholders of a particular series shall be made to
said Shareholders pro rata in proportion to the number of Shares of such
series held by each of them, except to the extent otherwise required or
permitted by the preferences and special or relative rights and privileges
of any classes of Shares of that Series, and any distribution to the
Shareholders of a particular class of Shares shall be made to such
Shareholders pro rata in proportion to the number of Shares of such class
held by each of them. Such distributions shall be made in cash, Shares or
other property, or a combination thereof, as determined by the Trustees.
Any such distribution paid in Shares will be paid at the net asset value
thereof as determined in accordance with the Bylaws.
Redemptions and Repurchases
Section 2. The Trust shall purchase such Shares as are offered by any
Shareholder for redemption, upon the presentation of any certificate for
the Shares to be purchased, a proper instrument of transfer and a request
directed to the Trust or a person designated by the Trust that the Trust
purchase such Shares, or in accordance with such other procedures for
redemption as the Trustees may from time to time authorize; and the Trust
will pay therefor the net asset value thereof, as next determined in
accordance with the Bylaws, less any redemption charge fixed by the
Trustees. Payment for said Shares shall be made by the Trust to the
Shareholder within seven days after the date on which the request is made.
The obligation set forth in this Section 2 is subject to the provision that
in the event that at any time the New York Stock Exchange is closed for
other than customary weekends or holidays, or, if permitted by rules of the
Securities and Exchange Commission, during periods when trading on the
Exchange is restricted or during any emergency which makes it impractical
for the Trust to dispose of its investments or to determine fairly the
value of its net assets, or during any other period permitted by order of
the Securities and Exchange Commission for the protection of investors,
such obligation may be suspended or postponed by the Trustees. The Trust
may also purchase or repurchase Shares at a price not exceeding the net
asset value of such Shares in effect when the purchase or repurchase or any
contract to purchase or repurchase is made. Payment for any redemption,
purchase or repurchase may be made in cash or in other property, or any
combination thereof. The composition of any such payment shall be
determined by the Trust in its sole discretion, and the Trust shall have no
obligation to effect a pro rata division of cash or other property in
making any such payment. In no event shall the Trust be liable for any
delay of any other person in transferring securities or other property
selected for delivery as all or part of any such payment.
Redemption at the Option of the Trust
Section 3. The Trust shall have the right at its option and at any time to
redeem Shares of any Shareholder at the net asset value thereof as
determined in accordance with the Bylaws: (i) if at such time such
Shareholder owns fewer Shares than, or Shares having an aggregate net asset
value of less than, an amount determined from time to time by the Trustees;
or (ii) to the extent that such Shareholder owns Shares of a particular
series of Shares equal to or in excess of a percentage of the outstanding
Shares of that series determined from time to time by the Trustees; or
(iii) to the extent that such Shareholder owns Shares of the Trust
representing a percentage equal to or in excess of such percentage of the
aggregate number of outstanding Shares of the Trust or the aggregate net
asset value of the Trust determined from time to time by the Trustees.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
Compensation
Section 1. The Trustees as such shall be entitled to reasonable
compensation from the Trust; 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.
Limitation of Liability
Section 2. The Trustees shall not be responsible or liable in any event
for any neglect or wrongdoing of any officer, agent, employee, manager or
principal underwriter of the Trust, nor shall any Trustee be responsible
for the act or omission of any other Trustee, but nothing herein contained
shall protect any Trustee against any liability to which he or she would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of
his or her office.
Every note, bond, contract, instrument, certificate or undertaking and
every other act or thing whatsoever executed or done by or on behalf of the
Trust or the Trustees or any of them in connection with the Trust shall be
conclusively deemed to have been executed or done only in or with respect
to their or his or her capacity as Trustees or Trustee, and such Trustees
or Trustee shall not be personally liable thereon.
ARTICLE VIII
Indemnification
Trustees, Officers, etc.
Section 1. The Trust shall indemnify each of its Trustees and officers
(including persons who serve at the Trust's request as directors, officers
or trustees of another organization in which the Trust has any interest as
a shareholder, creditor or otherwise) (hereinafter referred to as a
"Covered Person") against all liabilities and expenses, including but not
limited to amounts paid in satisfaction of judgments, in compromise or as
fines and penalties, and counsel fees reasonably incurred by any Covered
Person in connection with the defense or disposition of any action, suit or
other proceeding, whether civil or criminal, before any court or
administrative or legislative body, in which such Covered Person may be or
may have been involved as a party or otherwise or with which such Covered
Person may be or may have been threatened, while in office or thereafter,
by reason of being or having been such a Covered Person except with respect
to any matter as to which such Covered Person shall have been finally
adjudicated in any such action, suit or other proceeding (a) not to have
acted in good faith in the reasonable belief that such Covered Person's
action was in the best interest of the Trust or (b) to be liable to the
Trust or its Shareholders by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the
conduct of such Covered Person's office. Expenses, including counsel fees
so incurred by any such Covered Person (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines or penalties), shall
be paid from time to time by the Trust in advance of the final disposition
of any such action, suit or proceeding upon receipt of an undertaking by or
on behalf of such Covered Person to repay amounts so paid to the Trust if
it is ultimately determined that indemnification of such expenses is not
authorized under this Article, provided, however, that either (a) such
Covered Person shall have provided appropriate security for such
undertaking, (b) the Trust shall be insured against losses arising from any
such advance payments or (c) either a majority of the disinterested
Trustees acting on the matter (provided that a majority of the
disinterested Trustees then in office act on the matter), or independent
legal counsel in a written opinion, shall have determined, based upon a
review of readily available facts (as opposed to a full trial type inquiry)
that there is reason to believe that such Covered Person will be found
entitled to indemnification under this Article.
Compromise Payment
Section 2. As to any matter disposed of (whether by a compromise payment,
pursuant to a consent decree or otherwise) without an adjudication by a
court, or by any other body before which the proceeding was brought, that
such Covered Person either (a) did not act in good faith in the reasonable
belief that his or her action was in the best interests of the Trust or (b)
is liable to the Trust or its Shareholders by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office, indemnification shall
be provided if (a) approved as in the best interests of the Trust, after
notice that it involves such indemnification, by at least a majority of the
disinterested Trustees acting on the matter (provided that a majority of
the disinterested Trustees then in office act on the matter) upon a
determination, based upon a review of readily available facts (as opposed
to a full trial type inquiry) that such Covered Person acted in good faith
in the reasonable belief that his or her action was in the best interests
of the Trust and is not liable to the Trust or its Shareholders by reason
of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his or her office, or (b) there
has been obtained an opinion in writing of independent legal counsel, based
upon a review of readily available facts (as opposed to a full trial type
inquiry) to the effect that such Covered Person appears to have acted in
good faith in the reasonable belief that his or her action was in the best
interests of the Trust and that such indemnification would not protect such
Covered Person against any liability to the Trust to which he or she would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of
his or her office. Any approval pursuant to this Section shall not prevent
the recovery from any Covered Person of any amount paid to such Covered
Person in accordance with this Section as indemnification if such Covered
Person is subsequently adjudicated by a court of competent jurisdiction not
to have acted in good faith in the reasonable belief that such Covered
Person's action was in the best interests of the Trust or to have been
liable to the Trust or its Shareholders by reason of willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in
the conduct of such Covered Person's office.
Indemnification Not Exclusive
Section 3. The right of indemnification hereby provided shall not be
exclusive of or affect any other rights to which such Covered Person may be
entitled. As used in this Article VIII, the term "Covered Person" shall
include such person's heirs, executors and administrators and a
"disinterested Trustee" is a Trustee who is not an "interested person" of
the Trust as defined in Section 2(a)(19) of the 1940 Act (or who has been
exempted from being an "interested person" by any rule, regulation or order
of the Securities and Exchange Commission) and against whom none of such
actions, suits or other proceedings or another action, suit or other
proceeding on the same or similar grounds is then or has been pending.
Nothing contained in this Article shall affect any rights to
indemnification to which personnel of the Trust, other than Trustees or
officers, and other persons may be entitled by contract or otherwise under
law, nor the power of the Trust to purchase and maintain liability
insurance on behalf of any such person.
Shareholders
Section 4. 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 representative or in the case of a
corporation or other entity, its corporate or other general successor)
shall be entitled to be held harmless from and indemnified against all loss
and expense arising from such liability, but only out of the assets of the
particular series of Shares of which he or she is or was a Shareholder.
ARTICLE IX
Miscellaneous
Trustees, Shareholders, etc. Not Personally Liable; Notice
Section 1. 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
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.
Every note, bond, contract, instrument, certificate or undertaking made or
issued by the Trustees or by any officer or officers shall give notice that
this Declaration of Trust is on file with the Secretary of State 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 and not individually and that the obligations of
such instrument are not binding upon any of them or the Shareholders
individually but are binding only upon the assets and property of the
Trust, and may contain such further recital as he or she or they may deem
appropriate, but the omission thereof shall not operate to bind any Trustee
or Trustees or officer or officers or Shareholder or Shareholders
individually.
Trustee's Good Faith Action, Expert Advice, No Bond or Surety
Section 2. 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. 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.
Liability of Third Persons Dealing with Trustee
Section 3. 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.
Duration and Termination of Trust
Section 4. Unless terminated as provided herein, the Trust shall continue
without limitation of time. The Trust or any series may be terminated at
any time by the Trustees by written notice to the Shareholders of each
series entitled to vote or by the affirmative vote of the lessor of (1)
more than 50% of the outstanding Shares of each series entitled to vote, or
(2) 67% or more of the Shares of each series entitled to vote and present
at a meeting called for this purpose if more than 50% of the outstanding
Shares of each series entitled to vote are present at the meeting in person
or by proxy or by the Trustees by written notice to the Shareholders. Upon
termination of the Trust or of any one or more series of Shares, after
paying or otherwise providing for all charges, taxes, expenses and
liabilities, whether due or accrued or anticipated, of the Trust or of the
particular series as may be determined by the Trustees, the Trust shall in
accordance with such procedures as the Trustees consider appropriate reduce
the remaining assets to distributable form in cash or shares or other
property, or any combination thereof, and distribute the proceeds to the
Shareholders of the series involved, ratably according to the number of
Shares of such series held by the several Shareholders of such series on
the date of termination, except to the extent otherwise required or
permitted by the preferences and special or relative rights and privileges
of any classes of Shares of that series, provided that any distribution to
the Shareholders of a particular class of Shares shall be made to such
Shareholders pro rata in proportion to the number of Shares of such class
held by each of them.
Filing and Copies, References, Headings
Section 5. 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 State of The Commonwealth
of Massachusetts and with the Boston City Clerk, as well as any other
governmental office where such filing may from time to time be required.
Anyone dealing with the Trust may rely on a certificate by an officer of
the Trust as to whether or not any such amendments have been made and as to
any matters in connection with the Trust hereunder, and, with the same
effect as if it were the original, may rely on a copy certified by an
officer of the Trust to be a copy of this instrument or of any such
amendments. In this instrument and in any such amendment, references to
this instrument and all expressions like "herein", "hereof" and "hereunder"
shall be deemed to refer to this instrument as amended or affected by any
such amendments. Headings are placed herein for convenience of reference
only and shall not be taken as a part hereof or control or affect the
meaning, construction or effect of this instrument. This instrument may be
executed in any number of counterparts each of which shall be deemed an
original.
Applicable Law
Section 6. This Declaration of Trust is made in The Commonwealth of
Massachusetts, and it is created under and is to be governed by and
construed and administered according to the laws of said Commonwealth. The
Trust shall be of the type commonly called a Massachusetts business trust
and, without limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a trust.
Amendments
Section 7. This Declaration of Trust may be amended at any time by an
instrument in writing signed by a majority of the then Trustees when
authorized to do so by vote of Shareholders holding a majority of the
Shares entitled to vote, except that an amendment which in the
determination of the Trustees shall affect the holders of one or more
series or classes of Shares but not the holders of all outstanding series
and classes shall be authorized by vote of the Shareholders holding a
majority 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. Amendments having the purpose of changing the name of the Trust
or of supplying any omission, curing any ambiguity or curing, correcting or
supplementing any defective or inconsistent provision contained herein
shall not require authorization by Shareholders vote.
IN WITNESS WHEREOF, the undersigned, being a majority of the Trustees of
the Trust, hereunto set their hands and seals in the City of Boston,
Massachusetts for themselves and their assigns, as of the day and year
first above written.
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▇▇▇▇ ▇. ▇▇▇▇▇▇, III
THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Boston, July 15, 1999
Then personally appeared each of the above named Trustees of ▇▇▇▇▇▇ Tax
Smart Funds Trust and acknowledged the foregoing instrument to be his or
her free act and deed, before me,
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Notary Public
My Commission Expires:
September 18, 2003
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TRUSTEES ADDRESSES
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