JULIUS BAER INVESTMENT FUNDS AMENDED AND RESTATED MASTER TRUST AGREEMENT April 2, 2008
SUB-ITEM
77Q(1)(a)
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▇▇▇▇ Investment Funds
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▇▇▇▇ INVESTMENT FUNDS
AMENDED
AND RESTATED MASTER TRUST AGREEMENT
April
2,
2008
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▇▇▇▇ INVESTMENT FUNDS
CROSS-REFERENCE
SHEET
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(a)
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Name
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(b)
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Date
of Organization:
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April
30, 1992
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(c)
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Names
and Addresses of the Trustees:
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(d)
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Original
Signatures of All Trustees:
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See
Page 26
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(e)
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Principal
Place of Business
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(f)
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Statement
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participation or shares:
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See
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(g)
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Ability
to Merge:
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See
Section 7.2, page 25
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(h)
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Resident
Agent:
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State
Street Bank and Trust Company
Attention:
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TABLE
OF
CONTENTS
ARTICLE
I.
NAME AND
DEFINITIONS
PAGE
Section
1.1
Name6
Section
1.2
Definitions6
ARTICLE
II.
PURPOSE OF THE TRUST6
ARTICLE
III.
THE TRUSTEES7
Section
3.1
Number, Designation, Election, Term, etc.7
a)
Number
7
b)
Election and
Term
7
c)
Resignation and Retirement7
d)
Removal
7
e)
Vacancies
7
f)
Effect
of Death, Resignation, etc.7
g)
No
Accounting
8
h)
Retirement
Policy
8
i)
Trustees
Emeritus
8
Section
3.2
Powers of Trustees9
a)
Investments
9
b)
Disposition of Assets9
c)
Ownership
Powers
9
d)
Subscription
10
e)
Form
of
Holding
10
f)
Reorganization,
etc.
10
g)
Voting
Trusts,
etc.
10
h)
Compromise
10
i)
Partnerships,
etc.
10
j)
Borrowing and
Security
10
k)
Guarantees,
etc.
10
1)
Insurance
10
m)
Pensions,
etc.
11
Section
3.3
Certain Contracts11
a)
Advisory
11
b)
Administration
11
c)
Distribution12
d)
▇▇▇▇▇▇▇▇▇ and Depository12
e)
Transfer and Dividend Disbursing Agency12
f)
Shareholder
Servicing
12
g)
Accounting12
Section
3.4
Payment of Trust Expenses and Compensation
of
Trustees
13
Section
3.5
Ownership of Assets of the Trust13
ARTICLE
IV.
SHARES
13
Section
4.1
Description of Shares13
Section
4.2
Establishment and Designation of Sub-Trusts15
a)
Assets Belonging to Sub-Trusts15
b)
Liabilities Belonging to Sub-Trusts15
c)
Dividends17
d)
Liquidation17
e)
Voting
17
f)
Redemption by Shareholder17
g)
Redemption by Trust17
h)
Net Asset Value17
i)
Transfer
18
j)
Equality
18
k)
Fractions
18
1)
Conversion of Rights18
Section
4.3
Ownership of Shares18
Section
4.4
Investment in the Trust18
Section
4.5
No Pre-emptive Rights19
Section
4.6
Status of Shares and Limitation of Personal Liability19
ARTICLE
V.
SHAREHOLDERS' VOTING POWERS AND MEETINGS19
Section
5.1
Voting
Powers
19
Section
5.2
Meetings
20
Section
5.3
Record Dates20
Section
5.4
Quorum and Required Vote20
Section
5.5
Action by Written Consent20
Section
5.6
Inspection of Records21
Section
5.7
Additional Provisions21
Section
5.8
Shareholder Communications21
ARTICLE
VI.
LIMITATION OF LIABILITY: INDEMNIFICATION21
Section
6.1
Trustees, Shareholders, etc. Not
Personally
Liable;
Notice
21
Section
6.2
Trustee's Good Faith Action; Expert22
Advice;
No Bond of Surety
Section
6.3
Indemnification of Shareholders22
Section
6.4
Indemnification of Trustees, Officers, etc.23
Section
6.5
Compromise Payment23
Section
6.6
Indemnification Not Exclusive, etc.24
Section
6.7
Liability of Third Persons Dealing with Trustees24
ARTICLE
VII.
MISCELLANEOUS
24
Section
7.1
Duration and Termination of Trust24
Section
7.2
Reorganization
25
Section
7.3
Amendments25
Section
7.4
Resident
Agent
25
Section
7.5
Filing of Copies; References; Headings25
Section
7.6
Applicable Law26
▇▇▇▇▇▇
▇▇▇▇ INVESTMENT FUNDS
AMENDED
AND RESTATED AGREEMENT AND
DECLARATION OF TRUST made at Boston, Massachusetts this 2nd day of April, 2008,
by the Trustees hereunder, and by the holders of shares of beneficial interest
to be issued hereunder as hereinafter provided.
WITNESSETH
WHEREAS,
the Trustees adopted the
Original Master Trust Agreement on April 30, 1992 and Amendments No. 1, 2,
3, 4,
5, 6, 7, 8, 9, 10, 11 and 12 to the Original Master Trust Agreement prior to
the
date hereof;
WHEREAS,
the Trustees desire at this
time to restate the Original Master Trust Agreement, as amended (as so amended,
the “Current Declaration of Trust”), in order to incorporate into one document
the Original Master Trust Agreement and Amendments No. 1, 2, 3, 4, 5, 6, 7,
8,
9, 10, 11 and 12 to thereto, to amend Section 4.1 to remove references to
specific Classes of Sub-Trusts, to amend Section 4.2 to move the designated
Sub-Trusts to Schedule A and to amend Section 3.1 (h) to reflect the retirement
policy adopted by the Board;
WHEREAS,
the Trustees intend that such
restatement set forth the Current Declaration of Trust in its entirety without
amendment of any substantive provision of the Current Declaration of
Trust;
WHEREAS
this Trust has been formed to
carry on the business of an investment company; and
WHEREAS
this Trust is authorized to
issue its shares of beneficial interest in separate series, each separate series
to be a Sub-Trust hereunder, all in accordance with the provisions hereinafter
set forth; and
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 Master Trust Agreement to incorporate any amendments
thereto in one document and direct that this Amended and Restated Master Trust
Agreement 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 of beneficial interest in this Trust or Sub-Trusts
created hereunder as hereinafter set forth.
ARTICLE
I
NAME
AND
DEFINITIONS
Section
1.1
Name. This Trust shall be known as “▇▇▇▇▇▇ ▇▇▇▇ Investment Funds” and the
Trustees shall conduct the business of the Trust under that name or any other
name or names as they may from time to time determine.
Section
1.2
Definitions. Whenever used herein, unless otherwise required by the context
or
specifically provided:
(a)
The “Trust” refers to the Massachusetts business trust established by this Trust
Agreement, as amended from time to time, inclusive of each and every Sub-Trust
established hereunder;
(b)
“Trustees” refers to the Trustees of the Trust and of each Sub-Trust hereunder
named herein or elected in accordance with Article III;
(c)
“Shares” refers to the transferable units of interest into which the beneficial
interest in the Trust and each Sub-Trust of the Trust (as the context may
require) shall be divided from time to time;
(d)
“Series” refers to Series of Shares established and designated under or in
accordance with the provisions of Article IV, each of which Series shall be
a
Sub-Trust of the Trust;
(e)
“Shareholder” means a record owner of Shares;
(f)
The “1940 Act” refers to the Investment Company Act of 1940 and the Rules and
Regulations thereunder, all as amended from time to time;
(g)
The term “Commission” shall have the meaning given it in the 1940 Act;
(h)
“Declaration of Trust” shall mean this Agreement and Declaration of Trust as
amended or restated from time to time; and
(i)
“By-Laws” shall mean the By-Laws of the Trust as amended from time to
time.
ARTICLE
II
PURPOSE
OF TRUST
The
purpose of the Trust is to operate
as an investment company and to offer Shareholders of the Trust and each
Sub-Trust of the Trust one or more investment programs primarily in securities
and debt instruments.
ARTICLE
III
THE
TRUSTEES
Section
3.1
Number, Designation, Election, Term, etc.
(a)
Number. The Trustees serving as such may increase or decrease (to not less
than
two) the number of Trustees to a number other than the number theretofore
determined. No decrease in the number of Trustees shall have the effect of
removing any Trustee from office prior to the expiration of his term, but the
number of Trustees may be decreased in conjunction with the removal of a Trustee
pursuant to subsection (e) of this Section 3.1.
(b)
Election and Term. Each Trustee shall serve as a Trustee of the Trust and of
each Sub-Trust hereunder during the lifetime of this Trust and until its
termination as hereinafter provided except as such Trustee sooner dies, resigns
or is removed. Subject to Section 16(a) of the 1940 Act, the Trustees may elect
their own successors and may, pursuant to Section 3.1(f) hereof, appoint
Trustees to fill vacancies.
(c)
Resignation and Retirement. Any Trustee may resign his trust or retire as a
Trustee, by written instrument signed by him and delivered to the other Trustees
or to any officer of the Trust, and such resignation or retirement shall take
effect upon such delivery or upon such later date as is specified in such
instrument and shall be effective as to the Trust and each Sub-Trust
hereunder.
(d)
Removal. Any Trustee may be removed with or without cause at any time: (i)
by
written instrument, signed by at least two-thirds of the number of Trustees
prior to such removal, specifying the date upon which such removal shall become
effective; or (ii) by vote of Shareholders holding not less than two-thirds
of
the Shares then outstanding, cast in person or by proxy at any meeting called
for the purpose; or (iii) by a written declaration signed by Shareholders
holding not less than two-thirds of the Shares then outstanding and filed with
the Trust’s Custodian. Any such removal shall be effective as to the
Trust and each Sub-Trust hereunder.
(e)
Vacancies. Any vacancy or anticipated vacancy resulting from any reason,
including without limitation the death, resignation, retirement, removal or
incapacity of any of the Trustees, or resulting from an increase in the number
of Trustees by the other Trustees may (but so long as there are at least two
remaining Trustees, need not unless required by the 1940 Act) be filled by
a
majority of the remaining Trustees, subject to the provisions of Section 16(a)
of the 1940 Act, through the appointment in writing of such other person as
such
remaining Trustees in their discretion shall determine and such appointment
shall be effective upon the written acceptance of the person named therein
to
serve as a Trustee and agreement by such person to be bound by the provisions
of
this Declaration of Trust, except that any such appointment in anticipation
of a
vacancy to occur by reason of retirement, resignation or increase in number
of
Trustees to be effective at a later date shall become effective only at or
after
the effective date of said retirement, resignation or increase in number of
Trustees. As soon as any Trustee so appointed shall have accepted such
appointment and shall have agreed in writing to be bound by this Declaration
of
Trust and the appointment is effective, the Trust estate shall vest in the
new
Trustee, together with the continuing Trustees, without any further act or
conveyance.
(f)
Effect of Death, Resignation, etc. The death, resignation, retirement, removal
or incapacity of the Trustees, or anyone of them, shall not operate to annul
or
terminate the Trust or any Sub-Trust hereunder or to revoke or terminate any
existing agency or contract created or entered into pursuant to the terms of
this Declaration of Trust.
(g)
No Accounting. Except to the extent required by the 1940 Act or under
circumstances which would justify his or her removal for cause, no person
ceasing to be a Trustee as a result of his or her death, resignation,
retirement, removal or incapacity (nor the estate of any such person) shall
be
required to make an accounting to the Shareholders or remaining Trustees upon
such cessation.
(h)
Retirement Policy. Except for those individuals who (a) are Trustees as of
the
date that the Commission declares the Trust’s initial Registration Statement on
Form N-1A effective or (b) were members of the Board of Directors or Trustees
of
an investment company having an investment adviser or principal underwriter
under common control with the Trust’s investment adviser or principal
underwriter immediately prior to such investment company’s combination with the
Trust by merger, acquisition of assets or similar transaction, and of which
Trustees may continue to be nominated as Trustees and to serve as Trustees
if
elected or appointed in accordance with Section 3.1 (c) of this Article III,
an
individual who has reached the age of seventy-five (75) years may not be
elected, re-elected, or appointed to serve as a Trustee.
(i)
Trustees Emeritus. An individual who has served as a Trustee for minimum of
five
years (5) and who retires voluntarily or who may not stand for re-election
because of age may be designated by the remaining Trustees as a Trustee
Emeritus.
An
individual designated as a Trustee
Emeritus may, upon his or her request, be permitted to attend meetings of the
Trustees and to receive all materials sent to active Trustees. A
Trustee Emeritus shall not have voting rights at meetings of the Trustees and
shall not be under a duty to manage or direct the business and affairs of the
Trust. A Trustee Emeritus shall not be deemed to stand in a fiduciary
relation to the Trust and shall not be responsible to discharge the duties
of a
Trustee or to exercise that diligence, care or skill which a Trustee would
ordinarily be required to exercise under the laws of the Commonwealth of
Massachusetts; provided, however, that a Trustee Emeritus may be held liable
to
the Trust for any action amounting to bad faith, willful misconduct or gross
negligence, disclosure of any confidential information of the Trust or
appropriation of any opportunity of the Trust.
A
stipend, the amount to be determined
by the Trustees from time to time, which shall not exceed the basis upon which
Trustees of the Trust are compensated, shall be paid to each Trustee
Emeritus. A Trustee Emeritus shall be indemnified to the full extent
that an officer or Trustee of the Trust may be indemnified under any provision
of this Declaration of Trust or the By-Laws.
Section
3.2
Powers of Trustees. 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 and the purpose
of the Trust. Without limiting the foregoing, the Trustees may adopt By-Laws
not
inconsistent with this Declaration of Trust providing for the conduct of the
business and 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 from
time to time in accordance with the provisions of Section 4.1 hereof establish
Sub-Trusts, each such Sub-Trust to operate as a separate and distinct investment
medium and with separately defined investment objectives and policies and
distinct investment purpose; they may as they consider appropriate elect and
remove officers and appoint and terminate agents and consultants and hire and
terminate employees, anyone or more of the foregoing of whom may be a Trustee,
and may provide for the compensation of all of the foregoing; they may appoint
from their own number, and terminate, anyone or more committees consisting
of
two or more Trustees, including without implied limitation an executive
committee, which may, when the Trustees are not in session and subject to the
1940 Act, exercise some or all of the power and authority of the Trustees as
the
Trustees may determine; in accordance with Section 3.3 they may employ one
or
more advisers, administrators, distributor, depositories and custodians and
may
authorize any depository or custodian to employ subcustodians or agents and
to
deposit all or any part of such assets in a system or systems for the central
handling of securities and debt instruments, retain transfer, dividend,
accounting or Shareholder servicing agents or any of the foregoing, provide
for
the distribution of Shares by the Trust through one or more distributors,
principal underwriters or otherwise, set record dates or times for the
determination of Shareholders or various of them with respect to various
matters; they may compensate or provide for the compensation of the Trustees,
officers, advisers, administrators, custodians, other agents, consultants and
employees of the Trust or the Trustees on such terms as they deem appropriate;
and in general they may delegate to any officer of the Trust, to any committee
of the Trustees and to any employee, adviser, administrator, distributor,
depository, custodian, transfer and dividend disbursing agent, or any other
agent or consultant of the Trust, such authority, powers, functions and duties
as they consider desirable or appropriate for the conduct of the business and
affairs of the Trust, including without implied limitation the power and
authority to act in the name of the Trust and of the Trustees, to sign documents
and to act as attorney-in-fact for the Trustees.
Without
limiting the foregoing and to
the extent not inconsistent with the 1940 Act or other applicable law, the
Trustees shall have power and authority for and on behalf of the Trust and
each
separate Sub-Trust established hereunder;
(a)
Investments. To invest and reinvest cash and other property and to hold cash
or
other property uninvested without in any event being bound or limited by any
present or future law or custom in regard to investments by trustees;
(b)
Disposition of Assets. To sell, exchange, lend, pledge, mortgage, hypothecate,
write options on and lease any or all of the assets of the Trust;
(c)
Ownership Powers. To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities, debt instruments 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, debt instruments or property as
the
Trustees shall deem proper;
(d)
Subscription. To exercise powers and rights of subscription or otherwise which
in any manner arise out of ownership of securities or debt instruments;
(e)
Form of Holding. To hold any security, debt instrument 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 of any Sub-Trust or in the
name of a custodian, subcustodian or other depository or a nominee or nominees
or otherwise;
(f)
Reorganization, etc. To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer, any
security or debt instrument 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 or
debt instrument held in the Trust;
(g)
Voting Trusts, etc. To join with other holders of any securities or debt
instruments in acting through a committee, depository, voting trustee or
otherwise, and in that connection to deposit any security or debt instrument
with, or transfer any security or debt instrument to, any committee, depository
or trustee, and to delegate to them such power and authority with relation
to
any security or debt instrument (whether or not so deposited or transferred)
as
the Trustees shall deem proper, and to agree to pay, and to pay, such portion
of
the expenses and compensation of such committee, depository or trustee as the
Trustees shall deem proper;
(h)
Compromise. To compromise, arbitrate or otherwise adjust claims in favor of
or
against the Trust or any Sub-Trust of any matter in controversy, including
but
not limited to claims for taxes;
(i)
Partnerships, etc. To enter into joint ventures, general or limited partnerships
and any other combinations or associations;
(j)
Borrowing and Security. To borrow funds and to mortgage and pledge the assets
of
the Trust or any Part thereof to secure obligations arising in connection with
such borrowing;
(k)
Guarantees, etc. 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;
(l)
Insurance. 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, consultants, investment advisers, managers, administrators,
distributors, principal underwriters or independent contractors, or any thereof
(or any person connected therewith), 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 in any such capacity, 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
(m)
Pensions, etc. 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.
Except
as otherwise provided by the
1940 Act or other applicable law, this Declaration of Trust or the By-Laws,
any
action to be taken by the Trustees on behalf of the Trust or any Sub-Trust
may
be taken by a majority of the Trustees present at a meeting of Trustees (a
quorum, consisting of at least a majority of the Trustees then in office, 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
(or
such larger or different number as may be required by the 1940 Act or other
applicable law).
Section
3.3
Certain Contracts. Subject to compliance with the provisions of the 1940 Act,
but notwithstanding any limitations of present and future law or custom in
regard to delegation of powers by trustees generally, the Trustees may, at
any
time and from time to time and without limiting the generality of their powers
and authority otherwise set forth herein, enter into one or more contracts
with
anyone or more corporations, trusts, associations, partnerships, limited
partnerships, other types of organizations or individuals (“Contracting Party”)
to provide for the performance and assumption of some or all of the following
services, duties and responsibilities to, for or on behalf of the Trust and/or
any Sub-Trust and/or the Trustees, and to provide for the performance and
assumption of such other services, duties and responsibilities in addition
to
those set forth below as the Trustees may determine appropriate;
(a)
Advisory. Subject to the general supervision of the Trustees and in conformity
with the stated policy of the Trustees with respect to the investments of the
Trust or of the assets belonging to any Sub-Trust of the Trust (as that phrase
is defined in subsection (a) of Section 4.2), to manage such investments and
assets, make investment decisions with respect thereto and to place purchase
and
sale orders for portfolio transactions relating to such investments and
assets;
(b)
Administration. Subject to the general supervision of the Trustees and in
conformity with any policies of the Trustees with respect to the operations
of
the Trust and each Sub-Trust, to supervise all or any part of the operations
of
the Trust and each Sub-Trust and to provide all or any part of the
administrative and clerical personnel, office space and office equipment and
services appropriate for the efficient administration and operations of the
Trust and each Sub-Trust;
(c)
Distribution. To distribute the Shares of the Trust and each Sub-Trust, to
be
principal underwriter of such Shares, and/or to act as agent of the Trust and
each Sub-Trust in the sale of Shares and the acceptance or rejection of orders
for the purchase of Shares;
(d)
Custodian and Depository. To act as depository for and to maintain custody
of
the property of the Trust and each Sub-Trust and accounting records in
connection therewith;
(e)
Transfer and Dividend Disbursing Agency. To maintain records of the ownership
of
outstanding Shares, the issuance and redemption and the transfer thereof, and
to
disburse any dividends declared by the Trustees and in accordance with the
policies of the Trustees and/or the instructions of any particular Shareholder
to reinvest any such dividends;
(f)
Shareholder Servicing. To provide service with respect to the relationship
of
the Trust and its Shareholders, records with respect to Shareholders and their
Shares and similar matters; and
(g)
Accounting. To handle all or any part of the accounting responsibilities,
whether with respect to the Trust’s properties, Shareholders or
otherwise.
The
same person may be the Contracting
Party for some or all of the services, duties and responsibilities to, for
and
of the Trust and/or the Trustees, and the contracts with respect thereto may
contain such terms interpretive of or in addition to the delineation of the
services, duties and responsibilities provided for, including provisions that
are not inconsistent with the l940 Act relating to the standard of duty of
and
the rights to indemnification of the Contracting Party and others, as the
Trustees may determine. Nothing herein shall preclude, prevent or limit the
Trust or a Contracting Party from entering into sub-contractual arrangements
relative to any of the matters referred to in Sections 3.3(a) through (g)
hereof.
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 Contracting Party, or of
or
for any parent or affiliate of any Contracting Party, or that the Contracting
Party or any parent or affiliate thereof is a Shareholder or has an interest
in
the Trust or any Sub-Trust, or that
(ii)
any
Contracting Party may have a contract providing for the rendering of any similar
services to one or more other corporations, trusts, associations, partnerships,
limited partnerships or other organizations, or have other business or
interests,
shall
not
affect the validity of any contract for the performance and assumption of
services, duties and responsibilities to, for or of the Trust or any Sub-Trust
and/or the Trustees 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, any Sub-Trust or its Shareholders, provided that
in
the case of any relationship or interest referred to in the preceding clause
(i)
on the part of any Trustee or officer of the Trust either (x) the material
facts
as to such relationship or interest have been disclosed to or are known by
the
Trustees not having any such relationship or interest and the contract involved
is approved in good faith by a majority of such Trustees not having any such
relationship or interest (even though such unrelated or disinterested Trustees
are less than a quorum of all of the Trustees), (y) the material facts as to
such relationship or interest and as to the contract have been disclosed to
or
are known by the Shareholders entitled to vote thereon and the contract involved
is specifically approved in good faith by vote of the Shareholders or (z) the
specific contract involved is fair to the Trust as of the time it is authorized,
approved or ratified by the Trustees or by the Shareholders.
Section
3.4
Payment of Trust Expenses and Compensation of Trustees. The Trustees are
authorized to pay or to cause to be paid out of the principal or income of
the
Trust or any Sub-Trust, or partly out of principal and partly out of income,
and
to charge or allocate the same to, between or among such one or more of the
Sub-Trusts that may be established and designated pursuant to Article IV, as
the
Trustees deem fair, all expenses, fees, charges, taxes and liabilities incurred
or arising in connection with the Trust or any Sub-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, administrator, distributor, principal
underwriter, auditor, counsel, depository, custodian, transfer agent, dividend
disbursing agent, accounting agent, shareholder servicing agent, and such other
agents, consultants, and independent contractors and such other expenses and
charges as the Trustees may deem necessary or proper to incur. Without limiting
the generality of any other provision hereof, the Trustees shall be entitled
to
reasonable compensation from the Trust for their services as Trustees and may
fix the amount of such compensation.
Section
3.5
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.
ARTICLE
IV
SHARES
Section
4.1
Description of Shares. The beneficial interest in the Trust shall be divided
into Shares, all with a par value of $.001, but the Trustees shall have the
authority from time to time to divide the Shares into two or more Series of
Shares (each of which Series of Shares shall be a separate and distinct
Sub-Trust of the Trust, including without limitation those Sub-Trusts
specifically established and designated in Section 4.2) and to divide each
Sub-Trust into one or more Classes of Shares (each of which shall be a separate
and distinct Class of the Sub-Trust), as they deem necessary or desirable.
Each
Sub-Trust shall be deemed to be a separate trust established under, and subject
to the terms of, this Declaration of Trust. The Trustees shall have exclusive
power without the requirement of shareholder approval to establish and designate
such separate and distinct Sub-Trusts, and to fix and determine the relative
rights and preferences as between the shares of the separate Sub-Trusts and
each
Class of the Sub-Trusts, as to right of redemption and the price, terms and
manner of redemption, special and relative rights as to dividends and other
distributions and on liquidation, sinking or purchase fund provisions,
conversion rights and conditions under which the several Sub-Trusts and each
Class of the Sub-Trusts shall have separate voting rights or no voting
rights.
The
number of authorized Shares and the
number of Shares of each Sub-Trust, including Classes of the Sub-Trusts, that
may be issued is unlimited, and the Trustees may issue Shares of any Sub-Trust
for such consideration and on such terms as they may determine (or for no
consideration if pursuant to a Share dividend or split-up), all without action
or approval of the Shareholders. All Shares when so issued on the
terms determined by the Trustees shall be fully paid and non-assessable (but
may
be subject to mandatory contribution back to the Trust as provided in subsection
(h) of Section 4.2). The Trustees may classify or reclassify any
unissued Shares or any Shares previously issued and reacquired of any Sub-Trust
into one or more Sub-Trusts, including Classes of Sub-Trusts, that may be
established and designated from time to time. The Trustees may hold
as treasury Shares, reissue for such consideration and on such terms as they
may
determine, or cancel, at their discretion from time to time, any Shares of
any
Sub-Trust as reacquired by the Trust.
The
Trustees may from time to time
close the transfer books or establish record dates and times for the purposes
of
determining the holders of Shares entitled to be treated as such, to the extent
provided or referred to in Section 5.3.
The
establishment and designation of
any Sub-Trust in addition to that established and designated in Section 4.2
shall be effective upon the execution by a majority of the then Trustees of
an
instrument setting forth such establishment and designation and the relative
rights and preferences of the Shares of such Sub-Trust or as otherwise provided
in such instrument. At any time that there are no Shares outstanding
of any particular Sub-Trust previously established and designated, the Trustees
may by an instrument executed by a majority of their number abolish that
Sub-Trust and the establishment and designation thereof. Each
instrument referred to in this paragraph shall have the status of an amendment
to this Declaration of Trust.
Any
Trustee, officer or other agent of
the Trust, and any organization .in which any such person is interested, may
acquire, own, hold and dispose of Shares of any Sub-Trust of the Trust to the
same extent as if such person were not a Trustee, officer or other agent of
the
Trust; and the Trust may issue and sell or cause to be issued and sold and
may
purchase Shares of any Sub-Trust from any such person or any such organization
subject only to the general limitations, restrictions or other provisions
applicable to the sale or purchase of Shares of such Sub-Trust generally.
Section
4.2
Establishment and Designation of Sub-Trusts. Without limiting the authority
of
the Trustees set forth in Section 4.1 to establish and designate any further
Sub-Trusts, the Trustees hereby establish and designate the Sub-Trusts listed
in
Schedule A.
The
Sub-Trusts listed in Schedule A and any Shares of any further Sub-Trusts ,
including Classes of Sub-Trusts, that may from time to time be established
and
designated by the Trustees shall (unless the Trustees otherwise determine with
respect to some further Sub-Trust at the time of establishing and designating
the same) have the following relative rights and preferences;
(a)
Assets Belonging to Sub-Trusts. All consideration received by the Trust for
the
issue or sale of Shares of a particular Sub-Trust, together with all assets
in
which such consideration is invested or reinvested, all income, earnings,
profits and proceeds thereof, including any proceeds derived from the sale,
exchange or liquidation of such assets, and any funds or payments derived from
any reinvestment of such proceeds in whatever form the same may be, shall be
held by the Trustees in trust for the benefit of the holders of Shares of that
Sub-Trust, shall irrevocably belong to that Sub-Trust for all purpose and shall
be so recorded upon the books of account of the Trust. Such consideration,
assets, income, earnings, profits and proceeds thereof, including any proceeds
derived from the sale, exchange or liquidation of such assets, and any funds
or
payments derived from any reinvestment of such proceeds, in whatever form the
same may be, together with any General Items allocated to that Sub-Trust as
provided in the following sentence, are herein referred to as “assets belonging
to” that Sub-Trust. In the event that there are any assets, income,
earnings, profits and proceeds thereof, funds or payments which are not readily
identifiable as belonging to any particular Sub-Trust (collectively “General
Items”), the Trustees shall allocate such General Items to and among anyone or
more of the Sub-Trusts 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 Items so allocated to a particular Sub-Trust shall
belong to that Sub-Trust. Each such allocation by the Trustees shall be
conclusive and binding upon the Shareholders of all Sub-Trusts for all
purposes.
(b)
Liabilities Belonging to Sub-Trusts. The assets belonging to each particular
Sub-Trust shall be charged with the liabilities in respect of that Sub-Trust
and
all expenses, costs, charges and reserves attributable to that Sub-Trust, and
any general liabilities, expenses, costs, charges or reserves of the Trust
which
are not readily identifiable as belonging to any particular Sub-Trust shall
be
allocated and charged by the Trustees to and among any one or more of the
Sub-Trusts established and designated from time to time in such manner and
on
such basis as the Trustees in their sole discretion deem fair and equitable.
The
liabilities, expenses, costs, charges and reserves allocated and so charged
to a
Sub-Trust are herein referred to as “liabilities belonging to” that
Sub-Trust. Each allocation of liabilities, expenses, costs, charges
and reserves by the Trustees shall be conclusive and binding upon the
Shareholders of all Sub-Trusts for all purposes. Any creditor of any
Sub-Trust may look only to the assets of that Sub-Trust to satisfy such
creditor’s debt.
The
Trustees shall have full
discretion, to the extent not inconsistent with the 1940 Act, to determine
which
items shall be treated as income and which items as capital; and each such
determination and allocation shall be conclusive and binding upon the
Shareholders.
(c)
Dividends. Dividends and distributions on Shares of a particular Sub-Trust
may
be paid with such frequency as the Trustees may determine, which may be daily
or
otherwise pursuant to a standing resolution or resolutions adopted only once
or
with such frequency as the Trustees may determine, to the holders of Shares
of
that Sub-Trust, from such of the income and capital gains, accrued or realized,
from the assets belonging to that Sub-Trust, as the Trustees may determine,
after providing for actual and accrued liabilities belonging to that Sub-Trust.
All dividends and distributions on Shares of a particular Sub-Trust shall be
distributed pro rata to the holders of Shares of that Sub-Trust in proportion
to
the number of Shares of that Sub-Trust held by such holders at the date and
time
of record established for the payment of such dividends or distributions, except
that in connection with any dividend or distribution program or procedure the
Trustees may determine that no dividend or distribution shall be payable on
Shares as to which the Shareholder’s purchase order and/or payment have not been
received by the time or times established by the Trustees under such program
or
procedure. Such dividends and distributions may be made in cash or Shares of
that Sub-Trust or a combination thereof as determined by the Trustees or
pursuant to any program that the Trustees may have in effect at the time for
the
election by each Shareholder of the mode of the making of such dividend or
distribution to that Shareholder. Any such dividend or distribution
paid in Shares will be paid at the net asset value thereof as determined in
accordance with subsection (h) of Section 4.2.
(d)
Liquidation. In the event of the liquidation or dissolution of the Trust, the
Shareholders of each Sub-Trust that has been established and designated shall
be
entitled to receive, when and as declared by the Trustees, the excess of the
assets belonging to that Sub-Trust over the liabilities belonging to that
Sub-Trust. The assets so distributable to the Shareholders of any particular
Sub-Trust shall be distributed among such Shareholders in proportion to the
number of Shares of that Sub-Trust held by them and recorded on the books of
the
Trust. The liquidation of any particular Sub-Trust may be authorized by vote
of
a majority of the Trustees then in office subject to the approval of a majority
of the outstanding voting Shares of that Sub-Trust, as defined in the 1940
Act.
(e)
Voting. On each matter submitted to a vote of the Shareholders, each holder
of a
Share of each Sub-Trust shall be entitled to one vote for each whole Share
and
to a proportionate fractional vote for each fractional Share standing in his
name on the books of the Trust. The Trustees shall cause each matter required
or
permitted to be voted upon at a meeting or by written consent of Shareholders
to
be submitted to a vote of all classes of outstanding Shares entitled to vote
thereon (irrespective of class), unless the 1940 Act or other applicable laws
or
regulations require that the actions of the Shareholders be taken by a separate
vote of one or more classes, or the Trustees determine that any matter to be
submitted to a vote of Shareholders affects only the rights or interests of
one
or more (but not all) classes of outstanding Shares, in which case only the
Shareholders of the class or classes so affected shall be entitled to vote
thereon.
(f)
Redemption by Shareholder. Each holder of Shares of a particular Sub-Trust
shall
have the right at such times as may be permitted by the Trust, but no less
frequently than once each week, to require the Trust to redeem all or any part
of his Shares of that Sub-Trust at a redemption price equal to the net asset
value per Share of that Sub-Trust next determined in accordance with subsection
(h) of this Section 4.2 after the Shares are properly tendered for redemption.
Payment of the redemption price shall be in cash; provided, however, that if
the
Trustees determine, which determination shall be conclusive, that conditions
exist which make payment wholly in cash unwise or undesirable, the Trust may
make payment wholly or partly in securities or other assets belonging to the
Sub-Trust of which the Shares being redeemed are part at the value of such
securities or assets used in such determination of net asset value.
Notwithstanding
the foregoing, the
Trust may postpone payment of the redemption price and may suspend the right
of
the holders of Shares of any Sub-Trust to require the Trust to redeem Shares
of
that Sub-Trust during any period or at any time when and to the extent
permissible under the 1940 Act.
(g)
Redemption by Trust. Each Share of each Sub-Trust that has been established
and
designated is subject to redemption by the Trust at the redemption price which
would be applicable if such Share was then being redeemed by the Shareholder
pursuant to subsection (f) of this Section 4.2: (a) at any time, if the Trustees
determine in their sole discretion that failure to so redeem may have materially
adverse consequences to the holders of the Shares of the Trust or any Sub-Trust
thereof or (b) upon such other conditions as may from time to time be determined
by the Trustees and set forth in the then current Prospectus of the Trust with
respect to maintenance of Shareholder accounts of a minimum amount. Upon such
redemption the holders of the Shares so redeemed shall have no further right
with respect thereto other than to receive payment of such redemption
price.
(h)
Net Asset Value. The net asset value per Share of any Sub-Trust shall be the
quotient obtained by dividing the value of the net assets of that Sub-Trust
(being the value of the assets belonging to that Sub-Trust less the liabilities
belonging to that Sub-Trust) by the total number of Shares of that Sub-Trust
outstanding, all determined in accordance with the methods and procedures,
including without limitation those with respect to rounding, established by
the
Trustees from time to time.
The
Trustees may determine to maintain the net asset value per Share of any
Sub-Trust at a designated constant dollar amount and in connection therewith
may
adopt procedures not inconsistent with the 1940 Act for the continuing
declarations of income attributable to that Sub-Trust as dividends payable
in
additional Shares of that Sub-Trust at the designated constant dollar amount
and
for the handling of any losses attributable to
that. Sub-Trust. Such procedures may provide that in the
event of any loss each Shareholder shall be deemed to have contributed to the
capital of the Trust attributable to that Sub-Trust his pro rata portion of
the
total number of Shares required to be cancelled in order to permit the net
asset
value per Share of that Sub-Trust to be maintained, after reflecting such loss,
at the designated constant dollar amount. Each Shareholder of the
Trust shall be deemed to have agreed, by his or her investment in any Sub-Trust
with respect to which the Trustees shall have adopted any such procedure, to
make the contribution referred to in the preceding sentence in the event of
any
such loss.
(i)
Transfer. All Shares of each particular Sub-Trust shall be transferable, but
transfers of Shares of a particular Sub-Trust will be recorded on the Share
transfer records of the Trust applicable to that Sub-Trust only at such times
as
Shareholders shall have the right to require the Trust to redeem Shares of
that
Sub-Trust and at such other times as may be permitted by the Trustees.
(j)
Equality. All Shares of each particular Sub-Trust shall represent. an equal
proportionate interest in the assets belonging to that Sub-Trust (subject to
the
liabilities belonging to that Sub-Trust), and each Share of any particular
Sub-Trust shall be equal to each other Share of that Sub-Trust; but the
provisions of this sentence shall not restrict any distinctions permissible
under subsection (c) of this Section 4.2 that may exist with respect to
dividends and distributions on Shares of the same Sub-Trust. The Trustees may
from time to time divide or combine the Shares of any particular Sub-Trust
into
a greater or lesser number of Shares of that Sub-Trust without thereby changing
the proportionate beneficial interest in the assets belonging to that Sub-Trust
or in any way affecting the rights of Shares of any other Sub-Trust.
(k)
Fractions. Any fractional Share of any Sub-Trust, if any such fractional Share
is outstanding, shall carry proportionately all of the rights and obligations
of
a whole Share of that Sub-Trust, including rights and obligations with respect
to voting, receipt of dividends and distributions, redemption of Shares and
liquidation of the Trust.
(1)
Conversion Rights. Subject to compliance with the requirements of the 1940
Act,
the Trustees shall have the authority to provide that holders of Shares of
any
Sub-Trust shall have the right to convert said Shares into Shares of one or
more
other Sub-Trusts in accordance with such requirements and procedures as may
be
established by the Trustees.
Section
4.3
Ownership of Shares. The ownership of Shares shall be recorded on the books
of
the Trust or of a transfer or similar agent for the Trust, which books shall
be
maintained separately for the Shares of each Sub-Trust that has been established
and designated. No certificates certifying the ownership of Shares need 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
Shares certificates, the use of facsimile signatures, the transfer of Shares
and
similar matters. The record books of the Trust as kept by the Trust or any
transfer or similar held from time to time by each such Shareholder.
Section
4.4
Investments in the Trust. The Trustees may accept investments in the Trust
and
each Sub-Trust thereof from such persons and on such terms and for such
consideration, not inconsistent with the provisions of the 1940 Act, as they
from time to time authorize. The Trustees may authorize any distributor,
principal underwriter, custodian, transfer agent or other person to accept
orders for the purchase of Shares that conform to such authorized terms and
to
reject any purchase orders for Shares whether or not conforming to such
authorized terms.
Section
4.5
No Pre-emptive Riqhts. Shareholders shall have no pre-emptive or other right
to
subscribe to any additional Shares or other securities issued by the
Trust.
Section
4.6
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 Trust or any Sub-Trust thereof or 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
V
SHAREHOLDERS’
VOTING POWERS AND MEETINGS
Section
5.1
Voting Powers. The Shareholders shall have power to vote only (i) for the
election or removal of Trustees as provided in Section 3.1, (ii) with respect
to
any contract with a Contracting Party as provided in Section 3.3 as to which
Shareholder approval is required by the 1940 Act, (iii) with respect to any
termination or reorganization of the Trust or any Sub-Trust to the extent and
as
provided in Sections 7.1 and 7.2, (iv) with respect to any amendment of this
Declaration of Trust to the extent and as provided in Section 7.3, (v) 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 any Sub-Trust thereof or the Shareholders (provided, however, that a
shareholder of a particular Sub-Trust shall not be entitled to a derivative
or
class action on behalf of any other Sub-Trust (or shareholder of any other
Sub-Trust) of the Trust) and (vi) with respect to such additional matters
relating to the Trust as may be required by the 1940 Act, 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. 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 anyone of
them
unless at or prior to exercise of the proxy the Trust receives a specific
written notice to the contrary from anyone of them. A proxy purporting to be
executed by or on behalf of a Shareholder shall be deemed valid unless
challenged at or prior to its exercise and the burden of proving invalidity
shall rest on the challenger. Until Shares are issued, the Trustees may exercise
all rights of Shareholders and may take any action required by law, this
Declaration of Trust or the By-Laws to be taken by Shareholders.
Section
5.2
Meetings. Meetings of Shareholders 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 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 at the
Shareholder’s address as it appears on the records of the Trust. The
Trustees shall promptly call and give notice of a meeting of Shareholders for
the purpose of voting upon removal of any Trustee of the Trust when requested
to
do so in writing by Shareholders holding not less than 10% of the Shares then
outstanding. If the Trustees 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 Shares then outstanding requesting
a
meeting be called for any other purpose requiring action by the Shareholders
as
provided herein or in the By-Laws, then Shareholders holding at least 10% of
the
Shares then outstanding 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.
Section
5.3
Record Dates. For the purpose of determining the Shareholders who are entitled
to vote or act at any meeting or any adjournment thereof, or who are entitled
to
participate in any dividend or distribution, or for the purpose of any other
action, the Trustees may from time to time close the transfer books for such
period, not exceeding 30 days (except at or in connection with the termination
of the Trust), as the Trustees may determine; or without closing the transfer
books the Trustees may fix a date and time not more than 90 days prior to the
date of any meeting of Shareholders or other action as the date and time of
record for the determination of Shareholders entitled to vote at such meeting
or
any adjournment thereof or to be treated as Shareholders of record for purposes
of such other action, and any Shareholder who was a Shareholder at the date
and
time so fixed shall be entitled to vote at such meeting or any adjournment
thereof or to be treated as a Shareholder of record for purposes of such other
action, even though he has since that date and time disposed of his Shares,
and
no Shareholder becoming such after that date and time shall be so entitled
to
vote at such meeting or any adjournment thereof or to be treated as a
Shareholder of record for purposes of such other action.
Section
5.4
Quorum and Required Vote. A majority of the Shares entitled to vote shall be
a
quorum for the transaction of business at a Shareholders’ meeting, but 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. A
majority of the Shares voted, at a meeting at which a quorum is present, shall
decide any questions and a plurality shall elect a Trustee, except when a
different vote is required or permitted by any provision of the 1940 Act or
other applicable law or by this Declaration of Trust or the By-Laws.
Section
5.5
Action by Written Consent. Subject to the provisions of the 1940 Act and other
applicable law, 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 the 1940 Act or by any express
provision of this Declaration of Trust or the By-Laws) consent to the action
in
writing and such written consents are filed with the records of the meetings
of
Shareholders. Such consent shall be treated for all purposes as a vote taken
at
a meeting of Shareholders.
Section
5.6
Inspection of Records. The records of the Trust shall be open to inspection
by
Shareholders to the same extent as is permitted stockholders of a Massachusetts
business corporation under the Massachusetts Business Corporation Law.
Section
5.7
Additional Provisions. The By-Laws may include further provisions for
Shareholders’ votes and meetings and related matters not inconsistent with the
provisions hereof.
Section
5.8
Shareholder Communications. 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 either Shares having a net asset value of at least $25,000
or at least 1% of the outstanding Shares, whichever is less, 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 Shareholder
meeting and accompanied by a form of communication and request which they wish
to transmit, the Trustees shall .within five business days after receipt of
such
application either (i) 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
(ii)
inform such applicants as to the approximate number of Shareholders of record,
and the approximate cost of mailing to them the proposed communication and
form
of request.
If
the Trustees elect to follow the
course specified in item (ii) above, the Trustees, upon the written request
of
such applications, accompanied by a tender of the material to be mailed and
of
the reasonable expense of mailing, shall, with reasonable promptness, mail
such
material to all Shareholders of record at their addresses as recorded on the
books unless within five business days after such tender the Trustees shall
mail
to such applicants and file with the Commission, together with a copy of the
material to be mailed, 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. The Trustees shall
thereafter comply with the requirements of the 1940 Act.
ARTICLE
VI
LIMITATION
OF LIABILITY; INDEMNIFICATION
Section
6.1
Trustees, Shareholders, etc. Not personally Liable; Notice. All persons
extending credit to, contracting with or having any claim against the Trust
shall look only to the assets of the Sub-Trust with which such person dealt
for
payment under such credit, contract or claim; and neither the Shareholders
of
any Sub-Trust nor the Trustees nor any of the Trust’s officers, employees or
agents, whether past, present or future, nor any other Sub-Trust shall be
personally liable therefor. 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, any Sub-Trust or the Trustees or any of
them
in connection with the Trust shall be conclusively deemed to have been executed
or done only by or for the Trust (or the Sub-Trust) or the Trustees and not
personally. Nothing in this Declaration of Trust shall protect any
Trustee or officer against any liability to the Trust or the Shareholders to
which such Trustee or officer 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 or of such officer.
Every
note, bond, contract, instrument,
certificate or undertaking made or issued by the Trustees or by any officers
or
officer shall give notice that this Declaration of Trust is on file with the
Secretary of the Commonwealth of Massachusetts and shall recite to the effect
that the same was executed or made by or on behalf of the Trust or by them
as
Trustees or Trustee or as officers or officer and not individually and that
the
obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and property
of
the Trust, or the particular Sub-Trust in question, as the case may be, but
the
omission thereof shall not operate to bind any Trustees or Trustee or officers
or officer or Shareholders or Shareholder individually.
Section
6.2
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
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. Subject to the foregoing, (i) the Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing of any officer,
agent, employee, consultant, adviser, administrator, distributor or principal
underwriter, custodian or transfer, dividend disbursing, shareholder servicing
or accounting agent of the Trust, nor shall any Trustee be responsible for
the
act or omission of any other Trustee; (ii) the Trustees may take advice of
counselor other experts with respect to the meaning and operation of this
Declaration of Trust and their duties as Trustees, and shall be under no
liability for any act or omission in accordance with such advice or for failing
to follow such advice; and (iii) in discharging their duties, the Trustees,
when
acting in good faith, shall be entitled to rely upon the books of account of
the
Trust and upon written reports made to the Trustees by any officer appointed
by
them, any independent public accountant and (with respect to the subject matter
of the contract involved) any officer, partner or responsible employee of a
Contracting Party appointed by the Trustees pursuant to Section 3.3. The
Trustees as such shall not be required to give any bond or surety or any other
security for the performance of their duties.
Section
6.3
Indemnification of Shareholders. In case any Shareholder (or former Shareholder)
of any Sub-Trust of the Trust shall be charged or held to be personally liable
for any obligation or liability of the Trust solely by reason of being or having
been a Shareholder and not because of such Shareholder’s acts or omissions or
for some other reason, said Sub-Trust (upon proper and timely request by the
Shareholder) shall assume the defense against such charge and satisfy any
judgment thereon, and 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 said Sub-Trust estate to be held harmless
from and indemnified against all loss and expense arising from such
liability.
Section
6.4
Indemnification of Trustees, Officers, etc. The Trust shall indemnify (from
the
assets of the Sub-Trust or Sub-Trusts in question) 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, including but not limited to amounts paid in
satisfaction of judgments, in compromise or as fines and penalties, and
expenses, including reasonable accountants’ and counsel fees, 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 person may be
or
may have been threatened, while in office or thereafter, by reason of being
or
having been such a Trustee or officer, director or trustee, except with respect
to any matter as to which it has been determined that such Covered Person (i)
did not act in good faith in the reasonable belief that such Covered Person’s
action was in or not opposed to the best interests of the Trust or (ii) had
acted with willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of such Covered Person’s office
(either and both of the conduct described in (i) and (ii) being referred to
hereafter as “Disabling Conduct”) . A determination that the Covered Person is
entitled to indemnification may be made by (i) a final decision on the merits
by
a court or other body before whom the proceeding was brought that the person
to
be indemnified was not liable by reason of Disabling Conduct, (ii) dismissal
of
a court action or an administrative proceeding against a Covered Person for
insufficiency of evidence of Disabling Conduct or (iii) a reasonable
determination, based upon a review of the facts, that the indemnitee was not
liable by reason of Disabling Conduct by (a) a vote of a majority of a quorum
of
Trustees who are neither “interested persons” of the Trust as defined in Section
2(a)(l9) of the 1940 Act nor parties to the proceeding or (b) an independent
legal counsel in a written opinion. Expenses, including accountants’ and counsel
fees so incurred by any such Covered Person (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines or penalties), may be
paid
from time to time by the Sub-Trust in question in advance of the final
disposition of any such action, suit or proceeding, provided that the Covered
Person shall have undertaken to repay the amounts so paid to the Sub-Trust
in
question if it is ultimately determined that indemnification of such expenses
is
not authorized under this Article VI and (i) the Covered Person shall have
provided security for such undertaking, (ii) the Trust shall be insured against
losses arising by reason of any lawful advances or (iii) a majority of a quorum
of the disinterested Trustees who are not parties to the proceeding, or an
independent legal counsel in a written opinion, shall have determined, based
on
a review of readily available facts (as opposed to a full trial-type inquiry),
that there is reason to believe that the Covered Person ultimately will be
found
entitled to indemnification.
Section
6.5
Compromise Payment. As to any matter disposed of by a compromise payment by
any
such Covered Person referred to in Section 6.4, pursuant to a consent decree
or
otherwise, no such indemnification either for said payment or for any other
expenses shall be provided unless such indemnification shall be approved (i)
by
a majority of the disinterested Trustees who are not a party to the proceeding
or (ii) by an independent legal counsel in a written opinion. Approval by the
Trustees pursuant to clause (i) or by independent legal counsel pursuant to
clause (ii) shall not prevent the recovery from any Covered Person of any amount
paid to such Covered Person in accordance with any of such clauses 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 or not opposed to 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.
Section
6.6
Indemnification Not Exclusive, etc. The right of indemnification provided by
this Article VI shall not be exclusive of or affect any other rights to which
any such Covered Person may be entitled. As used in this Article VI, “Covered
Person” shall include such person’s heirs, executors and administrators, an
“interested Covered Person” is one against whom the action, suit or other
proceeding in question or another action, suit or other proceeding on the same
or similar grounds is then or has been pending or threatened, and a
“disinterested” person is a person 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 or threatened. Nothing contained
in
this article shall affect any rights to indemnification to which personnel
of
the Trust, other than Trustees and 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.
Section
6.7
Liability of Third Persons Dealing with Trustees. No person dealing with the
Trustees shall be bound to make any inquiry concerning the validity of any
transaction made or to be made by the Trustees or to see to the application
of
any payments made or property transferred to the Trust or upon its order.
ARTICLE
VII
MISCELLANEOUS
Section
7.1
Duration and Termination of Trust. Unless terminated as provided herein, the
Trust shall continue without limitation of time and, without limiting the
generality of the foregoing, no change, alteration or modification with respect
to any Sub-Trust shall operate to terminate the Trust. The Trust may be
terminated at any time by a majority of the Trustees then in office subject
to a
favorable vote of a majority of the outstanding voting securities, as defined
in
the 1940 Act, Shares of each Sub-Trust voting separately by Sub-Trust.
Upon
termination, after paying or
otherwise providing for all charges, taxes, expenses and liabilities, whether
due or accrued or anticipated 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, securities or other
property, or any combination thereof, and distribute the proceeds to the
Shareholders, in conformity with the provisions of subsection (d) of Section
4.2.
Section
7.2
Reorganization. The Trust may merge or consolidate with any other corporation,
partnership, association, trust or other organization and the Trustees may
sell,
convey, and transfer the assets of the Trust, or the assets belonging to anyone
or more Sub-Trusts, to another trust, partnership, association or corporation
organized under the laws of any state of the United States, or to the Trust
to
be held as assets belonging to another Sub-Trust, in exchange for cash, shares
or other securities (including, in the case of a transfer to another Sub-Trust
of the Trust, Shares of such other Sub-Trust) with such transfer being made
subject to, or with the assumption by the transferee of, the liabilities
belonging to each Sub-Trust the assets of which are so transferred; provided,
however, that no assets belonging to any particular Sub-Trust shall be so
transferred unless the terms of such transfer shall have first been approved
at
a meeting called for the purpose by the affirmative vote of the holders of
a
majority of the outstanding voting Shares, as defined in the 1940 Act, of that
Sub-Trust. Any such consolidation or merger shall require approval by the
affirmative vote of the holders of a majority of the outstanding voting Shares,
as defined in the 1940 Act, of the Trust (or each Sub-Trust affected thereby,
as
the case may be), except that such affirmative vote of the holders of Shares
shall not be required if the Trust (or Sub-Trust affected thereby, as the case
may be) shall be the survivor of such consolidation or merger.
Section
7.3
Amendments. All rights granted to the Shareholders under this Declaration of
Trust are granted subject to the reservation of the right to amend this
Declaration of Trust as herein provided, except that no amendment shall repeal
the limitations on personal liability of any Shareholder or Trustee or repeal
the prohibition of assessment upon the Shareholders without the express consent
of each Shareholder or Trustee involved. Subject to the foregoing, the
provisions of this Declaration of Trust (whether or not related to the rights
of
Shareholders) may be amended at any time, so long as such amendment does not
adversely affect the rights of any Shareholder with respect to which such
amendment is or purports to be applicable and so long as such amendment is
not
in contravention of applicable law, including the 1940 Act, by an instrument
in
writing signed by a majority of the then Trustees (or by an officer of the
Trust
pursuant to the vote of a majority of such Trustees). Any amendment to this
Declaration of Trust that adversely affects the rights of Shareholders may
be
adopted at any time by an instrument in writing signed by a majority of the
then
Trustees (or by an officer of the Trust pursuant to a vote of a majority of
such
Trustees) when authorized to do so by the vote in accordance with subsection
(e)
of Section 4.2 of Shareholders holding a majority of the Shares entitled to
vote. Subject to the foregoing, any such amendment shall be effective as
provided in the instrument containing the terms of such amendment or, if there
is no provision therein with respect to effectiveness, upon the execution of
such instrument and of a certificate (which may be a part of such instrument)
executed by a Trustee or officer of the Trust to the effect that such amendment
has been duly adopted.
Section
7.4
Resident Agent. The Trust may appoint and maintain a resident agent in the
Commonwealth of Massachusetts.
Section
7.5
Filing of Copies; References; Headings. The original or a copy of this
instrument and of each amendment hereto shall be kept at the office of the
Trust
where it may be inspected by any Shareholder. A copy of this instrument and
of
each amendment hereto shall be filed by the Trust with the Secretary of the
Commonwealth of Massachusetts and with the Boston City Clerk, as well as any
other governmental office where such filing may from time to time be required,
but the failure to make any such filing shall not impair the effectiveness
of
this instrument or any such amendment. 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, as to the identities of the Trustees and officers,
and as to any matters in connection with the Trust hereunder; and, with the
same
effect as if it were the original, may rely on a copy certified by an officer
of
the Trust to be a copy of this instrument or of any such amendments. In this
instrument and in any such amendment, references to this instrument, and all
expressions like “herein,” “hereof,” and “hereunder” shall be deemed to refer to
this instrument as a whole as the same may be amended or affected by any such
amendments. The masculine gender shall include the feminine and
neuter genders. Headings are placed herein for convenience of
reference only and shall not be taken as a part hereof or control or affect
the
meaning, construction or effect of this instrument. This instrument
may be executed in any number of counterparts each of which shall be deemed
an
original.
Section
7.6
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, including the
Massachusetts Business Corporation Law as the same may be amended from time
to
time, to which reference is made with the intention that matters not
specifically covered herein or as to which an ambiguity may exist shall be
resolved as if the Trust were a business corporation organized in Massachusetts,
but the reference to said Business Corporation Law is not intended to give
the
Trust, the Trustees, the Shareholders or any other person any right, power,
authority or responsibility available only to or in connection with an entity
organized in corporate form. The Trust shall be of the type referred to in
Section 1 of Chapter 182 of the Massachusetts General Laws and 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.
IN
WITNESS WHEREOF, the undersigned
have 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.
/s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇_______
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇______
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/
▇▇▇▇▇
▇▇▇▇▇▇▇__________
/s/ ▇▇▇▇▇▇ ▇.▇. Vlak_________
▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇.▇. ▇▇▇▇
/s/
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇_______
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇________
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/
▇▇▇▇
Wisher___________
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇_______
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SCHEDULE
A
▇▇▇▇▇▇
▇▇▇▇ Total Return Bond Fund
▇▇▇▇▇▇
▇▇▇▇ Global High Income Fund
▇▇▇▇▇▇
▇▇▇▇ International Equity Fund
▇▇▇▇▇▇
▇▇▇▇ International Equity Fund II
▇▇▇▇▇▇
▇▇▇▇ U.S. Microcap Fund
▇▇▇▇▇▇
▇▇▇▇ U.S. Smallcap Fund
▇▇▇▇▇▇
▇▇▇▇ U.S. ▇▇▇▇▇▇ Fund
▇▇▇▇▇▇
▇▇▇▇ U.S. Multicap Fund