Exhibit (a)(1)
CDC NVEST COMPANIES TRUST I
RESTATEMENT OF AMENDED
AGREEMENT AND DECLARATION OF TRUST
THIS RESTATEMENT OF AMENDED AGREEMENT AND DECLARATION OF TRUST made at
Boston, Massachusetts this 25th day of April, 2002, by the Trustees whose
signatures are affixed hereto, restating the Agreement and Declaration of
Trusted dated the 17th day of March, 2000 (the "Original Declaration of Trust"),
as amended to the date hereof:
WITNESSETH that
WHEREAS, the Trustees adopted the Original Declaration of Trust on
March 17, 2000 and Amendment No. 1 to the Original Declaration of Trust on March
23, 2001;
WHEREAS, the Trustees desire at this time to restate the Original
Declaration of Trust, as amended (as so amended, the "Current Declaration of
Trust"), in order to incorporate into one document the Original Declaration of
Trust and Amendment No 1. thereto;
WHEREAS, the Trustees intend that such restatement not amend any
substantive provisions of the Current Declaration of Trust;
WHEREAS, the Trustees have agreed to manage all property coming into
their hands as trustees of a Massachusetts business trust in accordance with the
provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby restate the Original Declaration of
Trust to incorporate any amendments thereto in one document and direct that this
Restatement of Amended Agreement and Declaration of Trust be filed with the
Secretary of The Commonwealth of Massachusetts and with the City Clerk of the
City of Boston and do hereby declare that they will hold all cash, securities
and other assets, which they may from time to time acquire in any manner as
Trustees hereunder, IN TRUST to manage and dispose of the same upon the
following terms and conditions for the benefit of the holders from time to time
of shares in this Trust as hereinafter set forth.
ARTICLE I
Name and Definitions
SECTION 1. This Trust shall be known as "CDC Nvest Companies Trust I"
and the Trustees shall conduct the business of the Trust under that name or any
other name as they may from time to time determine.
SECTION 2. DEFINITIONS. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) "By-Laws" shall mean the By-Laws of the Trust, if any, as amended
from time to time;
(b) The terms "Class" and "Class of Shares" refer to each class of
Shares into which the Shares of any Multi-Class Series may from time to time be
divided in accordance with the provisions hereof.
(c) The terms "Commission," "Majority Shareholder Vote"(the 67% or 50%
requirement of the third sentence of Section 2(a)(42) of the 1940 Act (as
defined hereinafter), whichever may be applicable) and "Principal Underwriter"
shall have the meanings given them in the 1940 Act, as defined herein;
(d) "Declaration of Trust" or "Declaration" shall mean this Agreement
and Declaration of Trust, as amended or restated from time to time;
(e) "Multi-Class Series" refers to each Series of Shares established
and designated as Multi-Class Series under or in accordance with the provisions
hereof;
(f) "Shareholder" means a record owner of Shares;
(g) "Shares" means the equal proportionate transferable units of
interest into which the beneficial interest in the Trust or in the Trust
property belonging to any Series of the Trust shall be divided from time to
time, including such Class or Classes of Shares as the Trustees may from time to
time create and establish and including fractions of Shares as well as whole
Shares as is consistent with the requirements of Federal and/or state securities
laws;
(h) "Series" refers to any series of Shares established and designated
under or in accordance with the provisions hereof;
(i) "Series Company" refers to the form of registered open-end
investment company described in Section 18(f)(2) of the 1940 Act (as defined
hereinafter) or in any successor statutory provision;
(j) "Trust" refers to the Massachusetts business trust established by
this Agreement and Declaration of Trust, as amended from time to time;
(k) "Trustees" refers to the individual trustees of the Trust in their
capacity as trustees hereunder and their successor or successors for the time
being in office as such trustee or trustees; and
(l) "1940 Act" refers to the Investment Company Act of 1940 and the
rules and regulations thereunder, all as amended from time to time or as
modified by or interpreted by any applicable order or orders of the Commission
or interpretive releases of the Commission thereunder.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to provide investors a continuous source of
managed investment primarily in securities.
ARTICLE III
Shares
SECTION 1. DIVISION OF BENEFICIAL INTEREST. The beneficial interest in
the Trust shall at all times be divided into an unlimited number of Shares. Each
Share shall be without par value and shall be fully paid and non-assessable.
Subject to the provisions of Section 6 of this Article III, each Share shall
have voting rights as provided in Article V hereof, and holders of the Shares of
any Series or Class shall be entitled to receive dividends, when and as declared
with respect thereto in the manner provided in Article VI, Section 1 hereof.
Except as otherwise provided in Section 6 of this Article III with respect to
Shares of Multi-Class Series, no Share shall have any priority or preference
over any other Share of the same Series with respect to dividends or
distributions upon termination of the Trust or of such Series made pursuant to
Article VIII, Section 6 hereof. Except as otherwise provided in Section 6 of
this Article III with respect to Shares of Multi-Class Series, all dividends and
distributions shall be made ratably among all Shareholders of a particular
Series from the assets belonging to such Series according to the number of
Shares of such Series held of record by such Shareholders on the record date for
any dividend or distribution or on the date of termination, as the case may be.
The Trustees may from time to time (a) divide or combine the Shares of
any particular Series or Class into a greater or lesser number of Shares of that
Series or Class without thereby changing the proportionate beneficial interest
of the Shares of that Series or Class in the assets belonging to that Series or
attributable to that Class or in any way affecting the rights of Shares of any
other Series or Class or (b) take such other action with respect to the Shares
as the Trustees may deem necessary or desirable.
SECTION 2. OWNERSHIP OF SHARES. The ownership of Shares shall be
recorded on the books of the Trust or a transfer or similar agent for the Trust,
which books shall be maintained separately for the Shares of each Series and
Class. No certificates certifying the ownership of Shares shall be issued except
as the Trustees may otherwise determine from time to time. The Trustees may make
such rules as they consider appropriate for the transfer of Shares of each
Series and Class and similar matters. The record books of the Trust as kept by
the Trust or any transfer or similar agent, as the case may be, shall be
conclusive as to who are the Shareholders of each Series and Class and as to the
number of Shares of each Series and Class held from time to time by each
Shareholder.
SECTION 3. INVESTMENTS IN THE TRUST. The Trustees shall accept
investments in the Trust from such persons and on such terms and for such
consideration as they from time to time authorize. The Trustees may, in their
sole discretion, impose a sales charge or other fee upon investments in the
Trust or Series or any Classes thereof and issue fractional Shares.
SECTION 4. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY.
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 hereof and to
have become a party hereto. The death of a Shareholder during the continuance of
the Trust shall not operate to terminate the same nor entitle the representative
of any deceased Shareholder to an accounting or to take any action in court or
elsewhere against the Trust or the Trustees, but entitles such representative
only to the rights of said deceased Shareholder under this Trust. Ownership of
Shares shall not entitle the Shareholder to any title in or to the whole or any
part of the Trust property or right to call for a partition or division of the
same or for an accounting, nor shall the ownership of Shares constitute the
Shareholders partners. Neither the Trust nor the Trustees, nor any officer,
employee or agent of the Trust, shall have any power to bind personally any
Shareholders, nor, except as specifically provided herein, to call upon any
Shareholder for the payment of any sum of money or assessment whatsoever other
than such as the Shareholder may at any time personally agree to pay.
SECTION 5. POWER OF TRUSTEES TO CHANGE PROVISIONS RELATING TO SHARES.
Notwithstanding any other provisions of this Declaration of Trust and without
limiting the power of the Trustees to amend the Declaration of Trust as provided
elsewhere herein, the Trustees shall have the power to amend this Declaration of
Trust, at any time and from time to time, in such manner as the Trustees may
determine in their sole discretion, without the need for Shareholder action, so
as to add to, delete, replace or otherwise modify any provisions relating to the
Shares contained in this Declaration of Trust for the purpose of responding to
or complying with any regulations, orders, rulings or interpretations of any
governmental agency or any laws, now or hereafter applicable to the Trust or
otherwise; provided that before adopting any such amendment the Trustees shall
determine that it is consistent with the fair and equitable treatment of all
Shareholders.
Without limiting the generality of the foregoing, the Trustees may:
(a) create one or more Series or Classes of Shares (in addition to any
Series or Classes already existing or otherwise) with such rights and
preferences and such eligibility requirements for investment therein as the
Trustees shall determine and reclassify any or all outstanding Shares as shares
of particular Series or Classes in accordance with such eligibility
requirements;
(b) amend any of the provisions set forth in paragraphs (a) through
(j) of Section 6 of this Article III;
(c) combine one or more Series or Classes of Shares into a single
Series or Class on such terms and conditions as the Trustees shall determine;
(d) change or eliminate any eligibility requirements for investment in
Shares of any Series or Class, including, without limitation, the power to
provide for the issuance of Shares of any Series or Class in connection with any
merger or consolidation of the Trust with another trust or company or any
acquisition by the Trust of part or all of the assets of another trust or
company;
(e) change the designation of any Series or Class of Shares;
(f) change the method of allocating dividends among the various Series
and Classes of Shares;
(g) allocate any specific assets or liabilities of the Trust or any
specific items of income or expense of the Trust to one or more Series or
Classes of Shares; and
(h) specifically allocate assets to any or all Series of Shares or
create one or more additional Series of Shares that are preferred over all other
Series of Shares in respect of assets specifically allocated thereto or any
dividends paid by the Trust with respect to any net income, however determined,
earned from the investment and reinvestment of any assets so allocated or
otherwise and provide for any special voting or other rights with respect to
such Series or any Classes of Shares thereof.
SECTION 6. ESTABLISHMENT AND DESIGNATION OF SERIES AND CLASSES. The
establishment of any Series or Class thereof shall be effective upon the
adoption of a resolution by a majority of the then Trustees setting forth such
establishment and designation and the relative rights and preferences of the
Shares of such Series or Class. Whether directly in such resolution or by
reference to, or approval of, another document that sets forth such relative
rights and preferences of the shares of such Series or Class, including, without
limitation, any registration statement of the Trust, or as otherwise provided in
such resolution. At any time that there are no Shares outstanding of any
particular Series or Class previously established and designated, the Trustees
may by a majority vote or written consent abolish such Series or Class and the
establishment and designation thereof.
Shares of each Series established shall have the following rights and
preferences relative to Shares of each other Series, and Shares of each Class of
a Multi-Class Series shall have such rights and preferences relative to other
Classes of the same Series as are set forth below, together with such other
rights and preferences relative to such other Classes as are set forth in any
resolution of the Trustees establishing and designating such Series or Class of
Shares:
(a) ASSETS BELONGING TO SERIES. Subject to the provisions of paragraph
(c) of this Section 6:
All consideration received by the Trust for the issue or sale of Shares
of a particular Series, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits and proceeds thereof from
whatever source derived, including, without limitation, any proceeds derived
from the sale, exchange or liquidation of such assets, and any funds or payments
derived from any reinvestment of such proceeds in whatever form the same may be,
shall irrevocably belong to that Series for all purposes, subject only to the
rights of creditors, and shall be so recorded upon the books of account of the
Trust. Such consideration, assets, income, earnings, profits and proceeds
thereof, from whatever source derived, including, without limitation, any
proceeds derived from the sale, exchange or liquidation of such assets, and any
funds or payments derived from any reinvestment of such proceeds, in whatever
form the same may be, are herein referred to as "assets belonging to" that
Series. In the event that there are any assets, income, earnings, profits and
proceeds thereof, funds or payments that are not readily identifiable as
belonging to any particular Series (collectively "General Assets"), the Trustees
shall allocate such General Assets to, between or among any one or more of the
Series established and designated from time to time in such manner and on such
basis as they, in their sole discretion, deem fair and equitable, and any
General Asset so allocated to a particular Series shall belong to that Series.
Each such allocation by the Trustees shall be conclusive and binding upon the
Shareholders of all Series for all purposes. No Shareholder or former
Shareholder of any Series shall have a claim on or any right to any assets
allocated or belonging to any other Series.
(b) LIABILITIES BELONGING TO SERIES. Subject to the provisions of
paragraph (c) of this Section 6:
The assets belonging to each particular Series shall be charged solely
with the liabilities of the Trust in respect to that Series, the expenses,
costs, charges and reserves attributable to that Series, and any general
liabilities of the Trust that are not readily identifiable as belonging to any
particular Series, but which are allocated and charged by the Trustees to and
among any one or more of the Series established and designated from time to time
in a manner and on such basis as the Trustees in their sole discretion deem fair
and equitable. The liabilities, expenses, costs, charges and reserves so charged
to a Series are herein referred to as "liabilities belonging to" that Series.
Each allocation of liabilities, expenses, costs, charges and reserves by the
Trustees shall be conclusive and binding upon the Shareholders of all Series for
all purposes.
(c) APPORTIONMENT OF ASSETS ETC. IN CASE OF MULTI-CLASS SERIES. In the
case of any Multi-Class Series, to the extent necessary or appropriate to give
effect to the relative rights and preferences of any Classes of Shares of such
Series, (i) any assets, income, earnings, profits, proceeds, liabilities,
expenses, charges, costs and reserves belonging or attributable to that Series
may be allocated or attributed to a particular Class of Shares of that Series or
apportioned among two or more Classes of Shares of that Series; and (ii) Shares
of any Class of such Series may have priority or preference over shares of other
Classes of such Series with respect to dividends or distributions upon
termination of the Trust or of such Series or Class or otherwise, provided that
no Share shall have any priority or preference over any other Shares of the same
Class and that all dividends and distributions to Shareholders of a particular
Class shall be made ratably among all Shareholders of such Class according to
the number of Shares of such Class held of record by such Shareholders on the
record date for any dividend or distribution or on the date of termination, as
the case may be.
(d) DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES.
Notwithstanding any other provisions of this Declaration, including, without
limitation, Article VI, no dividend or distribution (including, without
limitation, any distribution paid upon termination of the Trust or of any Series
or Class) with respect to, nor any redemption or repurchase of, the Shares of
any Series or Class shall be effected by the Trust other than from the assets
belonging to such Series or attributable to such Class, nor shall any
Shareholder of any particular Series or Class otherwise have any right or claim
against the assets belonging to any other Series or attributable to any other
Class except to the extent that such Shareholder has such a right or claim
hereunder as a Shareholder of such other Series or Class.
(e) VOTING. Notwithstanding any of the other provisions of this
Declaration, including, without limitation, Section 1 of Article V, the
Shareholders of any particular Series or Class shall not be entitled to vote on
any matters as to which such Series or Class is not affected. On any matter
submitted to a vote of Shareholders, all Shares of the Trust then entitled to
vote shall, except as otherwise provided in the By-Laws, be voted in the
aggregate as a single Class without regard to Series or Class of Shares, except
that (i) when required by the 1940 Act or when the Trustees shall have
determined that the matter affects one or more Series or Classes of Shares
materially differently, Shares shall be voted by individual Series or Class; and
(ii) when the matter affects only the interests of one or more Series or
Classes, only Shareholders of such Series or Classes shall be entitled to vote
thereon. There shall be no cumulative voting in the election of Trustees.
(f) EQUALITY. Except to the extent necessary or appropriate to give
effect to the relative rights and preferences of any Classes of Shares of a
Multi-Class Series, all the Shares of each particular Series shall represent an
equal proportionate interest in the assets belonging to that Series (subject to
the liabilities belonging to that Series), and each Share of any particular
Series shall be equal to each other Share of that Series. All the Shares of each
particular Class of Shares within a Multi-Class Series shall represent an equal
proportionate interest in the assets belonging to such Series that are
attributable to such Class (subject to the liabilities attributable to such
Class), and each Share of any particular Class within a Multi-Class Series shall
be equal to each other Share of such Class.
(g) FRACTIONS. Any fractional Share of a Series or Class shall carry
proportionately all the rights and obligations of a whole Share of that Series
or Class, including rights with respect to voting, receipt of dividends and
distributions, redemption of Shares and termination of the Trust.
(h) EXCHANGE PRIVILEGE. The Trustees shall have the authority to
provide that the holders of Shares of any Series or Class shall have the right
to exchange said Shares for Shares of one or more other Series or Classes of
Shares in this Trust or in any other trust in accordance with such requirements
and procedures as may be established by the Trustees.
(i) COMBINATION OF SERIES OR CLASSES. The Trustees shall have the
authority, without the approval of the Shareholders of any Series or Class
unless otherwise required by applicable law, to combine the assets and
liabilities belonging to any two or more Series or attributable to any Class
into assets and liabilities belonging to a single Series or attributable to a
single Class.
(j) ELIMINATION OF SERIES OR CLASS. At any time that there are no
Shares outstanding of any particular Series previously established and
designated, the Trustees may abolish that Series and rescind the establishment
and designation thereof, such action to be effected in the manner provided
above. At any time that there are no Shares outstanding of any particular Class
of Shares, the Trustees may abolish that Class and rescind the establishment and
designation thereof, such action to be effected in the manner provided above.
SECTION 7. INDEMNIFICATION OF SHAREHOLDERS. In case any Shareholder or
former Shareholder shall be held to be personally liable solely by reason of his
or her being or having been a Shareholder of the Trust or of a particular Series
or Class and not because of his or her acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his or her heirs, executors,
administrators or other legal representatives or, in the case of a corporation
or other entity, its corporate or other general successor) shall be entitled out
of the assets of the Series (or attributable to the Class) of which he or she is
a Shareholder or former Shareholder to be held harmless from and indemnified
against all loss and expense arising from such liability.
SECTION 8. NO PREEMPTIVE RIGHTS. Shareholders shall have no
preemptive or other right to subscribe to any additional Shares or other
securities issued by the Trust.
SECTION 9. DERIVATIVE CLAIMS. No Shareholder shall have the right to
bring or maintain any court action, proceeding or claim on behalf of the Trust
or any Series without first making demand on the Trustees requesting the
Trustees to bring or maintain such action, proceeding or claim. Such demand
shall be excused only when the plaintiff makes a specific showing that
irreparable injury to the Trust or Series would otherwise result. Such demand
shall be mailed to the Secretary of the Trust at the Trust's principal office
and shall set forth in reasonable detail the nature of the proposed court
action, proceeding or claim and the essential facts relied upon by the
Shareholder to support the allegations made in the demand. The Trustees shall
consider such demand within 45 days of its receipt by the Trust. In their sole
discretion, the Trustees may submit the matter to a vote of Shareholders of the
Trust or Series, as appropriate. Any decision by the Trustees to bring, maintain
or settle (or not to bring, maintain or settle) such court action, proceeding or
claim, or to submit the matter to a vote of Shareholders, shall be made by the
Trustees in their business judgment and shall be binding upon the Shareholders.
Any decision by the Trustees to bring or maintain a court action, proceeding or
suit on behalf of the Trust or a Series shall be subject to the right of the
Shareholders under Article V, Section 1 hereof to vote on whether or not such
court action, proceeding or suit should or should not be brought or maintained.
ARTICLE IV
The Trustees
SECTION 1. ELECTION AND TENURE. The trustees on the date of this
Restatement of Amended Agreement and Declaration of Trust shall be the
individual(s) who shall affix their signatures hereto. On a date fixed by the
Trustees, the Shareholders shall elect not less than three Trustees. A Trustee
shall not be required to be a Shareholder of the Trust. The Trustees may fix or
change the number of Trustees, fill vacancies in the Trustees, including
vacancies arising from an increase in the number of Trustees, or remove Trustees
with or without cause.
Each Trustee shall serve during the continued lifetime of the Trust
until he or she dies, resigns, is removed, reaches such mandatory retirement age
as may be determined by the Trustees from time to time, or, if sooner, until the
next meeting of Shareholders called for the purpose of electing Trustees and
until the election and qualification of his or her successor. Any Trustee may
resign at any time by written instrument signed by him or her and delivered to
any officer of the Trust or to a meeting of the Trustees. Such resignation shall
be effective upon receipt unless specified to be effective at some other time.
Except to the extent expressly provided in a written agreement with the Trust,
no Trustee resigning and no Trustee removed shall have any right to any
compensation for any period following his or her resignation or removal, or any
right to damages on account of such removal. The Shareholders may fix the number
of Trustees and elect Trustees at any meeting of Shareholders called by the
Trustees for that purpose and to the extent required by applicable law,
including paragraphs (a) and (b) of Section 16 of the 1940 Act.
SECTION 2. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE. The death,
declination, resignation, retirement, removal or incapacity of the Trustees, or
any of them, shall not operate to annul the Trust or to revoke any existing
agency created pursuant to the terms of this Declaration of Trust.
SECTION 3. POWERS. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Trustees, and they
shall have all powers necessary or convenient to carry out that responsibility,
including the power to engage in securities transactions of all kinds on behalf
of the Trust. Without limiting the foregoing, the Trustees may adopt By-Laws not
inconsistent with this Declaration of Trust providing for the regulation and
management of the affairs of the Trust and may amend and repeal them to the
extent that such By-Laws do not reserve that right to the Shareholders; they may
elect and remove such officers and appoint and terminate such agents as they
consider appropriate; they may appoint from their own number and terminate one
or more committees consisting of two or more Trustees, which may exercise the
powers and authority of the Trustees to the extent that the Trustees determine;
they may employ one or more custodians of the assets of the Trust and may
authorize such custodians to employ subcustodians and to deposit all or any part
of such assets in a system or systems for the central handling of securities or
with a Federal Reserve Bank, retain a transfer agent or a shareholder servicing
agent, or both, provide for the distribution of Shares by the Trust, through one
or more principal underwriters or otherwise, set record dates for the
determination of Shareholders with respect to various matters, and in general
delegate such authority as they consider desirable to any officer of the Trust,
to any committee of the Trustees and to any agent or employee of the Trust or to
any investment adviser, manager, custodian, underwriter or other agent or
independent contractor.
Without limiting the foregoing, the Trustees shall have power and
authority:
(a) To invest and reinvest cash, and to hold cash uninvested;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, lease,
write options with respect to or otherwise deal in any property rights relating
to any or all of the assets of the Trust;
(c) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and deliver
proxies or powers of attorney to such person or persons as the Trustees shall
deem proper, granting to such person or persons such power and discretion with
relation to securities or property as the Trustees shall deem proper;
(d) To exercise powers and rights of subscription or otherwise that in
any manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form, or in its own
name or in the name of a custodian or subcustodian or a nominee or nominees or
otherwise;
(f) To establish separate and distinct Series with separately defined
investment objectives and policies and distinct investment purposes in
accordance with the provisions of Article III and to establish Classes of such
Series having relative rights, powers and duties as the Trustees may provide
consistent with applicable laws;
(g) To allocate assets, liabilities, and expenses of the Trust to a
particular Series or Class, as appropriate, or to apportion the same between or
among two or more Series or Classes, as appropriate, provided that any
liabilities or expenses incurred by a particular Series or Class shall be
payable solely out of the assets belonging to that Series as provided for in
Article III.
(h) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security that is
held in the Trust; to consent to any contract, lease, mortgage, purchase or sale
of property by such corporation or issuer; and to pay calls or subscriptions
with respect to any security held in the Trust;
(i) To join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit any
security with, or transfer any security to, any such committee, depositary or
trustee, and to delegate to them such power and authority with relation to any
security (whether or not so deposited or transferred) as the Trustees shall deem
proper, and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Trustees shall deem
proper;
(j) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust or any matter in controversy, including, but not limited to,
claims for taxes;
(k) To enter into joint ventures, general or limited partnerships and
any other combinations or associations;
(l) To make distributions of income and of capital gains to
Shareholders as provided herein;
(m) To borrow money or other property, and to pledge, mortgage or
hypothecate the assets of the Trust, subject to the applicable requirements of
the 1940 Act;
(n) To endorse or guarantee the payment of any notes or other
obligations of any person; and to make contracts of guaranty or suretyship, or
otherwise assume liability for payment of such notes or other obligations;
(o) To purchase and pay for entirely out of Trust property such
insurance as they may deem necessary or appropriate for the conduct of the
business of the Trust, including, without limitation, insurance policies
insuring the assets of the Trust and payment of distributions and principal on
its portfolio investments, and insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, investment advisers, principal
underwriters or independent contractors of the Trust individually against all
claims and liabilities of every nature arising by reason of holding, being or
having held any such office or position, or by reason of any action alleged to
have been taken or omitted by any such person as Trustee, officer, employee,
agent, investment adviser, principal underwriter or independent contractor,
including any action taken or omitted that may be determined to constitute
negligence, whether or not the Trust would have the power to indemnify such
person against liability;
(p) To pay pensions as deemed appropriate by the Trustees and to adopt,
establish and carry out deferred compensation, pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans, trusts and provisions, including the purchasing of life insurance
and annuity contracts as a means of providing such retirement and other
benefits, for any or all of the Trustees, officers, employees and agents of the
Trust;
(q) To operate and carry on the business of an investment company and
to exercise all the powers necessary and appropriate to the conduct of such
operations;
(r) To interpret the investment policies, practices or limitations of
any Series;
(s) In general to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary, suitable
or proper for the accomplishment of any purpose or the attainment of any object
or the furtherance of any power heretofore set forth, either alone or in
association with others, and to do every other act or thing incidental or
appurtenant to or growing out of or connected with the aforesaid business or
purposes, objects or powers; and
(t) Notwithstanding any other provision hereof, to invest all of the
assets of any Series in a single open-end investment company, including
investment by means of transfer of such assets in exchange for an interest or
interests in such investment company or by any other method approved by the
Trustees.
The foregoing clauses shall be construed both as objects and powers,
and the foregoing enumeration of specific powers shall not be held to limit or
restrict in any manner the general powers of the Trustees. Any action by one or
more of the Trustees in their capacity as such hereunder shall be deemed an
action on behalf of the Trust or the applicable Series and not an action in an
individual capacity.
Except as otherwise provided herein or in the 1940 Act, the Trustees
shall not in any way be bound or limited by any present or future law or custom
in regard to investments by Trustees. The Trustees shall not be required to
obtain any court order to deal with any assets of the Trust or take any other
action hereunder.
SECTION 4. PAYMENT OF EXPENSES BY THE TRUST. The Trustees are
authorized to pay or cause to be paid out of the principal or income of the
Trust, or partly out of principal and partly out of income, as they deem fair,
all expenses, fees, charges, taxes and liabilities incurred or arising in
connection with the Trust, or in connection with the management thereof,
including, but not limited to, the Trustees' compensation and such expenses and
charges for the services of the Trust's officers, employees, administrators,
investment advisers or managers, principal underwriter, auditor, counsel,
custodian, transfer agent, shareholder servicing agent, and such other agents or
independent contractors, and such other expenses and charges, as the Trustees
may deem necessary or proper to incur.
SECTION 5. PAYMENT OF EXPENSES BY SHAREHOLDERS. The Trustees shall have
the power, as frequently as they may determine, to cause each Shareholder, or
each Shareholder of any particular Series or Class, to pay directly, in advance
or arrears, for charges of the Trust's custodian or transfer, shareholder
servicing or similar agent, an amount fixed from time to time by the Trustees,
by setting off such charges due from such Shareholder from declared but unpaid
dividends owed such Shareholder and/or by reducing the number of Shares in the
account of such Shareholder by that number of full and/or fractional Shares that
represents the outstanding amount of such charges due from such Shareholder.
SECTION 6. OWNERSHIP OF ASSETS OF THE TRUST. Title to all of the assets
of the Trust shall at all times be considered as vested in the Trustees.
SECTION 7. ADVISORY, MANAGEMENT AND DISTRIBUTION CONTRACTS. The
Trustees may, at any time and from time to time, contract for exclusive or
nonexclusive advisory and/or management services for the Trust or for any Series
or Class with any corporation, trust, partnership, limited liability company,
association or other organization (the "Manager"); and any such contract may
contain such other terms as the Trustees may determine, including, without
limitation, authority for a Manager to determine from time to time without prior
consultation with the Trustees what investments shall be purchased, held, sold
or exchanged and what portion, if any, of the assets of the Trust shall be held
uninvested and to make changes in the Trust's investments. The Trustees may
also, at any time and from time to time, contract with the Manager or any other
corporation, trust, association or other organization, appointing it exclusive
or nonexclusive distributor or principal underwriter for the Shares; and any
such contract may contain such other terms as the Trustees may determine.
The fact that:
(i) any of the Shareholders, Trustees or officers of the
Trust is a shareholder, director, officer, partner, trustee, employee,
manager, adviser, principal underwriter, distributor or affiliate or
agent of or for any corporation, trust, association or other
organization, or of or for any parent or affiliate of any organization,
with which an advisory or management contract, or principal
underwriter's or distributor's contract or transfer, shareholder
servicing or other agency contract may have been or may hereafter be
made, or that any such organization, or any parent or affiliate
thereof, is a Shareholder or has an interest in the Trust, or that
(ii) any corporation, trust, association or other organization
with which an advisory or management contract or principal
underwriter's or distributor's contract, or transfer, shareholder
servicing or other agency contract may have been or may hereafter be
made also has an advisory or management contract, or principal
underwriter's or distributor's contract or transfer, shareholder
servicing or other agency contract with one or more other corporations,
trusts, associations or other organizations, or has other business or
interests
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same or create any liability or accountability to the Trust or its Shareholders.
ARTICLE V
Shareholders' Voting Powers and Meetings
SECTION 1. VOTING POWERS. The Shareholders shall have power to vote
only (a) for the election of Trustees as provided in Article IV, Section 1, (b)
with respect to any amendment of this Declaration of Trust to the extent and as
provided in Article VIII, Section 11, (c) to the same extent as the stockholders
of a Massachusetts business corporation as to whether or not a court action,
proceeding or claim should or should not be brought or maintained derivatively
or as a class action on behalf of the Trust or the Shareholders, (d) with
respect to the termination, merger, consolidation, reorganization or sale of
assets of the Trust or any Series or Class to the extent and as provided in
Article VIII, (e) to remove Trustees from office to the extent and as provided
in Article V, Section 7 and (f) with respect to such additional matters relating
to the Trust as may be required by this Declaration of Trust, the By-Laws or any
registration of the Trust with the Commission (or any successor agency) or any
state, or as the Trustees may consider necessary or desirable. A Shareholder of
each Series or Class shall be entitled to one vote for each dollar of net asset
value (number of shares owned times net asset value per share) of such Series or
Class thereof, on any matter on which such Shareholder is entitled to vote, and
each fractional dollar amount shall be entitled to a proportionate fractional
vote. There shall be no cumulative voting in the election of Trustees. Shares
may be voted in person or by proxy. A proxy with respect to Shares held in the
name of two or more persons shall be valid if executed by any one of them unless
at or prior to exercise of the proxy the Trust receives a specific written
notice to the contrary from any one of them. A proxy purporting to be executed
by or on behalf of a Shareholder shall be deemed valid unless challenged at or
prior to its exercise and the burden of proving invalidity shall rest on the
challenger. At any time when no Shares of a Series or Class are outstanding the
Trustees may exercise all rights of Shareholders of that Series or Class with
respect to matters affecting that Series or Class and may with respect to that
Series or Class take any action required by law, this Declaration of Trust or
the By-Laws to be taken by the Shareholders thereof.
SECTION 2. VOTING POWER AND MEETINGS. Meetings of the Shareholders may
be called by the Trustees for the purpose of electing Trustees as provided in
Article IV, Section 1 and for such other purposes as may be prescribed by law,
by this Declaration of Trust or by the By-Laws. Meetings of the Shareholders may
also be called by the Trustees from time to time for the purpose of taking
action upon any other matter deemed by the Trustees to be necessary or
desirable. A meeting of Shareholders may be held at any place designated by the
Trustees. Notice of any meeting of Shareholders, stating the time and place of
the meeting, shall be given or caused to be given by the Trustees to each
Shareholder by mailing such notice, postage prepaid, at least seven days before
such meeting, at the Shareholder's address as it appears on the records of the
Trust, or by facsimile or other form of electronic transmission, at least seven
days before such meeting, to the telephone or facsimile number or e-mail or
other electronic address most recently furnished to the Trust (or its agent) by
the Shareholder. Whenever notice of a meeting is required to be given to a
Shareholder under this Declaration of Trust or the By-Laws, a written waiver
thereof, executed before or after the meeting by such Shareholder or his
attorney thereunto authorized and filed with the records of the meeting, shall
be deemed equivalent to such notice.
SECTION 3. QUORUM AND REQUIRED VOTE. Except when a larger quorum is
required by law, by the By-Laws or by this Declaration of Trust, 40% of the
Shares entitled to vote shall constitute a quorum at a Shareholders' meeting.
When any one or more Series or Classes is to vote as a single Class separate
from any other Shares which are to vote on the same matters as a separate Class
or Classes, 40% of the Shares of each such Class entitled to vote shall
constitute a quorum at a Shareholders' meeting of that Class. Any meeting of
Shareholders may be adjourned from time to time by a majority of the votes
properly cast upon the question, whether or not a quorum is present, and the
meeting may be held as adjourned within a reasonable time after the date set for
the original meeting without further notice. When a quorum is present at any
meeting, a majority of the Shares voted shall decide any questions and a
plurality shall elect a Trustee, except when a larger vote is required by any
provision of this Declaration of Trust or the By-Laws or by law. If any question
on which the Shareholders are entitled to vote would adversely affect the rights
of any Series or Class of Shares, the vote of a majority (or such larger vote as
is required as aforesaid) of the Shares of such Series or Class that are
entitled to vote, voting separately, shall also be required to decide such
question.
SECTION 4. ACTION BY WRITTEN CONSENT. Any action taken by Shareholders
may be taken without a meeting if Shareholders holding a majority of the Shares
entitled to vote on the matter (or such larger proportion thereof as shall be
required by any express provision of this Declaration of Trust or by the
By-Laws) and holding a majority (or such larger proportion as aforesaid) of the
Shares of any Series or Class entitled to vote separately on the matter consent
to the action in writing and such written consents are filed with the records of
the meetings of Shareholders. Such consent shall be treated for all purposes as
a vote taken at a meeting of Shareholders.
SECTION 5. RECORD DATES. For the purpose of determining the
Shareholders of any Series or Class who are entitled to vote or act at any
meeting or any adjournment thereof, the Trustees may, from time to time, fix a
time, which shall be not more than 90 days before the date of any meeting of
Shareholders, as the record date for determining the Shareholders of such Series
or Class having the right to notice of and to vote at such meeting and any
adjournment thereof, and in such case only Shareholders of record on such record
date shall have such right, notwithstanding any transfer of Shares on the books
of the Trust after the record date. For the purpose of determining the
Shareholders of any Series or Class who are entitled to receive payment of any
dividend or of any other distribution, the Trustees may from time to time fix a
date, which shall be on or before the date for the payment of such dividend or
such other payment, as the record date for determining the Shareholders of such
Series or Class having the right to receive such dividend or distribution.
Without fixing a record date, the Trustees may for voting and/or distribution
purposes close the register or transfer books for one or more Series or Classes
for all or any part of the period prior to a meeting of Shareholders or the
payment of a distribution. Nothing in this Section shall be construed as
precluding the Trustees from setting different record dates for different Series
or Classes.
SECTION 6. ADDITIONAL PROVISIONS. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters.
SECTION 7. REMOVAL OF TRUSTEES. No natural person shall serve as
Trustee after the holders of record of not less than two-thirds of the
outstanding Shares have declared that such Trustee be removed from that office
either by declaration in writing filed with the Trust's custodian or by votes
cast in person or by proxy at a meeting called for the purpose. The Trustees
shall promptly call a meeting of Shareholders for the purpose of voting upon the
question of removal of any Trustee when requested in writing so to do by the
record holders of not less than 10 per centum of the outstanding Shares.
Unless otherwise provided under applicable law, whenever ten or more
Shareholders of record who have been such for at least six months preceding the
date of application, and who hold in the aggregate Shares having a net asset
value of at least 1 per centum of the outstanding Shares, shall apply to the
Trustees in writing, stating that they wish to communicate with other
Shareholders with a view to obtaining signatures to a request for a meeting
pursuant to this Section and accompanied by a form of communication and request
that they wish to transmit, the Trustees shall within five (5) business days
after receipt of such application either (a) afford to such applicants access to
a list of the names and addresses of all Shareholders as recorded on the books
of the Trust; or (b) inform such applicants as to the approximate number of
Shareholders of record, and the approximate cost of transmitting to them the
proposed communication and form of request. If the Trustees elect to follow the
course specified in clause (b), unless otherwise provided under applicable law,
the Trustees, upon the written request of such applicants, accompanied by a
tender of the material to be transmitted and of the reasonable expenses of
transmittal, shall, with reasonable promptness, transmit such material to all
Shareholders of record at their addresses as recorded on the books of the Trust
(or at the telephone or facsimile number or e-mail or other electronic address
most recently furnished to the Trust (or its agent) by the Shareholder), unless
within five business days after such tender the Trustees shall transmit to such
applicants and file with the Commission, together with a copy of the material
proposed to be transmitted, a written statement signed by at least a majority of
the Trustees to the effect that, in their opinion, either such material contains
untrue statements of fact or omits to state facts necessary to make the
statements contained therein not misleading, or would be in violation of
applicable law, and specifying the basis of such opinion. If the Commission
shall enter an order refusing to sustain any of the objections specified in the
written statement so filed, or if, after the entry of an order sustaining one or
more of such objections, the Commission shall find, after notice and opportunity
for hearing, that all objections so sustained have been met, and shall enter an
order so declaring, the Trustees shall, unless otherwise provided under
applicable law, transmit copies of such material to all Shareholders with
reasonable promptness after the entry of such order and the renewal of such
tender.
ARTICLE VI
Net Income, Distributions and Redemptions and Repurchases
SECTION 1. DISTRIBUTIONS OF NET INCOME. The Trustees shall each year, or more
frequently if they so determine in their sole discretion, distribute to the
Shareholders of each Series, in Shares of that Series, cash or otherwise, an
amount approximately equal to the net income attributable to the assets
belonging to such Series and may, from time to time, distribute to the
Shareholders of each Series, in Shares of that Series, cash or otherwise, such
additional amounts, but only from the assets belonging to such Series, as they
may authorize. Except as otherwise permitted by paragraph (c) of Section 6 of
Article III in the case of Multi-Class Series, all dividends and distributions
on Shares of a particular Series shall be distributed pro rata to the holders of
that Series in proportion to the number of Shares of that Series held by such
holders and recorded on the books of the Trust at the date and time of record
established for the payment of such dividend or distributions.
The manner of determining net income, income, asset values, capital
gains, expenses, liabilities and reserves of any Series or Class may, from time
to time, be altered as necessary or desirable in the judgment of the Trustees to
conform such manner of determination to any other method prescribed or permitted
by applicable law. Net income shall be determined by the Trustees or by such
person as they may authorize at the times and in the manner provided in the
By-Laws. Determinations of net income of any Series or Class and determinations
of income, asset value, capital gains, expenses and liabilities made by the
Trustees, or by such person as they may authorize, in good faith, shall be
binding on all parties concerned. The foregoing sentence shall not be construed
to protect any Trustee, officer or agent of the Trust against any liability to
the Trust or its security holders to which he or she would otherwise be subject
by reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his office.
If, for any reason, the net income of any Series or Class determined at
any time is a negative amount, the pro rata share of such negative amount
allocable to each Shareholder of such Series or Class shall constitute a
liability of such Shareholder to that Series or Class, which shall be paid out
of such Shareholder's account at such times and in such manner as the Trustees
may from time to time determine (a) out of the accrued dividend account of such
Shareholder, (b) by reducing the number of Shares of that Series or Class in the
account of such Shareholder or (c) otherwise.
SECTION 2. REDEMPTIONS AND REPURCHASES. The Trust shall purchase such
Shares as are offered by any Shareholder for redemption, upon the presentation
of a proper instrument of transfer together with a request directed to the Trust
or a person designated by the Trust that the Trust purchase such Shares or in
accordance with such other procedures for redemption as the Trustees may from
time to time authorize; and the Trust will pay therefor the net asset value
thereof next determined. Payment for said Shares shall be made by the Trust to
the Shareholder within seven days after the date on which the request is made.
The obligation set forth in this Section 2 is subject to the provision that in
the event that any time the New York Stock Exchange is closed for other than
weekends or holidays, or if permitted by the rules of the Commission during
periods when trading on the New York Stock Exchange is restricted or during any
emergency that makes it impracticable for the Trust to dispose of the
investments of the applicable Series or to determine fairly the value of the net
assets belonging to such Series or attributable to any Class thereof or during
any other period permitted by order of the Commission for the protection of
investors, such obligations may be suspended or postponed by the Trustees. The
Trust may also purchase or repurchase Shares at a price not exceeding the net
asset value of such Shares in effect when the purchase or repurchase or any
contract to purchase or repurchase is made.
The redemption price may, in any case or cases, be paid wholly or
partly in kind if the Trustees determine that such payment is advisable in the
interest of the remaining Shareholders of the Series the Shares of which are
being redeemed. In making any such payment wholly or partly in kind, the Trust
shall, so far as may be practicable, deliver assets that approximate the
diversification of all of the assets belonging at the time to the Series the
Shares of which are being redeemed. Subject to the foregoing, the fair value,
selection and quantity of securities or other property so paid or delivered as
all or part of the redemption price may be determined by or under authority of
the Trustees. In no case shall the Trust be liable for any delay of any
corporation or other person in transferring securities selected for delivery as
all or part of any payment in kind.
SECTION 3. REDEMPTIONS AT THE OPTION OF THE TRUST. The Trust shall have
the right at its option and at any time to redeem Shares of any Shareholder at
the net asset value thereof as described in Section 1 of this Article VI (a) if,
at such time, such Shareholder owns Shares of any Series or Class having an
aggregate net asset value of less than an amount determined from time to time by
the Trustees; (b) to the extent that such Shareholder owns Shares equal to or in
excess of a percentage determined from time to time by the Trustees of the
outstanding Shares of the Trust or of any Series or Class; (c) if the Trustees
determine that such Shareholder is engaging in conduct that is harmful to the
Trust or any Series or Class thereof; or (d) if the Trustees otherwise determine
such redemption to be necessary or appropriate.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
SECTION 1 COMPENSATION. The Trustees as such shall be entitled to
reasonable compensation from the Trust; they may fix the amount of their
compensation. Nothing herein shall in any way prevent the employment of any
Trustee for advisory, management, legal, accounting, investment banking or other
services and payment for the same by the Trust.
SECTION 2. LIMITATION OF LIABILITY. The Trustees shall not be
responsible or liable in any event for any neglect or wrong-doing of any
officer, agent, employee, Manager or principal underwriter of the Trust, nor
shall any Trustee be responsible for the act or omission of any other Trustee,
but nothing herein contained shall protect any Trustee against any liability to
which he or she would otherwise be subject by reason of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of his or her office.
Every note, bond, contract, instrument, certificate or undertaking and
every other act or thing whatsoever issued, executed or done by or on behalf of
the Trust or the Trustees or any of them in connection with the Trust, shall be
conclusively deemed to have been issued, executed or done only in or with
respect to their or his or her capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
ARTICLE VIII
Miscellaneous
SECTION 1. TRUST NOT A PARTNERSHIP, ETC. It is hereby expressly
declared that a trust is created hereby and not a partnership, joint stock
association, corporation, bailment, or any form of a legal relationship other
than a trust. No Trustee hereunder shall have any power to personally bind
either the Trust's officers or any Shareholder.
SECTION 2. TRUSTEES, SHAREHOLDERS, ETC. NOT PERSONALLY LIABLE; NOTICE.
All persons extending credit to, contracting with or having any claim against
the Trust or any Series or Class shall look only to the assets of the Trust, or,
to the extent that the liability of the Trust may have been expressly limited by
contract to the assets of a particular Series or attributable to a particular
Class, only to the assets belonging to the relevant Series or attributable to
the relevant Class, for payment under such credit, contract or claim; and
neither the Shareholders nor the Trustees, nor any of the Trust's officers,
employees or agents, whether past, present or future, shall be personally liable
therefor. Nothing in this Declaration of Trust shall protect any Trustee against
any liability to which such Trustee would otherwise be subject by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the office of Trustee.
Every note, bond, contract, instrument, certificate or undertaking made or
issued on behalf of the Trust by the Trustees, by any officer or officers or
otherwise shall give notice that this Declaration of Trust is on file with the
Secretary of The Commonwealth of Massachusetts and shall recite that the same
was executed or made by or on behalf of the Trust or by them as Trustee or
Trustees or as officer or officers or otherwise and not individually and that
the obligations of such instrument are not binding upon any of them or the
Shareholders individually, but are binding only upon the assets and property of
the Trust or upon the assets belonging to the Series or attributable to the
Class for the benefit of which the Trustees have caused the note, bond,
contract, instrument, certificate or undertaking to be made or issued, and may
contain such further recital as he or she or they may deem appropriate, but the
omission of any such recital shall not operate to bind any Trustee or Trustees
or officer or officers or Shareholders or any other person individually.
SECTION 3. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR
SURETY. The exercise by the Trustees of their powers and discretions hereunder
shall be binding upon everyone interested. A Trustee shall be liable for his or
her own willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of the office of Trustee, and for nothing
else, and shall not be liable for errors of judgment or mistakes of fact or law.
The Trustees may take advice of counsel or other experts with respect to the
meaning and operation of this Declaration of Trust and shall be under no
liability for any act or omission in accordance with such advice or for failing
to follow such advice. The Trustees shall not be required to give any bond as
such, nor any surety if a bond is required.
SECTION 4. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
SECTION 5. DURATION OF TRUST. The Trust shall continue without
limitation of time, but subject to the provisions of this Article VIII.
SECTION 6. TERMINATION OF TRUST, A SERIES OR A CLASS. (a) Subject to
applicable Federal and state law, the Trust or any Series or Class thereof may
be terminated (i) by Majority Shareholder Vote of the Trust, each Series
affected, or each Class affected, as the case may be; or (ii) without the vote
or consent of Shareholders by a majority of the Trustees either at a meeting or
by written consent. The Trustees shall provide written notice to the affected
Shareholders of a termination effected under clause (ii) above. Upon termination
of the Trust or the Series or Class,
(i) the Trust or the Series or Class shall carry on no business
except for the purpose of winding up its affairs;
(ii) the Trustees shall proceed to wind up the affairs of the Trust
or the Series or Class, and all of the powers of the Trustees
under this Declaration of Trust shall continue until the
affairs of the Trust shall have been wound up, including the
power to fulfill or discharge the contracts of the Trust or
the Series or Class thereof; collect its assets; sell, convey,
assign, exchange, transfer, or otherwise dispose of all or any
part of the remaining Trust property or Trust property
allocated or belonging to such Series or Class to one or more
persons at public or private sale for consideration that may
consist in whole or in part of cash, securities, or other
property of any kind; discharge or pay its liabilities; and do
all other acts appropriate to liquidate its business; provided
that any sale, conveyance, assignment, exchange, transfer, or
other disposition of all or substantially all the Trust
property or Trust property allocated or belonging to such
Series or Class (other than as provided in (iii) below) shall
require Shareholder approval in accordance with Section 7
below; and
(iii) after paying or adequately providing the payment of all
liabilities, and upon receipt of such releases, indemnities,
and refunding agreements as they deem necessary for their
protection, the Trustees may distribute the remaining Trust
property or the remaining property of the terminated Series or
Class according to their prospective rights; and
(b) after termination of the Trust or the Series or Class and
distribution to the Shareholders as herein provided, a
majority of the Trustees shall execute and lodge among the
records of the Trust and file with the Secretary of The
Commonwealth of Massachusetts, as appropriate, an instrument
in writing setting forth the fact of such termination, and the
Trustees shall thereupon be discharged from all further
liabilities and duties with respect to the Trust or the
terminated Series or Class, and the rights and interests of
all Shareholders of the Trust or the terminated Series or
Class shall thereupon cease.
SECTION 7. MERGER, CONSOLIDATION, AND SALES OF ASSETS. Subject to
applicable Federal and state law and except as otherwise provided in Section 8
below, the Trust or any Series thereof may merge or consolidate with any other
corporation, association, trust, or other organization or may sell, lease, or
exchange all or substantially all of the Trust property or Trust property
allocated or belonging to such Series, including its good will, upon such terms
and conditions and for such consideration when and as authorized at any meeting
of Shareholders called for such purpose by a Majority Shareholder Vote of the
Trust or affected Series, as the case may be. Such transactions may be effected
through share-for-share exchanges, transfers or sale of assets, shareholder
in-kind redemptions and purchases, exchange offers, or any other method approved
by the Trustees.
SECTION 8. INCORPORATION; REORGANIZATION. Subject to applicable Federal
and state law, the Trustees may without the vote or consent of Shareholders
cause to be organized or assist in organizing a corporation or corporations
under the laws of any jurisdiction or any other trust, partnership, limited
liability company, association, or other organization to take over all of the
Trust property or the Trust property allocated or belonging to such Series to
carry on any business in which the Trust shall directly or indirectly have any
interest, and to sell, convey and transfer the Trust property or the Trust
property allocated or belonging to such Series to any such corporation, trust,
limited liability company, partnership, association, or organization in exchange
for the shares or securities of, and enter into any contracts with any such
corporation, trust, partnership, limited liability company, association, or
organization, or any corporation, partnership, limited liability trust company,
trust, association, or organization in which the Trust or such Series holds or
is about to acquire shares or any other interest. Subject to applicable Federal
and state law, the Trustees may also cause a merger or consolidation between the
Trust or any successor thereto and any such corporation, trust, partnership,
limited liability company, association, or other organization. Nothing contained
herein shall be construed as requiring approval of Shareholders for the Trustee
to organize or assist in organizing one or more corporations, trusts,
partnerships, limited liability companies, associations, or other organizations
and selling, conveying, or transferring the Trust property or a portion of the
Trust property to such organizations or entities; provided, however, that the
Trustees shall provide written notice to the affected Shareholders of any
transaction whereby, pursuant to this Section 8, the Trust or any Series thereof
sells, conveys, or transfers substantially all of its assets to another entity
or merges or consolidates with another entity. Such transactions may be effected
through share-for-share exchanges, transfers or sale of assets, shareholder
in-kind redemptions and purchases, exchange offers, or any other method approved
by the Trustees.
SECTION 9. FILING OF COPIES, REFERENCE, HEADINGS. The original or a
copy of this instrument and of each amendment hereto shall be kept at the office
of the Trust where it may be inspected by any Shareholder. A copy of this
instrument and of each amendment hereto shall be filed by the Trust with the
Secretary of The Commonwealth of Massachusetts and with any other governmental
office where such filing may from time to time be required. Anyone dealing with
the Trust may rely on a certificate by an officer of the Trust as to whether or
not any such amendments have been made and as to any matters in connection with
the Trust hereunder; and, with the same effect as if it were the original, may
rely on a copy certified by an officer of the Trust to be a copy of this
instrument or of any such amendments. In this instrument and in any such
amendment, references to this instrument, and all expressions like "herein,"
"hereof" and "hereunder," shall be deemed to refer to this instrument as amended
or affected by any such amendments. Headings are placed herein for convenience
of reference only and shall not be taken as a part hereof or to control or
affect the meaning, construction or effect of this instrument. This instrument
may be executed in any number of counterparts each of which shall be deemed an
original.
SECTION 10. APPLICABLE LAW. This Declaration of Trust is made in The
Commonwealth of Massachusetts, and it is created under and is to be governed by
and construed and administered according to the laws of said Commonwealth. The
Trust shall be of the type commonly called a Massachusetts business trust, and,
without limiting the provisions hereof, the Trust may exercise all powers that
are ordinarily exercised by such a trust, and the absence of a specific
reference herein to any such power, privilege or action shall not imply that the
Trust may not exercise such power or privilege or take such actions.
SECTION 11. AMENDMENTS. Except as specifically provided herein, the
Trustees may without shareholder vote, amend or otherwise supplement this
Declaration of Trust by making an amendment, a Declaration of Trust supplemental
hereto or an amended and restated Declaration of Trust. Shareholders shall have
the right to vote (a) on any amendment that would affect their right to vote
granted in Section 1 of Article V; (b) on any amendment to this Section 11; (c)
on any amendment as may be required by law or by the Trust's registration
statement files with the Commission; and (d) on any amendment submitted to them
by the Trustees. Any amendment required or permitted to be submitted to
Shareholders that, as the Trustees determine, shall affect the Shareholders of
one or more Series or Classes shall be authorized by vote of the Shareholders of
each Series or Class affected and no vote of shareholders of a Series or Class
not affected shall be required. Notwithstanding anything else herein, any
amendment to Article VII shall not limit the rights to limited liability
provided therein with respect to action or omission of the Trustees prior to
such amendment.
SECTION 12. FISCAL YEAR. The fiscal year of the Trust and/or any
Series thereof shall be established by the Trustees as set forth in the By-Laws.
SECTION 13. USE OF THE WORD "NVEST". CDC IXIS Asset Management North
America, L.P. ("CIAMNA") has consented to the use by any Series of the Trust of
the identifying word "Nvest" in the name of any Series of the Trust at some
future date. Such consent is conditioned upon the employment of CIAMNA or a
subsidiary or affiliate thereof as investment adviser of such Series. As between
the Trust and itself, the CIAMNA controls the use of the name of the Trust
insofar as such name contains the identifying word "Nvest." CIAMNA may from time
to time use the identifying word "Nvest" in other connections and for other
purposes, including, without limitation, in the names of other investment
companies, corporations, or businesses that it may manage, advise, sponsor or
own or in which they may have a financial interest. The CIAMNA may require the
Trust or any Series thereof to cease using the identifying word "Nvest" in the
name of the Trust or any Series thereof if the Trust or any Series thereof
ceases to employ CIAMNA or a subsidiary or affiliate thereof as investment
adviser.
SECTION 14. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS. (a) The
provisions of this Declaration of Trust are severable, and, if the Trustees
shall determine, with the advice of counsel, that any of such provisions is in
conflict with the 1940 Act, the regulated investment company provision of the
Internal Revenue Code or with other applicable laws and regulations, the
conflicting provision shall be deemed never to have constituted a part of this
Declaration of Trust; provided, however, that such determination shall not
affect any of the remaining provisions of this Declaration of Trust or render
invalid or improper any action taken or omitted prior to such determination.
(b) If any provision of this Declaration Trust shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdictions and shall not in any manner
affect such provisions in any other jurisdiction or any other provision of this
Declaration of Trust in any jurisdiction.
SECTION 15. ADDRESSES. The address of the Trust is ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The address of the Trustees is c/o CDC
IXIS Asset Management Services, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
IN WITNESS WHEREOF, we have hereunto set our hands for ourselves and
for our successors and assigns as of the day and year first above written.
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