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EXHIBIT 77Q1(a)
INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT, dated this 1st day of January, 2002, by
and between MFS GOVERNMENT SECURITIES FUND, a Massachusetts business trust (the
"Trust"), and MASSACHUSETTS FINANCIAL SERVICES COMPANY, a Delaware corporation
(the "Adviser").
WITNESSETH:
WHEREAS, the Trust is engaged in business as an investment company
registered under the Investment Company Act of 1940; and
WHEREAS, the Adviser is willing to provide services to the Trust on
the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties hereto as herein set forth, the parties covenant and agree as
follows:
Article 1. Duties of the Adviser. (a) The Adviser shall provide the
Trust with such investment advice and supervision as the latter may from time to
time consider necessary for the proper supervision of its assets. The Adviser
shall act as investment adviser to the Trust and as such shall furnish
continuously an investment program and shall determine from time to time what
securities or other instruments shall be purchased, sold or exchanged and what
portion of the assets of the Trust shall be held uninvested, subject always to
the restrictions of the Trust's Amended and Restated Declaration of Trust, dated
January 1, 2002, and By-Laws, each as amended from time to time (respectively,
the "Declaration" and the "By-Laws"), to the provisions of the Investment
Company Act of 1940 and the Rules, Regulations and orders thereunder and to the
Trust's then-current Prospectus and Statement of Additional Information. The
Adviser also shall exercise voting rights, rights to consent to corporate
actions and any other rights pertaining to the Trust's portfolio securities in
accordance with the Adviser's policies and procedures as presented to the
Trustees of the Trust from time to time. Should the Trustees at any time,
however, make any definite determination as to the investment policy and notify
the Adviser thereof in writing, the Adviser shall be bound by such determination
for the period, if any, specified in such notice or until similarly notified
that such determination shall be revoked.
(b) The Adviser shall take, on behalf of the Trust, all actions which
it deems necessary to implement the investment policies determined as provided
above, and in particular to place all orders for the purchase or sale of
portfolio securities or other instruments for the Trust's account with brokers
or dealers selected by it, and to that end, the Adviser is authorized as the
agent of the Trust to give instructions to the Custodian of the Trust as to the
deliveries of securities or other instruments and payments of cash for the
account of the Trust. In connection with the selection of such brokers or
dealers and the placing of such orders, the Adviser is directed to seek for the
Trust the best overall price and execution available from responsible brokerage
firms, taking account of all factors it deems relevant, including by way of
illustration: price; the size of the transaction; the nature of the market for
the security; the amount of the commission; the timing and impact of the
transaction taking into account market prices and trends; the reputation,
experience and financial stability of the broker or dealer involved; and the
quality of services rendered by the broker or dealer in other transactions. In
fulfilling this requirement, the Adviser shall not be deemed to have acted
unlawfully or to have breached any duty, created by this Agreement or otherwise,
solely by reason of its having caused the Trust to pay a broker or dealer an
amount of commission for effecting a securities transaction in excess of the
amount of commission another broker or dealer would have charged for effecting
that transaction, if the Adviser determined in good faith that such amount of
commission was reasonable in relation to the value of the brokerage and research
services provided by such broker or dealer, viewed in terms of either that
particular transaction or the Adviser's overall responsibilities with respect to
the Trust and to other clients of the Adviser as to which the Adviser exercises
investment discretion. Subject to seeking the best price and execution as
described above, and in accordance with applicable rules and regulations, the
Adviser also is authorized to consider sales of shares of the Trust or of other
funds or accounts of the Adviser as a factor in the selection of brokers and
dealers.
(c) The Adviser may from time to time enter into sub-investment
advisory agreements with respect to the Trust with one or more investment
advisers with such terms and conditions as the Adviser may determine, provided
that such sub-investment advisory agreements have been approved in accordance
with applicable provisions of the Investment Company Act of 1940 and any rules,
regulations or orders of the Securities and Exchange Commission thereunder.
Subject to the provisions of Article 6, the Adviser shall not be liable for any
error of judgment or mistake of law by any sub-adviser or for any loss arising
out of any investment made by any sub-adviser or for any act or omission in the
execution and management of the Trust by any sub-adviser.
Article 2. Allocation of Charges and Expenses. (a) The Adviser shall
furnish at its own expense investment advisory and administrative services,
office space, equipment and clerical personnel necessary for servicing the
investments of the Trust and maintaining its organization, and investment
advisory facilities and executive and supervisory personnel for managing the
investments and effecting the portfolio transactions of the Trust. The Adviser
shall arrange, if desired by the Trust, for directors, officers and employees of
the Adviser to serve as Trustees, officers or agents of the Trust if duly
elected or appointed to such positions and subject to their individual consent
and to any limitations imposed by law.
(b) It is understood that the Trust will pay all of its own expenses incurred in
its operations and the offering of its shares, unless specifically provided
otherwise in this Agreement or except to the extent that the Adviser agrees in
a written instrument executed by the Adviser (specifically referring to this
Article 2(b)) to assume or otherwise pay for specified expenses of the Trust,
including, without limitation: compensation of Trustees "not affiliated" with
the Adviser; governmental fees; interest charges; taxes; membership dues in
the Investment Company Institute allocable to the Trust; fees and expenses of
independent auditors, of legal counsel, and of any transfer agent, registrar
or dividend disbursing agent of the Trust; expenses of repurchasing and
redeeming shares and servicing shareholder accounts; expenses of preparing,
printing and mailing stock certificates, shareholder reports, notices, proxy
statements and reports to governmental officers and commissions; brokerage and
other expenses connected with the execution, recording and settlement of
portfolio security transactions; insurance premiums; fees and expenses of the
custodian for all services to the Trust, including safekeeping of funds and
securities and maintaining required books and accounts; expenses of
calculating the net asset value of shares of the Trust; organizational and
start up costs; such non-recurring or extraordinary expenses as may arise,
including those relating to actions, suits or proceedings to which the Trust
is a party or otherwise may have an exposure, and the legal obligation which
the Trust may have to indemnify the Trust's Trustees and officers with respect
thereto; and expenses relating to the issuance, registration and qualification
of shares of the Trust and the preparation, printing and mailing of
prospectuses for such purposes (except to the extent that any Distribution
Agreement to which the Trust is a party provides that another party is to pay
some or all of such expenses).
(c) The payment or assumption by the Adviser of any expenses of the
Trust that the Adviser is not obligated by this Agreement or otherwise to pay or
assume shall not obligate the Adviser to pay or assume the same or any similar
expenses of the Trust on any subsequent occasion.
Article 3. Compensation of the Adviser. For the services to be rendered
and the facilities provided, the Trust shall pay to the Adviser an investment
advisory fee computed and paid monthly as set forth in Appendix A attached
hereto. If the Adviser shall serve for less than the whole of any period
specified in this Article 3, the compensation paid to the Adviser will be
prorated.
Article 4. Additional Services. Should the Trust have occasion to
request the Adviser or its affiliates to perform administrative or other
additional services not herein contemplated or to request the Adviser or its
affiliates to arrange for the services of others, the Adviser or its affiliates
will act for the Trust upon request to the best of its ability, with
compensation for the services to be agreed upon with respect to each such
occasion as it arises. No such agreement for additional services shall expand,
reduce or otherwise alter the obligations of the Adviser, or the compensation
that the Adviser is due, under this Agreement.
Article 5. Covenants of the Adviser. The Adviser agrees that it will
not deal with itself, or with the Trustees of the Trust or the Trust's
distributor, if any, as principals in making purchases or sales of securities or
other property for the account of the Trust, except as permitted by the
Investment Company Act of 1940 and any rules, regulations or orders of the
Securities and Exchange Commission thereunder, will not take a long or short
position in the shares of the Trust except as permitted by the applicable law,
and will comply with all other provisions of the Declaration and the By-Laws and
the then-current Prospectus and Statement of Additional Information of the Trust
relative to the Adviser and its directors and officers.
Article 6. Limitation of Liability of the Adviser. The Adviser shall
not be liable for any error of judgment or mistake of law or for any loss
arising out of any investment or for any act or omission in the execution and
management of the Trust, except for willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties and obligations hereunder. As
used in this Article 6, the term "Adviser" shall include directors, officers and
employees of the Adviser as well as that corporation itself.
Article 7. Activities of the Adviser. (a) The Trust acknowledges that
the services of the Adviser are not exclusive, the Adviser being free to render
investment advisory and/or other services to others. The Trust further
acknowledges that it is possible that, based on their investment objectives and
policies, certain funds or accounts managed by the Adviser or its affiliates may
at times take investment positions or engage in investment techniques which are
contrary to positions taken or techniques engaged in on behalf of the Trust.
Notwithstanding the foregoing, the Adviser will at all times endeavor to treat
all of its clients in a fair and equitable manner.
(b) The Trust acknowledges that whenever the Trust and one or more
other funds or accounts advised by the Adviser have available monies for
investment, investments suitable and appropriate for each shall be allocated in
a manner believed by the Adviser to be fair and equitable to each entity.
Similarly, opportunities to sell securities or other investments shall be
allocated in a manner believed by the Adviser to be fair and equitable to each
entity. The Trust acknowledges that in some instances this may adversely affect
the size of the position that may be acquired or disposed of for the Trust.
(c) It is understood that the Trustees, officers and shareholders of
the Trust are or may be or become interested in the Adviser, as directors,
officers, employees, or otherwise and that directors, officers and employees of
the Adviser are or may become similarly interested in the Trust, and that the
Adviser may be or become interested in the Trust as a shareholder or otherwise.
Article 8. MFS Name. The Trust acknowledges that the names
"Massachusetts Financial Services," "MFS" or any derivatives thereof or logos
associated with those names (collectively, the "MFS Marks") are the valuable
property of the Adviser and its affiliates. The Adviser grants the Trust a
non-exclusive and non-transferable right and sub-license to use the MFS Marks
only so long as the Adviser serves as investment adviser to the Trust. The Trust
agrees that if the Adviser for any reason no longer serves as investment adviser
to the Trust, and the Adviser so requests, the Trust promptly shall cease to use
the MFS Marks and promptly shall amend its registration statement to delete any
references to the MFS Marks. The Trust acknowledges that the Adviser may permit
other clients to use the MFS Marks in their names or other material. For
purposes of this Article, the Trust shall be deemed to have taken the required
action "promptly" if such action is taken within 90 days of the Adviser no
longer serving as the investment adviser to the Trust, or from the date of the
Adviser's request, as the case may be.
Article 9. Duration, Termination and Amendment of this Agreement. (a)
This Agreement shall become effective with respect to the Trust on the date
first written above. Thereafter, this Agreement will remain in effect with
respect to the Trust for a period of two years from the date first written
above, on which date it will terminate for the Trust unless its continuance is
"specifically approved at least annually" (i) by the vote of a majority of the
Trustees of the Trust who are not "interested persons" of the Trust or of the
Adviser at a meeting specifically called for the purpose of voting on such
approval, and (ii) by the Board of Trustees of the Trust, or by "vote of a
majority of the outstanding voting securities" of the Trust.
(b) This Agreement may be terminated as to the Trust at any time
without the payment of any penalty by the Trustees or by "vote of a majority of
the outstanding voting securities" of the Trust, or by the Adviser, in each case
on not more than sixty days' nor less than thirty days' written notice to the
other party. This Agreement shall automatically terminate in the event of its
"assignment".
(c) This Agreement may be amended with respect to the Trust only if
such amendment is in writing signed by or on behalf of the Trust and the Adviser
and is approved by "vote of a majority of the outstanding voting securities" of
the Trust (if such shareholder approval is required by the Investment Company
Act of 1940).
Article 10. Scope of Trust's Obligations. A copy of the Trust's
Declaration of Trust is on file with the Secretary of State of The Commonwealth
of Massachusetts. The Adviser acknowledges that the obligations of or arising
out of this Agreement are not binding upon any of the Trust's Trustees,
officers, employees, agents or shareholders individually, but are binding solely
upon the assets and property of the Trust.
Article 11. Definitions and Interpretations. The terms "specifically
approved at least annually," "vote of a majority of the outstanding voting
securities," "assignment," "affiliated person," and "interested person," when
used in this Agreement, shall have the respective meanings specified, and shall
be construed in a manner consistent with, the Investment Company Act of 1940 and
the rules and regulations promulgated thereunder. Any question of interpretation
of any term or provision of this Agreement having a counterpart in or otherwise
derived from a term or provision of the Investment Company Act of 1940, the
Investment Advisers Act of 1940, the Securities Act of 1933, or the Securities
Exchange Act of 1934 (collectively, the "Federal Securities Acts") shall be
resolved by reference to such term or provision of the Federal Securities Acts
and to interpretations thereof, if any, by United States federal courts or, in
the absence of any controlling decisions of any such court, by rules or
regulations of the Securities and Exchange Commission. Where the effect of a
requirement of the Federal Securities Acts reflected in any provision of this
Agreement is revised by rule or regulation of the Securities and Exchange
Commission, such provisions shall be deemed to incorporate the effect of such
rule or regulation.
Article 12. Record Keeping. The Adviser will maintain records in a form
acceptable to the Trust and in compliance with the rules and regulations of the
Securities and Exchange Commission, including but not limited to records
required to be maintained by Section 31(a) of the Investment Company Act of 1940
and the rules thereunder, which at all times will be the property of the Trust
and will be available for inspection and use by the Trust.
Article 13. Miscellaneous. (a) This Agreement contains the entire
understanding and agreement of the parties with respect to the subject matter
hereof.
(b) Headings in this Agreement are for ease of reference only and shall
not constitute a part of the Agreement.
(c) Should any portion of this Agreement for any reason be held void in
law or equity, the remainder of the Agreement shall be construed to the extent
possible as if such voided portion had never been contained herein.
(d) This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts, without giving effect to the choice of laws provisions thereof,
except that questions of interpretation shall be resolved in accordance with the
provisions of Article 11 above.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names and on their behalf by the undersigned
officers thereunto duly authorized, all as of the day and year first above
written. The undersigned officer of the Trust has executed this Agreement not
individually, but as an officer under the Declaration and the obligations of
this Agreement are not binding upon any of the Trustees, officers or
shareholders of the Trust, individually, but bind only the trust estate.
MFS GOVERNMENT SECURITIES FUND
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Assistant Secretary
MASSACHUSETTS FINANCIAL
SERVICES COMPANY
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
Appendix A
Compensation to the Adviser
The investment advisory fee payable by the Trust shall be computed and paid
monthly at the annual rate equal to 0.40% of the Trust's average daily net
assets for its then current fiscal year.
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EXHIBIT 77Q1(b)
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
MFS GOVERNMENT SECURITIES FUND
Dated as of January 1, 2002
TABLE OF CONTENTS
PAGE
ARTICLE I--Name and Definitions 1
Section 1.1 Name 1
Section 1.2 Definitions 1
ARTICLE II--Trustees 3
Section 2.1 Number of Trustees 3
Section 2.2 Term of Office of Trustees 3
Section 2.3 Resignation and Appointment of Trustees 4
Section 2.4 Vacancies 5
Section 2.5 Delegation of Power to Other Trustees 5
ARTICLE III--Powers of Trustees 5
Section 3.1 General 5
Section 3.2 Investments 6
Section 3.3 Legal Title 7
Section 3.4 Issuance and Repurchase of Securities 8
Section 3.5 Borrowing Money; Lending Trust Property 8
Section 3.6 Delegation 8
Section 3.7 Collection and Payment 8
Section 3.8 Expenses 8
Section 3.9 Manner of Acting; By-Laws 8
Section 3.10 Miscellaneous Powers 9
ARTICLE IV--Investment Adviser, Distributor, Custodian and Transfer Agent 10
Section 4.1 Investment Adviser 10
Section 4.2 Distributor 10
Section 4.3 Custodian 11
Section 4.4 Transfer Agent 11
Section 4.5 Parties to Contract 11
ARTICLE V--Limitations of Liability of Shareholders, Trustees and Others 12
Section 5.1 No Personal Liability of Shareholders 12
Section 5.2 Limitation of Liability of Trustees and Others 12
Section 5.3 Mandatory Indemnification 13
Section 5.4 No Bond Required 15
Section 5.5 No Duty of Investigation; Notice in Trust
Instruments 15
Section 5.6 Good Faith Action; Reliance on Experts 15
Section 5.7 Derivative Actions 16
ARTICLE VI--Shares of Beneficial Interest 17
Section 6.1 Beneficial Interest 17
Section 6.2 Rights of Shareholders 17
Section 6.3 Trust Only 17
Section 6.4 Issuance of Shares 17
Section 6.5 Register of Shares 18
Section 6.6 Transfer of Shares 18
Section 6.7 Notices 19
Section 6.8 Voting Powers 19
Section 6.9 Series of Shares 20
Section 6.10 Classes of Shares 22
Section 6.11 Series and Class Designations 22
ARTICLE VII--Redemptions 23
Section 7.1 Redemptions 23
Section 7.2 Suspension of Right of Redemption 23
Section 7.3 Redemption of Shares; Disclosure of Holding 24
ARTICLE VIII--Determination of Net Asset Value, Net Income and Distributions;
Reduction in Shares 24
ARTICLE IX--Duration; Termination of Trust; Amendment; Mergers, etc. 25
Section 9.1 Duration 25
Section 9.2 Termination of Trust 25
Section 9.3 Amendment Procedure 26
Section 9.4 Merger, Consolidation and Sale of Assets 27
Section 9.5 Incorporation, Reorganization 28
ARTICLE X--Miscellaneous 28
Section 10.1 Filing 29
Section 10.2 Governing Law 29
Section 10.3 Principal Office 29
Section 10.4 Counterparts 29
Section 10.5 Reliance by Third Parties 29
Section 10.6 Provisions in Conflict with Law or Regulations 29
Appendix A - Series
Appendix B - Classes
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AMENDED AND RESTATED
DECLARATION OF TRUST
OF
MFS GOVERNMENT SECURITIES FUND
Dated as of January 1, 2002
WHEREAS, MFS Government Securities Fund was established pursuant to a
Declaration of Trust dated November 13, 1981, as amended pursuant to an Amended
and Restated Declaration of Trust dated as of March 15, 1995, and as further
amended (the "Original Declaration"), for the investment and reinvestment of
funds contributed thereto;
WHEREAS, the Trustees desire that the beneficial interest in the Trust
assets continue to be divided into transferable Shares of Beneficial Interest
(without par value) issued in one or more series, as hereinafter provided;
WHEREAS, the Trustees wish to amend and restate the Original
Declaration in its entirety, and hereby certify that this Amended and Restated
Declaration of Trust has been amended and restated in accordance with the
provisions of the Original Declaration;
NOW THEREFORE, the Trustees hereby confirm that all money and property
contributed to the Trust hereunder shall be held and managed in trust for the
benefit of holders, from time to time, of the Shares of Beneficial Interest
(without par value) issued hereunder and subject to the provisions hereof, and
that the Original Declaration, including all appendices, is amended and restated
in its entirety as follows.
ARTICLE I
NAME AND DEFINITIONS
Section 1.1. Name. The name of the Trust is MFS Government Securities
Fund.
Section 1.2. Definitions. Wherever they are used herein, the
following terms have the following meanings:
(a) "By-Laws" means the By-laws referred to in Section 3.9 hereof,
as from time to time amended.
(b) "Commission" has the meaning given that term in the 1940 Act.
(c) "Declaration" means this Amended and Restated Declaration of Trust,
as amended from time to time. Reference in this Declaration of Trust to
"Declaration," "hereof," "herein" and "hereunder" shall be deemed to refer to
this Declaration rather than the article or section in which such words appear.
(d) "Distributor" means a party furnishing services to the Trust
pursuant to any contract described in Section 4.2 hereof.
(e) "Interested Person" has the meaning given that term in the
1940 Act.
(f) "Investment Adviser" means a party furnishing services to the Trust
pursuant to any contract described in Section 4.1 hereof.
(g) "Majority Shareholder Vote" has the same meaning as the phrase
"vote of a majority of the outstanding voting securities" as defined in the 1940
Act, except that such term may be used herein with respect to the Shares of the
Trust as a whole or the Shares of any particular series or class, as the context
may require, and except that each Share shall have one vote for each dollar of
net asset value as provided in Section 6.8 hereof.
(h) "1940 Act" means the Investment Company Act of 1940 and the Rules
and Regulations thereunder, as amended from time to time, and as such Act or the
Rules and Regulations thereunder may apply to the Trust or any series or class
pursuant to any exemptive order or similar relief or interpretation issued by
the Commission under such Act.
(i) "Person" means and includes individuals, corporations, limited
liability companies, partnerships, trusts, associations, joint ventures and
other entities, whether or not legal entities, and governments and agencies and
political subdivisions thereof, whether domestic or foreign.
(j) "Shareholder" means a record owner of outstanding Shares.
(k) "Shares" means the Shares of Beneficial Interest into which the
beneficial interest in the Trust shall be divided from time to time or, when
used in relation to any particular series or class of Shares established by the
Trustees pursuant to Section 6.11 hereof, transferable units into which such
series or class of Shares shall be divided from time to time in accordance with
the terms hereof. The term "Shares" includes fractions of Shares as well as
whole Shares.
(l) "Transfer Agent" means a party furnishing services to the Trust
pursuant to any transfer agency contract described in Section 4.4 hereof.
(m) "Trust" means the trust hereunder.
(n) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account of the
Trust or the Trustees, including, without limitation, any and all property
allocated or belonging to any series or class of Shares pursuant to Section 6.9
or Section 6.10 hereof.
(o) "Trustees" means the persons who have signed the Declaration, so
long as they shall continue in office in accordance with the terms hereof, and
all other persons who may from time to time be duly elected or appointed,
qualified and serving as Trustees in accordance with the provisions hereof, and
reference herein to a Trustee or the Trustees shall refer to such person or
persons in their capacity as trustees hereunder.
(p) "Trustees Emeritus" means any former Trustees who, from time to
time, are appointed by the Trustees to serve as trustees emeritus of the Trust
in accordance with the guidelines and conditions for such service adopted by the
Trustees from time to time, for so long as they serve in that capacity. Trustees
Emeritus, in their capacity as such, are not Trustees of the Trust for any
purpose, and shall not have any powers or obligations of Trustees hereunder.
ARTICLE II
TRUSTEES
Section 2.1. Number of Trustees. The number of Trustees shall be such
number as shall be fixed from time to time by a majority of the Trustees,
provided, however, that the number of Trustees shall in no event be less than
three nor more than 15.
Section 2.2. Term of Office of Trustees. A Trustee may be elected
either by the Shareholders of the Trust or, as provided in the Declaration and
subject to the limitations of the 1940 Act, by the Trustees. Subject to all
applicable provisions of the 1940 Act, a Trustee shall hold office during the
lifetime of this Trust and until its termination as hereinafter provided or, if
sooner, until his or her death or the election and qualification of his or her
successor; except that:
(a) any Trustee may resign his or her trust (without need for prior or
subsequent accounting) by an instrument in writing signed by that Trustee and
delivered to the Trust, which shall take effect upon such delivery or upon such
later date as is specified therein;
(b) any Trustee may be removed at any time, with or without cause, by
written instrument signed by at least three-quarters of the Trustees, specifying
the date when such removal shall become effective;
(c) any Trustee who has attained a mandatory retirement age established
pursuant to any written policy adopted from time to time by at least two-thirds
of the Trustees shall, automatically and without action of such Trustee or the
remaining Trustees, be deemed to have retired in accordance with the terms of
such policy, effective as of the date determined in accordance with such policy;
(d) any Trustee who has served to the end of his or her term of office
established pursuant to any written policy adopted from time to time by at least
two-thirds of the Trustees shall, automatically and without action of such
Trustee or the remaining Trustees, be deemed to have retired in accordance with
the terms of such policy, effective as of the date determined in accordance with
such policy; and
(e) a Trustee may be removed at any meeting of Shareholders by a vote
of Shares representing two-thirds of the voting power of the outstanding Shares
of the Trust.
Upon the resignation, retirement or removal of a Trustee, or his or her
otherwise ceasing to be a Trustee, that individual shall execute and deliver
such documents as the remaining Trustees shall require for the purpose of
conveying to the Trust or the remaining Trustees any Trust Property held in the
name of the resigning, retiring or removed Trustee. Upon the incapacity or death
of any Trustee, that Trustee's legal representative shall execute and deliver on
his or her behalf such documents as the remaining Trustees shall require as
provided in the preceding sentence.
Except to the extent expressly provided in a written agreement to which
the Trust is a party or in a written policy adopted by the Trustees, no
resigning or removed Trustee 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.
Section 2.3. Resignation and Appointment of Trustees. In case of the
declination, death, resignation, retirement or removal of any of the Trustees,
or in case a vacancy shall, by reason of an increase in number of Trustees, or
for any other reason, exist, a majority of the remaining Trustees may fill such
vacancy by appointing such other individual as they in their discretion shall
see fit. Any such appointment shall not become effective, however, until the
person appointed shall have accepted in writing such appointment and agreed in
writing to be bound by the terms of the Declaration. An appointment of a Trustee
may be made by the Trustees then in office in anticipation of a vacancy to occur
by reason of retirement, resignation, removal or increase in number of Trustees
effective at a later date, provided that said appointment shall become effective
only at or after the effective date of said retirement, resignation, removal or
increase in number of Trustees. The power of appointment is subject to all
applicable provisions of the 1940 Act.
Section 2.4. Vacancies. 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 the Declaration. Whenever a vacancy in the number of Trustees shall
occur, until such vacancy is filled as provided in Section 2.3, or while any
Trustee is incapacitated, the other Trustees in office, regardless of their
number, shall have all the powers granted to the Trustees and shall discharge
all the duties imposed upon the Trustees by the Declaration, and only such other
Trustees shall be counted for the purposes of the existence of a quorum or the
taking of any action to be taken by the Trustees. A written instrument
certifying the existence of such vacancy or incapacity signed by a majority of
the Trustees shall be conclusive evidence of the existence thereof.
Section 2.5. Delegation of Power to Other Trustees. Subject to
requirements imposed by the 1940 Act and other applicable law, any Trustee may,
by power of attorney, delegate his power for a period not exceeding six months
at any one time to any other Trustee or Trustees; provided that in no case shall
fewer than two Trustees personally exercise the powers granted to the Trustees
under the Declaration except as otherwise expressly provided herein.
ARTICLE III
POWERS OF TRUSTEES
Section 3.1. General. Subject to the provisions of the Declaration, the
Trustees shall have exclusive and absolute control over the Trust Property and
over the business of the Trust to the same extent as if the Trustees were the
sole owners of the Trust Property and business in their own right, but with such
powers of delegation as may be permitted by the Declaration. The Trustees shall
have power to conduct the business of the Trust and carry on its operations in
any and all of its branches and maintain offices both within and without The
Commonwealth of Massachusetts, in any and all states of the United States of
America, in the District of Columbia, and in any and all commonwealths,
territories, dependencies, colonies, possessions, agencies or instrumentalities
of the United States of America and of foreign governments, and to do all such
other things and execute all such instruments as the Trustees deem necessary,
proper or desirable in order to promote the interests of the Trust although such
things are not herein specifically mentioned. Any determination as to what is in
the interests of the Trust made by the Trustees in good faith shall be
conclusive. In construing the provisions of the Declaration, the presumption
shall be in favor of a grant of power to the Trustees.
The enumeration of any specific power herein shall not be construed as
limiting the aforesaid power or any other power of the Trustees hereunder. Such
powers of the Trustees may be exercised without order of or resort to any court.
Section 3.2. Investments. (a) The Trustees shall have the power:
(i) to conduct, operate and carry on the business of an investment
company;
(ii) to subscribe for, invest in, reinvest in, purchase or otherwise
acquire, own, hold, pledge, sell, assign, transfer, exchange, distribute, lend
or otherwise deal in or dispose of securities of every nature and kind, U.S. and
foreign currencies, any form of gold or other precious metal, commodity
contracts, any form of option contract, contracts for the future acquisition or
delivery of fixed income or other securities, derivative instruments of every
kind, "when-issued" or standby contracts, and all types of obligations or
financial instruments, including, without limitation, all types of bonds,
debentures, stocks, negotiable or non-negotiable instruments, obligations,
evidences of indebtedness, certificates of deposit or indebtedness, commercial
paper, repurchase agreements, bankers' acceptances, and other securities of any
kind, issued, created, guaranteed or sponsored by any and all Persons,
including, without limitation,
(A) states, territories and possessions of the United States and
the District of Columbia and any political subdivision, agency or
instrumentality of any such Person,
(B) the U.S. Government, any foreign government, or any political
subdivision or any agency or instrumentality of the U.S. Government or any
foreign government,
(C) any international instrumentality,
(D) any bank or savings institution, or
(E) any corporation or organization organized under the laws of the
United States or of any state, territory or possession thereof, or under any
foreign law;
to retain Trust assets in cash and from time to time to change the investments
in which the assets of the Trust are invested; and to exercise any and all
rights, powers and privileges of ownership or interest in respect of any and all
such investments of every kind and description, including, without limitation,
the right to consent and otherwise act with respect thereto, with power to
designate one or more Persons to exercise any of said rights, powers and
privileges in respect of any of said investments; and
(iii) to carry on any other business in connection with or incidental
to any of the foregoing powers, to do everything necessary, proper or desirable
for the accomplishment of any purpose or the attainment of any object or the
furtherance of any power hereinbefore set forth, and to do every other act or
thing incidental or appurtenant to or connected with the aforesaid purposes,
objects or powers.
(b) The Trustees shall not be limited to investing in securities or
obligations maturing before the possible termination of the Trust, nor shall the
Trustees be limited by any law limiting the investments which may be made by
fiduciaries.
(c) Notwithstanding any other provision of the Declaration to the
contrary, the Trustees shall have the power in their discretion without any
requirement of approval by Shareholders to either invest all or a portion of the
Trust Property of the Trust and each series of the Trust, or sell all or a
portion of such Trust Property and invest the proceeds of such sales, in one or
more other investment companies to the extent not prohibited by the 1940 Act.
Section 3.3. Legal Title. Legal title to all Trust Property shall be
vested in the Trustees as joint tenants except that the Trustees shall have
power to cause legal title to any Trust Property to be held by or in the name of
one or more of the Trustees, or in the name of the Trust, or in the name of any
other Person or nominee, on such terms as the Trustees may determine. The right,
title and interest of the Trustees in the Trust Property shall vest
automatically in each person who may hereafter become a Trustee. Upon the
resignation, retirement, removal or death of a Trustee, such Trustee shall
automatically cease to have any right, title or interest in any of the Trust
Property, and the right, title and interest of such Trustee in the Trust
Property shall vest automatically in the remaining Trustees. Such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered.
Section 3.4. Issuance and Repurchase of Securities. The Trustees shall
have the power to issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of, transfer, and otherwise deal in Shares and,
subject to the provisions set forth in Articles VII, VIII and IX and Section 6.9
hereof, to apply to any such repurchase, redemption, retirement, cancellation or
acquisition of Shares any funds of the Trust or other Trust Property, whether
capital or surplus or otherwise.
Section 3.5. Borrowing Money; Lending Trust Property. The Trustees
shall have power to borrow money or otherwise obtain credit and to secure the
same by mortgaging, pledging or otherwise subjecting as security the Trust
Property, to endorse, guarantee, or undertake the performance of any obligation,
contract or engagement of any other Person and to lend Trust Property.
Section 3.6. Delegation. The Trustees shall have power to delegate from
time to time to such of their number or to officers, employees, any Investment
Adviser, Distributor, custodian, agent or independent contractor of the Trust
the doing of such things and the execution of such instruments either in the
name of the Trust or the names of the Trustees or otherwise as the Trustees may
deem appropriate or expedient.
Section 3.7. Collection and Payment. Subject to Section 6.9 hereof, the
Trustees shall have power to collect all property due to the Trust; to pay all
claims, including taxes, against the Trust Property; to prosecute, defend,
compromise or abandon any claims relating to the Trust Property; to foreclose
any security interest securing any obligations, by virtue of which any property
is owed to the Trust; and to enter into releases, agreements and other
instruments.
Section 3.8. Expenses. Subject to Section 6.9 hereof, the Trustees
shall have the power to incur and pay any expenses which in the opinion of the
Trustees are necessary or incidental to carry out any of the purposes of the
Declaration, and to pay reasonable compensation from the funds of the Trust to
themselves as Trustees. The Trustees shall fix the compensation of all officers,
employees, Trustees and Trustees Emeritus.
Section 3.9. Manner of Acting; By-Laws. Except as otherwise provided
herein, in the 1940 Act or in the By-Laws, any action to be taken by the
Trustees may be taken by a majority of the Trustees present at a meeting of
Trustees at which a quorum is present, including any meeting held by means of a
conference telephone circuit or similar communications equipment by means of
which all persons participating in the meeting can hear each other, or by
written consents of two-thirds of the Trustees. The Trustees may adopt By-Laws
not inconsistent with the Declaration to provide for the conduct of the business
of the Trust and may amend or repeal such By-Laws to the extent permitted
therein at any time.
Section 3.10. Miscellaneous Powers. Without limiting the foregoing,
the Trustees shall have the power to:
(a) employ or contract with such Persons as the Trustees may deem
desirable for the transaction of
the business of the Trust;
(b) enter into joint ventures, partnerships and any other
combinations or associations;
(c) elect and remove such officers and appoint and terminate such
agents or employees as they consider appropriate, in each case with or without
cause, and appoint and terminate any one or more committees which may exercise
some or all of the power and authority of the Trustees as the Trustees may
determine;
(d) purchase, and pay for 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 Shareholders, any administrator, Trustees,
Trustees Emeritus, officers, employees, agents, any Investment Adviser, any
Distributor, selected dealers or independent contractors of the Trust against
all claims arising by reason of holding any such position or by reason of any
action taken or omitted by any such Person in such capacity, whether or not
constituting negligence, or whether or not the Trust would have the power to
indemnify such Person against such liability;
(e) establish pension, profit-sharing, Share purchase, deferred
compensation, and other retirement, incentive and benefit plans for any
Trustees, officers, employees or agents of the Trust;
(f) to the extent permitted by law, indemnify any person with whom the
Trust has dealings, including any Investment Adviser, administrator, custodian,
Distributor, Transfer Agent, shareholder servicing agent and any dealer, to such
extent as the Trustees shall determine;
(g) guarantee indebtedness or contractual obligations of others;
(h) determine and change the fiscal year of the Trust or any
series thereof and the method by which
its accounts shall be kept; and
(i) adopt a seal for the Trust, provided that the absence of such seal
shall not impair the validity of any instrument executed on behalf of the Trust.
ARTICLE IV
INVESTMENT ADVISER, DISTRIBUTOR, CUSTODIAN AND TRANSFER AGENT
Section 4.1. Investment Adviser. Subject to applicable requirements of
the 1940 Act, the Trustees may in their discretion from time to time enter into
one or more investment advisory or management contracts whereby the other party
to each such contract shall undertake to furnish the Trust such management,
investment advisory, statistical and research facilities and services,
promotional activities, and such other facilities and services, if any, with
respect to one or more series of Shares, as the Trustees shall from time to time
consider desirable and all upon such terms and conditions as the Trustees may in
their discretion determine. Notwithstanding any provision of the Declaration,
the Trustees may delegate to the Investment Adviser authority (subject to such
general or specific instructions as the Trustees may from time to time adopt) to
effect purchases, sales, loans or exchanges of assets of the Trust or any series
thereof on behalf of the Trustees or may authorize any officer, employee or
Trustee to effect such purchases, sales, loans or exchanges pursuant to
recommendations of the Investment Adviser (and all without further action by the
Trustees). Any of such purchases, sales, loans or exchanges shall be deemed to
have been authorized by all the Trustees. Such services may be provided by one
or more Persons.
Section 4.2. Distributor. Subject to applicable requirements of the
1940 Act, the Trustees may in their discretion from time to time enter into one
or more exclusive or non-exclusive distribution contracts providing for the sale
of Shares of one or more series or classes whereby the Trust may either agree to
sell the Shares to the other party to any such contract or appoint any such
other party its sales agent for such Shares. In either case, any such contract
shall be on such terms and conditions as the Trustees may in their discretion
determine, provided that such terms and conditions are not inconsistent with the
provisions of the Declaration or the By-Laws; and such contract may also provide
for the repurchase or sale of Shares by such other party as principal or as
agent of the Trust and may provide that such other party may enter into selected
dealer agreements or agency agreements with securities dealers or other Persons
to further the purpose of the distribution or repurchase of the Shares. Such
services may be provided by one or more Persons.
Section 4.3. Custodian. The Trustees may in their discretion from time
to time enter into one or more contracts whereby the other party to each such
contract shall undertake to furnish such custody services to the Trust as the
Trustees shall from time to time consider desirable and all upon such terms and
conditions as the Trustees may in their discretion determine, provided that such
terms and conditions are not inconsistent with the provisions of the 1940 Act,
the Declaration or the By-Laws. The Trustees may authorize any custodian to
employ one or more sub-custodians from time to time to perform such of the
services of the custodian as the Trustees shall from time to time consider
desirable. Services described in this Section may be provided by one or more
Persons.
Section 4.4. Transfer Agent. The Trustees may in their discretion from
time to time enter into one or more transfer agency or sub-transfer agency and
shareholder servicing contracts whereby the other party to each such contract
shall undertake to furnish such transfer agency and/or shareholder services to
the Trust as the Trustees shall from time to time consider desirable and all
upon such terms and conditions as the Trustees may in their discretion
determine, provided that such terms and conditions are not inconsistent with the
provisions of the Declaration or the By-Laws. Such services may be provided by
one or more Persons.
Section 4.5. Parties to Contract. Any contract of the character
described in any Section of this Article IV may be entered into with any Person,
although one or more of the Trustees or officers of the Trust may be an officer,
partner, director, trustee, shareholder, or member of such other party to the
contract, and no such contract shall be invalidated or rendered voidable by
reason of the existence of any such relationship; nor shall any Person holding
such relationship be liable merely by reason of such relationship for any loss
or expense to the Trust under or by reason of any such contract or accountable
for any profit realized directly or indirectly therefrom, provided that the
contract when entered into was not inconsistent with the provisions of this
Article IV or the By-Laws. The same Person may be the other party to contracts
entered into pursuant to Sections 4.1, 4.2, 4.3 and 4.4 above, and any
individual may be financially interested or otherwise affiliated with Persons
who are parties to any or all of the contracts mentioned in this Section 4.5.
ARTICLE V
LIMITATIONS OF LIABILITY OF SHAREHOLDERS,
TRUSTEES AND OTHERS
Section 5.1. No Personal Liability of Shareholders. No Shareholder or
former Shareholder shall be subject to any personal liability whatsoever to any
Person in connection with Trust Property or the acts, obligations or affairs of
the Trust solely by reason of being or having been a Shareholder. The Trust
shall indemnify and hold each Shareholder and former Shareholder harmless from
and against all claims and liabilities to which such Shareholder may become
subject solely by reason of his or her being or having been a Shareholder (other
than taxes payable by virtue of owning Shares), and shall reimburse such
Shareholder for all legal and other expenses reasonably incurred by him in
connection with any such claim or liability. The rights accruing to a
Shareholder or former Shareholder under this Section 5.1 shall not exclude any
other right to which such Shareholder may be lawfully entitled, nor shall
anything herein contained restrict the right of the Trust to indemnify or
reimburse a Shareholder or former Shareholder in any appropriate situation even
though not specifically provided herein. The Trust shall, upon request by a
Shareholder or former Shareholder, assume the defense of any claim made against
such Shareholder for any act or obligation of the Trust and satisfy any judgment
thereon from the assets of the Trust. Notwithstanding any other provision of the
Declaration to the contrary, no Trust Property shall be used to indemnify or
reimburse any Shareholder or former Shareholder of any Shares of any series
other than Trust Property allocated or belonging to such series.
Section 5.2. Limitation of Liability of Trustees and Others. (a) No
Trustee, Trustee Emeritus, officer, employee or agent of the Trust shall be
subject to any liability whatsoever to any Person in connection with Trust
Property or the affairs of the Trust, and no Trustee or Trustee Emeritus shall
be responsible or liable in any event for any neglect or wrongdoing of any
officer, employee or agent of the Trust or for the act of omission of any other
Trustee or Trustee Emeritus. Notwithstanding anything to the contrary in this
Section 5.2(a) or otherwise, nothing in the Declaration shall protect any
Trustee, Trustee Emeritus, officer, employee or agent of the Trust against any
liability to the Trust or its Shareholders to which he, she or it 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,
her or its office or position with or on behalf of the Trust.
(b) All persons extending credit to, contracting with or having claim
against the Trust or any series or class shall look solely to the assets of the
Trust or to the assets of that series or class for payment under such credit,
contract or claim; and neither any Trustee or Trustee Emeritus, nor any of the
Trust's officers, employees or agents, whether past, present or future, shall be
personally liable therefor.
Section 5.3. Mandatory Indemnification. (a) Subject to the exceptions
and limitations contained in paragraph (b) below:
(i) every person who is or has been a Trustee, Trustee Emeritus or
officer of the Trust (hereinafter referred to as a "Covered Person") shall be
indemnified by the Trust against all liability and against all expenses
reasonably incurred or paid by him or her in connection with any claim, action,
suit or proceeding in which that individual becomes involved as a party or
otherwise by virtue of being or having been a Trustee, Trustee Emeritus or
officer and against amounts paid or incurred by that individual in the
settlement thereof;
(ii) the words "claim," "action," "suit" or "proceeding" shall apply to
all claims, actions, suits or proceedings (civil, criminal, administrative or
other, including appeals), actual or threatened; and the words "liability" and
"expenses" shall include, without limitation, attorneys' fees, costs, judgments,
amounts paid in settlement or compromise, fines, penalties and other
liabilities.
(b) No indemnification shall be provided hereunder to a Covered
Person:
(i) against any liability to the Trust or the Shareholders by reason of
a final adjudication by the court or other body before which the proceeding was
brought that the Covered Person engaged in willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of that
individual's office;
(ii) with respect to any matter as to which the Covered Person shall
have been finally adjudicated not to have acted in good faith in the reasonable
belief that that individual's action was in the best interest of the Trust; or
(iii) in the event of a settlement involving a payment by a Trustee,
Trustee Emeritus or officer or other disposition not involving a final
adjudication as provided in paragraph (b)(i) or (b)(ii) above resulting in a
payment by a Covered Person, unless there has been either a determination that
such Covered Person did not engage in willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of that
individual's office by the court or other body approving the settlement or other
disposition or by a reasonable determination, based upon a review of readily
available facts (as opposed to a full trial-type inquiry) that that individual
did not engage in such conduct:
(A) by vote of a majority of the Disinterested Trustees (as
defined below) acting on the matter (provided that a majority of the
Disinterested Trustees then in office act on the matter); or
(B) by written opinion of (i) the then-current legal counsel
to the Trustees who are not Interested Persons of the Trust or (ii) other legal
counsel chosen by a majority of the Disinterested Trustees (or if there are no
Disinterested Trustees with respect to the matter in question, by a majority of
the Trustees who are not Interested Persons of the Trust) and determined by them
in their reasonable judgment to be independent.
(c) The rights of indemnification herein provided may be insured
against by policies maintained by the Trust, shall be severable, shall not
affect any other rights to which any Covered Person may now or hereafter be
entitled, shall continue as to a person who has ceased to be a Covered Person
and shall inure to the benefit of the heirs, executors and administrators of
such person. Nothing contained herein shall limit the Trust from entering into
other insurance arrangements or affect any rights to indemnification to which
Trust personnel, including Covered Persons, may be entitled by contract or
otherwise under law.
(d) Expenses of preparation and presentation of a defense to any claim,
action, suit, or proceeding of the character described in paragraph (a) of this
Section 5.3 shall be advanced by the Trust prior to final disposition thereof
upon receipt of an undertaking by or on behalf of the Covered Person to repay
such amount if it is ultimately determined that the Covered Person is not
entitled to indemnification under this Section 5.3, provided that either:
(i) such undertaking is secured by a surety bond or some other
appropriate security or the Trust shall be insured against losses arising out of
any such advances; or
(ii) a majority of the Disinterested Trustees acting on the matter
(provided that a majority of the Disinterested Trustees then in office act on
the matter) or legal counsel meeting the requirement in Section 5.3(b)(iii)(B)
above in a written opinion, shall determine, based upon 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.
As used in this Section 5.3 a "Disinterested Trustee" is one (i) who is
not an "Interested Person" of the Trust (including anyone who has been exempted
from being an "Interested Person" by any rule, regulation or order of the
Commission), and (ii) 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 had been pending.
(e) With respect to any such determination or opinion referred to in
clause (b)(iii) above or clause (d)(ii) above, a rebuttable presumption shall be
afforded that the Covered Person has not engaged in willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of such Covered Person's office in accordance with pronouncements of the
Commission.
Section 5.4. No Bond Required. No Trustee, Trustee Emeritus or
officer shall be obligated to give any bond or other security for the
performance of any of his or her duties hereunder.
Section 5.5. No Duty of Investigation; Notice in Trust Instruments. No
purchaser, lender, shareholder servicing agent, Transfer Agent or other Person
dealing with the Trustees or any officer, employee or agent of the Trust shall
be bound to make any inquiry concerning the validity of any transaction
purporting to be made by the Trustees or by said officer, employee or agent or
be liable for the application of money or property paid, loaned, or delivered to
or on the order of the Trustees or of said officer, employee or agent. Every
obligation, contract, instrument, certificate, Share, other security of the
Trust or undertaking, and every other act or thing whatsoever executed in
connection with the Trust shall be conclusively presumed to have been executed
or done by the executors thereof only in their capacity as Trustees under the
Declaration or in their capacity as officers, employees or agents of the Trust.
Every written obligation, contract, instrument, certificate, Share, other
security of the Trust or undertaking made or issued by the Trustees or officers
shall recite that the same is executed or made by them not individually, but as
or on behalf of Trustees under the Declaration, and that the obligations of any
such instrument are not binding upon any of the Trustees, officers or
Shareholders individually, but bind only the Trust estate, and may contain any
further recital deemed appropriate, but the omission of such recital shall not
operate to bind any of the Trustees, officers or Shareholders individually. The
Trustees may maintain insurance for the protection of the Trust Property,
Shareholders, Trustees, Trustees Emeritus, officers, employees and agents in
such amount as the Trustees shall deem adequate to cover possible tort
liability, and such other insurance as the Trustees in their sole judgment shall
deem advisable.
Section 5.6. Good Faith Action; Reliance on Experts. The exercise by
the Trustees or the officers of the Trust of their powers and discretions
hereunder in good faith and with reasonable care under the circumstances then
prevailing shall be binding upon everyone interested. The Trustees or the
officers of the Trust shall not be liable for errors of judgment or mistakes of
fact or law. Each Trustee and officer or employee of the Trust shall, in the
performance of his or her duties, be under no liability and fully and completely
justified and protected with regard to any act or any failure to act resulting
from reliance in good faith upon the books of account or other records of the
Trust, upon advice of counsel, or upon reports made to the Trust by any of its
officers or employees or by the Investment Adviser, the Distributor, Transfer
Agent, custodian, any shareholder servicing agent, selected dealers,
accountants, appraisers or other experts or consultants selected with reasonable
care by the Trustees, officers or employees of the Trust, regardless of whether
such counsel or expert may also be a Trustee.
Section 5.7. Derivative Actions. No Shareholder shall have the right to
bring or maintain any court action, proceeding or claim on behalf of the Trust
or any series or class thereof 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 any series or class thereof would
otherwise result, or if a majority of the Board of Trustees, or a majority of
any committee established to consider the merits of such action, has a material
personal financial interest in the action at issue. A Trustee shall not be
deemed to have a personal financial interest in an action or otherwise be
disqualified from ruling on a Shareholder demand by virtue of the fact that such
Trustee receives remuneration from his or her service on the Board of Trustees
of the Trust or on the boards of one or more investment companies with the same
or an affiliated investment adviser or underwriter, or the amount of such
remuneration.
Such demand shall be mailed to the Secretary or Clerk 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 any series or class thereof, 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
any series or class thereof shall be subject to the right of the Shareholders
under Section 6.8 of the Declaration to vote on whether or not such court
action, proceeding or suit should or should not be brought or maintained.
ARTICLE VI
SHARES OF BENEFICIAL INTEREST
Section 6.1. Beneficial Interest. The interest of the beneficiaries
hereunder may be divided into transferable Shares of Beneficial Interest
(without par value), which may be divided into one or more series and classes as
provided in Sections 6.9 and 6.10 hereof. The number of Shares authorized
hereunder is unlimited. All Shares issued hereunder including, without
limitation, Shares issued in connection with a dividend in Shares or a split of
Shares, shall be fully paid and non-assessable.
Section 6.2. Rights of Shareholders. The ownership of the Trust
Property of every description and the right to conduct any business hereinbefore
described are vested exclusively in the Trustees, and the Shareholders shall
have no interest therein other than the beneficial interest conferred by their
Shares, and they shall have no right to call for any partition or division of
any property, profits, rights or interests of the Trust nor can they be called
upon to assume any losses of the Trust or suffer an assessment of any kind by
virtue of their ownership of Shares. The Shares shall be personal property
giving only the rights specifically set forth in the Declaration. The Shares
shall not entitle the holder to preference, preemptive, appraisal, conversion or
exchange rights, except as the Trustees may determine with respect to any series
or class of Shares. By becoming a Shareholder each Shareholder shall be held
expressly to have assented to and agreed to be bound by the provisions of the
Declaration.
Section 6.3. Trust Only. It is the intention of the Trustees to create
only the relationship of Trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention of the Trustees to create
a general partnership, limited partnership, joint stock association,
corporation, bailment or any form of legal relationship other than a trust.
Nothing in the Declaration shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
Section 6.4. Issuance of Shares. The Trustees, in their discretion may,
from time to time without vote of the Shareholders, issue Shares, in addition to
the then issued and outstanding Shares and Shares held in the treasury, to such
party or parties and for such amount and type of consideration, including cash
or property, at such time or times, and on such terms as the Trustees may deem
best, and may in such manner acquire other assets (including the acquisition of
assets subject to, and in connection with, the assumption of liabilities) and
businesses. In connection with any issuance of Shares, the Trustees may issue
fractional Shares. The Trustees may from time to time divide or combine the
Shares of any series or class into a greater or lesser number without thereby
changing their proportionate beneficial interests in Trust Property allocated or
belonging to such series or class. Contributions to the Trust may be accepted
for, and Shares shall be redeemed as, whole Shares and/or 1/1,000ths of a Share
or integral multiples thereof.
Section 6.5. Register of Shares. A register or registers shall be kept
at the principal office of the Trust or at an office of the Transfer Agent which
shall contain the names and addresses (which may be addresses for electronic
delivery) of the Shareholders and the number of Shares held by them respectively
and a record of all transfers thereof. Such register shall be conclusive as to
who are the holders of the Shares and who shall be entitled to receive dividends
or distributions or otherwise to exercise or enjoy the rights of Shareholders.
No Shareholder shall be entitled to receive payment of any dividend or
distribution, nor to have notice given to that Shareholder as provided herein or
in the By-Laws, until the Shareholder has given his or her address to the
Transfer Agent or such other officer or agent of the Trustees as shall keep the
said register for entry thereon. It is not contemplated that certificates will
be issued for the Shares; however, the Trustees, in their discretion, may
authorize the issuance of Share certificates and promulgate appropriate rules
and regulations as to their use.
Section 6.6. Transfer of Shares. Shares shall be transferable on the
records of the Trust only by the record holder thereof or by the record holder's
agent thereunto authorized in writing, upon delivery to the Trustees or, if
there is a Transfer Agent with respect to such Shares, the Transfer Agent of a
duly executed instrument of transfer together with any certificate or
certificates (if issued) for such Shares and such evidence of the genuineness of
each such execution and authorization and of other matters as may reasonably be
required. Upon such delivery the transfer shall be recorded on the register of
the Trust. Until such record is made, the Shareholder of record shall be deemed
to be the holder of such Shares for all purposes hereunder and neither the
Trustees nor any Transfer Agent or registrar nor any officer, employee or agent
of the Trust shall be affected by any notice of the proposed transfer.
Any Person becoming entitled to any Shares in consequence of the death,
bankruptcy, or incompetence of any Shareholder, or otherwise by operation of
law, shall be recorded on the register of Shares as the holder of such Shares
upon production of the proper evidence thereof to the Trustees or the Transfer
Agent; but until such record is made, the Shareholder of record shall be deemed
to be the holder of such Shares for all purposes hereunder and neither the
Trustees nor any Transfer Agent or registrar nor any officer or agent of the
Trust shall be affected by any notice of such death, bankruptcy or incompetence,
or other operation of law.
Section 6.7. Notices. Any and all notices to which any Shareholder may
be entitled and any and all communications shall be deemed duly served or given
(i) if mailed, postage prepaid, addressed to any Shareholder of record at the
Shareholder's last known address as recorded on the register of the Trust, (ii)
if sent by electronic transmission to the Shareholder of record at the
Shareholder's last known address for electronic delivery as recorded on the
register of the Trust, (iii) if mailed or sent by electronic delivery to one or
more members of the Shareholder's household in accordance with applicable law or
regulation, or (iv) if otherwise sent in accordance with applicable law or
regulation.
Section 6.8. Voting Powers. The Shareholders shall have power to vote
only (i) for the election of Trustees when that issue is submitted to
Shareholders, and for the removal of Trustees as provided in Section 2.2 hereof,
(ii) with respect to any investment advisory or management contract on which a
shareholder vote is required by the 1940 Act, (iii) with respect to termination
of the Trust or any series or class to the extent and as provided in Section 9.2
hereof, (iv) with respect to any amendment of the Declaration to the extent and
as provided in Section 9.3 hereof, (v) with respect to any merger, consolidation
or sale of assets to the extent and as provided in Section 9.4 hereof, (vi) to
the same extent as the stockholders of a Massachusetts business corporation as
to whether or not a court action, proceeding or claim should or should not be
brought or maintained derivatively or as a class action on behalf of the Trust
or the Shareholders, and (vii) with respect to such additional matters relating
to the Trust as may be required by the Declaration, the By-Laws or any
registration of the Trust with the Commission (or any successor agency) or any
other regulator having jurisdiction over the Trust, 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, on each matter on which such Shareholder is
entitled to vote and each fractional dollar amount shall be entitled to a
proportionate fractional vote, except that the Trustees may, in conjunction with
the establishment of any series or class of Shares (but subject to applicable
law), establish conditions under which the several series or classes shall have
separate or no voting rights. Shares held in the treasury of the Trust shall not
be voted.
Except when a larger vote is required by applicable law or by any
provision of the Declaration or the By-Laws, if any, Shares representing a
majority of the voting power of the Shares voted in person or by proxy shall
decide any questions and a plurality shall elect a Trustee, provided that where
any provision of law or of the Declaration requires that the holders of any
series or class shall vote as a series or class, then Shares representing a
majority of the voting power of the Shares of that series or class voted on the
matter shall decide that matter insofar as that series or class is concerned,
and provided further that abstentions and broker non-votes shall not be counted
as votes cast but shall be counted as being present for purposes of determining
the existence of a quorum.
Shares of all series shall be voted in the aggregate on any matter
submitted to a vote of the Shareholders of the Trust except as provided in
Section 6.9(g) hereof. There shall be no cumulative voting in the election of
Trustees. Until Shares are issued and during any period when no Shares are
outstanding, the Trustees may exercise all rights of Shareholders and may take
any action required by law, the Declaration or the By-Laws to be taken by
Shareholders. The By-Laws may include further provisions for Shareholder votes
and meetings and related matters.
Section 6.9. Series of Shares. Shares of the Trust may be divided into
series, the number and relative rights, privileges and preferences of which
shall be established and designated by the Trustees, in their discretion, in
accordance with the terms of this Section 6.9. The Trustees may from time to
time exercise their power to authorize the division of Shares into one or more
series by establishing and designating one or more series of Shares upon and
subject to the following provisions:
(a) All Shares shall be identical (subject to such variations between
classes of Shares as may be permitted in accordance with the terms of Section
6.10 hereof) except that there may be such variations between different series
as are approved by the Trustees and as are consistent with applicable law.
(b) The number of authorized Shares and the number of Shares of each
series that may be issued shall be unlimited. The Trustees may classify or
reclassify any Shares of any series, including outstanding Shares, unissued
Shares and Shares previously issued and reacquired, into one or more series that
may be established and designated from time to time. The Trustees may hold as
treasury shares (of the same or some other series), reissue for such
consideration and on such terms as they may determine, or cancel any Shares of
any series reacquired by the Trust at their discretion from time to time.
(c) All consideration received by the Trust for the issue or sale of
Shares of a particular series, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall
irrevocably belong to that series for all purposes, subject only to the rights
of creditors of such series, and shall be so recorded upon the books of account
of the 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 series, the Trustees shall allocate them 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. Each such allocation by the Trustees shall be conclusive and binding
upon the Shareholders of all series for all purposes. No holder of Shares of any
particular series shall have any claim on or right to any assets allocated or
belonging to any other series of Shares. No holder of Shares of any particular
series shall be entitled to participate in a derivative or class action on
behalf of any other series or the Shareholders of any other series.
(d) The assets belonging to each particular series shall be charged
with the liabilities of the Trust in respect of that series and all expenses,
costs, charges and reserves attributable to that series, and any general
liabilities, expenses, costs, charges or reserves of the Trust which are not
readily identifiable as belonging to any particular series shall be allocated
and charged by the Trustees to and among any one or more of the series
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. Each allocation
of liabilities, expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the holders of all series for all purposes. 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. Under no circumstances shall the assets allocated
or belonging to any particular series be charged with liabilities attributable
to any other series. All Persons who have extended credit which has been
allocated to a particular series, or who have a claim or contract which has been
allocated to any particular series, shall look only to the assets of that
particular series for payment of such credit, claim or contract.
(e) The power of the Trustees to invest and reinvest the Trust Property
allocated or belonging to any particular series shall be governed by Section 3.2
hereof unless otherwise provided in the instrument of the Trustees establishing
such series.
(f) Each Share of a series shall represent a beneficial interest in the
net assets allocated or belonging to such series only, and such interest shall
not extend to the assets of the Trust generally. Dividends and distributions on
Shares of a particular series may be paid with such frequency as the Trustees
may determine, which may be monthly or otherwise, pursuant to a standing
resolution or resolutions adopted only once or with such frequency as the
Trustees may determine, to the holders of Shares of that series only, from such
of the income and capital gains, accrued or realized, from the assets belonging
to that series, as the Trustees may determine, after providing for actual and
accrued liabilities belonging to that series. Subject to differences among
classes, 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 and value of Shares of that series held by such holders at the date and
time of record established for the payment of such dividends or distributions.
Shares of any particular series of the Trust may be redeemed solely out of Trust
Property allocated or belonging to that series. Upon liquidation or termination
of a series of the Trust, Shareholders of such series shall be entitled to
receive a pro rata share of the net assets of such series only.
(g) Notwithstanding any provision hereof to the contrary, on any matter
submitted to a vote of the Shareholders of the Trust, all Shares of all series
then entitled to vote shall be voted in the aggregate, except that (i) when
required by the 1940 Act to be voted by individual series or class, Shares shall
not be voted in the aggregate, and (ii) when the Trustees have determined that a
matter affects only the interests of Shareholders of particular series or
classes of Shares, only Shareholders of such series or classes of Shares, as
applicable, shall be entitled to vote thereon.
Section 6.10. Classes of Shares. The Trustees may, in their discretion,
authorize the division of Shares of the Trust (or any series of the Trust) into
one or more classes, the number and relative rights, privileges and preferences
of which shall be established and designated by the Trustees, in their
discretion, in accordance with the terms of the 1940 Act. The number of Shares
of each class that may be issued is unlimited, and the Trustees may classify or
reclassify any shares of any class, including outstanding Shares, into one or
more classes that may be established and designated from time to time. All
Shares of a class shall be identical with each other and with the Shares of each
other class of the Trust or the same series of the Trust (as applicable), except
for such variations between classes as may be approved by the Board of Trustees
and not prohibited by the 1940 Act.
Section 6.11 Series and Class Designations. The establishment and
designation of any series or class of Shares shall be effective (a) 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 such
series or class, (b) upon the vote of a majority of the Trustees as set forth in
an instrument executed by an officer of the Trust, or (c) at such other time as
the instrument referred to in the foregoing clause (a) or the vote referred to
in the foregoing clause (b) may provide. Subject to Section 9.2 hereof, the
Trustees may at any time by an instrument executed by a majority of their number
abolish any series or class and the establishment and designation thereof. Each
instrument referred to in this paragraph shall be an amendment to the
Declaration.
The series of Shares existing as of the date hereof are set forth in
Appendix A hereto.
The classes of Shares of each series existing as of the date hereof are
set forth in Appendix B hereto.
ARTICLE VII
REDEMPTIONS
Section 7.1. Redemptions. All Shares shall be redeemable based on a
redemption price determined in accordance with this Section 7.1 and Article VIII
of the Declaration. Redeemed Shares may be resold by the Trust. The Trust shall
redeem the Shares at the price determined as hereinafter set forth, upon
acceptance of the appropriately verified application of the record holder
thereof (or upon such other form of request as the Trustees may determine) at
such office or agency as may be designated from time to time for that purpose in
the Trust's then effective registration statement under the Securities Act of
1933 and the 1940 Act. The Trustees may from time to time specify additional
conditions, not inconsistent with the 1940 Act, in the Trust's registration
statement regarding the redemption of Shares. Shares shall be redeemed at the
net asset value thereof next determined after acceptance of such request, less
any applicable redemption fee or sales charge as permitted under applicable law.
Subject to Section 7.2 hereof, payment for said Shares shall be made to
the Shareholder in cash or in property at such time and in such manner not
inconsistent with the 1940 Act or other applicable law. Except as expressly
determined by the Trustees, Shareholders shall not have the right to have Shares
redeemed in-kind.
Section 7.2. Suspension of Right of Redemption. The Trust may declare a
suspension of the right of redemption or postpone the date of payment of the
redemption proceeds of any series or class as permitted under the 1940 Act. Such
suspension shall take effect at such time as the Trust shall specify, and
thereafter there shall be no right of redemption or payment of the redemption
proceeds until the Trust shall declare the suspension at an end. In the case of
a suspension of the right of redemption, a Shareholder may either withdraw the
Shareholder's request for redemption or receive payment based on the net asset
value existing after the termination of the suspension.
Section 7.3. Redemption of Shares; Disclosure of Holding. The Trustees
may, in their discretion, require the Trust to redeem Shares held by any
Shareholder for any reason under terms set by the Trustees, including, but not
limited to, (i) the determination of the Trustees that direct or indirect
ownership of Shares of any series has or may become concentrated in such
Shareholder to an extent that would disqualify that series as a regulated
investment company under the Internal Revenue Code of 1986, as amended (or any
successor statute thereto), (ii) the failure of a Shareholder to supply a tax
identification number if required to do so, (iii) the failure of a Shareholder
to pay when due for the purchase of Shares issued to that Shareholder, (iv) the
value of a Shareholder's Shares being less than a minimum amount established
from time to time by the Trustees, (v) failure of a Shareholder to meet or
maintain the qualifications for ownership of a particular class of Shares, or
(vi) the determination by the Trustees or pursuant to policies adopted by the
Trustees that ownership of Shares by a particular Shareholder is not in the best
interests of the remaining Shareholders of the Trust or applicable series or
class. The redemption shall be effected at the redemption price and in the
manner provided in Section 7.1 hereof.
The holders of Shares or other securities of the Trust shall upon
demand disclose to the Trustees in writing such information with respect to
direct and indirect ownership of Shares or other securities of the Trust as the
Trustees deem necessary to comply with the provisions of the Internal Revenue
Code of 1986, as amended (or any successor statute), or to comply with the
requirements of any other law or regulation, and such ownership of Shares may be
disclosed by the Trustees if so requested by such law or regulation.
ARTICLE VIII
DETERMINATION OF NET ASSET VALUE,
NET INCOME AND DISTRIBUTIONS; REDUCTION IN SHARES
The Trustees, in their absolute discretion, may prescribe and shall set
forth in the By-Laws or in a duly adopted vote of the Trustees such bases and
times for determining the per Share net asset value of the Shares or net income,
or the declaration and payment of dividends and distributions, as they may deem
necessary or desirable. With respect to any series that holds itself out as a
money market or stable value fund, the Trustees shall have the power to reduce
the number of outstanding Shares of the series by reducing the number of Shares
in the account of each Shareholder on a pro rata basis, so as to maintain the
net asset value per Share of such series at a constant dollar amount.
ARTICLE IX
DURATION; TERMINATION OF TRUST;
AMENDMENT; MERGERS, ETC.
Section 9.1. Duration. The Trust shall continue without limitation
of time but subject to the provisions of this Article IX.
Section 9.2. Termination of Trust. (a) The Trust may be terminated at
any time (i) by a Majority Shareholder Vote of the holders of its Shares, or
(ii) by the Trustees by written notice to the Shareholders. Any series of the
Trust, or any class of any series, may be terminated at any time (i) by a
Majority Shareholder Vote of the holders of Shares of that series or class, or
(ii) by the Trustees by written notice to the Shareholders of that series or
class. Upon the termination of the Trust or any series of the Trust:
(i) The Trust or series of the Trust 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
series of the Trust and all the powers of the Trustees under the Declaration
shall continue until the affairs of the Trust or series of the Trust shall have
been wound up, including the power to fulfill or discharge the contracts of the
Trust or series of the Trust, collect its assets, sell, convey, assign,
exchange, transfer or otherwise dispose of all or any part of the remaining
Trust Property or Trust Property of the series to one or more Persons at public
or private sale for consideration which may consist in whole or in part of cash,
securities or other property of any kind, discharge or pay its liabilities, and
to do all other acts appropriate to liquidate its business; and
(iii) After paying or adequately providing for 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 Trust Property of the series, in cash
or in kind or partly in cash and partly in kind, among the Shareholders of the
Trust or the series according to their respective rights.
The foregoing provisions shall also apply, with appropriate modifications as
determined by the Trustees, to the termination of any class.
(b) After termination of the Trust or series or class and distribution
to the Shareholders of the Trust or series or class as herein provided, a
majority of the Trustees shall execute and lodge among the records of the Trust
an instrument in writing setting forth the fact of such termination, and the
Trustees shall thereupon be discharged from all further liabilities and duties
hereunder with respect to the Trust or series or class, and the rights and
interests of all Shareholders of the Trust or series or class shall thereupon
cease.
Section 9.3. Amendment Procedure. (a) Except as specifically provided
herein, the Trustees may, without any Shareholder vote, amend or otherwise
supplement the Declaration by making an amendment, a Declaration of Trust
supplemental hereto or an amended and restated Declaration. Without limiting the
foregoing power reserved to the Trustees, the Trustees may, without any
Shareholder vote, amend the Declaration to designate or redesignate series or
classes, to change the name or principal office of the Trust, to supply any
omission, to cure, correct or supplement any ambiguous, defective or
inconsistent provision hereof, or if they deem it necessary or advisable, to
conform the Declaration to the requirements of applicable law, including the
1940 Act and the Internal Revenue Code of 1986, as amended, but the Trustees
shall not be liable for failing to do so. Shareholders shall have the right to
vote on (i) any amendment that would affect their right to vote granted in
Section 6.8; (ii) any amendment to Section 9.3(a) or (b); (iii) any amendment as
may be required by law, or by the Trust's registration statement, to be approved
by Shareholders; and (iv) any amendment submitted to them by the Trustees. Any
amendment on which Shareholders have the right to vote shall require a Majority
Shareholder Vote of the Shareholders of the Trust, or the written consent,
without a meeting, of the holders of Shares representing not less than a
majority of the voting power of the Shares of the Trust. Notwithstanding the
foregoing, if the Trustees shall determine that any amendment required or
permitted to be submitted to Shareholders would affect only the interest of
Shareholders of particular series or classes of Shares, then only Shareholders
of such series or classes, as applicable, shall be entitled to vote thereon, and
no vote of Shareholders of any other series or classes shall be required.
(b) Nothing contained in the Declaration shall permit the amendment of
the Declaration to impair the exemption from personal liability of the
Shareholders, former Shareholders, Trustees, Trustees Emeritus, officers,
employees and agents of the Trust or to permit assessments upon Shareholders or
former Shareholders. Notwithstanding anything else herein, any amendment to
Section 5.3 shall not limit the rights to indemnification or insurance provided
therein with respect to actions or omissions of persons entitled to
indemnification under such Section prior to such amendment.
(c) A certificate signed by a majority of the Trustees setting forth an
amendment and reciting that it was duly adopted by the Shareholders (if
applicable) or by the Trustees as aforesaid or a copy of the Declaration, as
amended, and executed by a majority of the Trustees, shall be conclusive
evidence of such amendment when lodged among the records of the Trust.
(d) Notwithstanding any other provision hereof, until such time as
Shares of a particular series or class are first issued the Declaration may be
terminated or amended in any respect as to that series or class, and as to any
series or class in which Shares are not outstanding, by the affirmative vote of
a majority of the Trustees or by an instrument signed by a majority of the
Trustees.
Section 9.4. Merger, Consolidation and Sale of Assets. Subject to
applicable law and except as otherwise provided in Section 9.5 hereof, the Trust
or any series or class 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 all or substantially
all of the Trust Property allocated or belonging to a particular series or class
of the Trust) including its good will, upon such terms and conditions and for
such consideration when and as authorized (a) at any meeting of Shareholders
called for such purpose by a Majority Shareholder Vote of all series of the
Trust voting as a single class if the entire Trust is merging, consolidating or
disposing of assets, by a Majority Shareholder Vote of the particular series if
the entire series is merging, consolidating or disposing of assets, or by a
Majority Shareholder Vote of a class if only that class is merging,
consolidating or disposing of assets, or (b) by the written consent, without a
meeting, of the holders of Shares representing a majority of the voting power of
the outstanding Shares of all series of the Trust voting as a single class, or
of the particular series or class as described above. Any such merger,
consolidation, sale, lease or exchange shall be deemed for all purposes to have
been accomplished under and pursuant to the statutes of The Commonwealth of
Massachusetts. Such transactions may be effected through share-for-share
exchanges, transfers or sales of assets, in-kind redemptions and purchases,
exchange offers, or any other method approved by the Trustees. Nothing contained
herein shall be construed as requiring approval of Shareholders for any
recapitalization or reclassification of any series or class, for any sale of
assets in the ordinary course of the business of the Trust, or for any
transaction, whether deemed a merger, consolidation, reorganization or exchange
of shares or otherwise, whereby the Trust issues shares of one or more series or
classes in connection with the acquisition of assets (including those subject to
liabilities) from any other investment company or similar entity.
Section 9.5. Incorporation, Reorganization. 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 (or series or class of a trust), unit investment trust,
partnership, limited liability company, association or other organization to
acquire all or a portion of the Trust Property (or all or a portion of the Trust
Property allocated or belonging to a particular series or class) or to carry on
any business in which the Trust shall directly or indirectly have any interest,
and to sell, convey and transfer such Trust Property to any such corporation,
trust (or series or class of a trust), partnership, limited liability company,
association or organization in exchange for the shares or securities thereof or
otherwise, and to lend money to, subscribe for the shares or securities of, and
enter into any contracts with any such corporation, trust, partnership,
association or organization in which the Trust holds or is about to acquire
shares or any other interest. The Trustees may also, without the vote or consent
of Shareholders, cause a merger or consolidation between the Trust or any
successor thereto and any such corporation, trust (or series or class of a
trust), partnership, association or other organization if and to the extent
permitted by law. The Trustees shall provide written notice to affected
Shareholders of each transaction pursuant to this Section 9.5. Such transactions
may be effected through share-for-share exchanges, transfers or sales of assets,
in-kind redemptions and purchases, exchange offers, or any other method approved
by the Trustees.
ARTICLE X
MISCELLANEOUS
Section 10.1. Filing. The Declaration and any subsequent amendment
hereto shall be filed in the office of the Secretary of The Commonwealth of
Massachusetts and in such other place or places as may be required under the
laws of The Commonwealth of Massachusetts and may also be filed or recorded in
such other places as the Trustees deem appropriate, provided that the failure to
so file shall not invalidate this instrument or any properly authorized
amendment hereto. Each amendment so filed shall be accompanied by a certificate
signed and acknowledged by an officer or Trustee stating that such action was
duly taken in a manner provided herein, and unless such amendment or such
certificate sets forth some other time for the effectiveness of such amendment,
such amendment shall be effective upon its filing. A restated Declaration,
integrating into a single instrument all of the provisions of the Declaration
which are then in effect and operative, may be executed from time to time by a
majority of the Trustees and shall, upon filing with the Secretary of The
Commonwealth of Massachusetts, be conclusive evidence of all amendments
contained therein and may thereafter be referred to in lieu of the original
Declaration and the various amendments thereto.
Section 10.2. Governing Law. The Declaration is executed by the
Trustees and delivered in The Commonwealth of Massachusetts and with reference
to the laws thereof, and the rights of all parties and the validity and
construction of every provision hereof shall be subject to and construed
according to the laws of said Commonwealth. The Trust shall be of the type
commonly called a Massachusetts business trust, and without limiting the
provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a trust, 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 action.
Section 10.3. Principal Office. The principal office of the Trust is
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇. The Trustees, without a vote of
Shareholders, may change the principal office of the Trust.
Section 10.4. Counterparts. The Declaration may be simultaneously
executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts, together, shall constitute one and the same
instrument, which shall be sufficiently evidenced by any such original
counterpart.
Section 10.5. Reliance by Third Parties. Any certificate executed by an
individual who, according to the records of the Trust, appears to be an officer
or Trustee hereunder, certifying to: (i) the number or identity of Trustees or
Shareholders, (ii) the due authorization of the execution of any instrument or
writing, (iii) the form of any vote passed at a meeting of Trustees or
Shareholders, (iv) the fact that the number of Trustees or Shareholders present
at any meeting or executing any written instrument satisfies the requirements of
the Declaration, (v) the form of any By-Laws adopted by or the identity of any
officers elected by the Trustees, or (vi) the existence of any fact or facts
which in any manner relates to the affairs of the Trust, shall be conclusive
evidence as to the matters so certified in favor of any Person dealing with the
Trustees and their successors.
Section 10.6. Provisions in Conflict with Law or Regulations.
(a) The provisions of the Declaration 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 or
other provisions of the Internal Revenue Code of 1986, as amended, or with other
applicable laws and regulations, the conflicting provision shall be deemed never
to have constituted a part of the Declaration; provided, however, that such
determination shall not affect any of the remaining provisions of the
Declaration or render invalid or improper any action taken or omitted prior to
such determination.
(b) If any provision of the Declaration shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of the
Declaration in any jurisdiction.
MFS Government Securities Fund
IN WITNESS WHEREOF, the undersigned have executed this instrument as of
the day and year first written above.
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, M.D.
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▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, M.D.
As Trustee and Not Individually As Trustee and Not Individually
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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THE HON. SIR J. ▇▇▇▇▇ ▇▇▇▇▇▇▇, KBE ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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The Hon. Sir J. ▇▇▇▇▇ ▇▇▇▇▇▇▇, KBE ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
As Trustee and Not Individually As Trustee and Not Individually
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▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇. ▇'▇▇▇▇▇
As Trustee and Not Individually As Trustee and Not Individually
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Appendix A
Establishment and
Designation of Series of Shares of
Beneficial Interest (without par value)
Shares of the Trust have not yet been divided into series.
Appendix B
Establishment and Designation
of Classes
Pursuant to Section 6.10 of the Declaration, the Trustees have divided
the Shares of each series of the Trust (or of the Trust itself, if Shares of the
Trust have not been divided into series) to create the classes of Shares, within
the meaning of Section 6.10, listed below.
1. The classes of Shares of MFS Government Securities Fund are
designated "Class A Shares," "Class
B Shares," "Class C Shares" and "Class I Shares."
2. Shares of each class are entitled to all the rights and preferences
accorded to Shares under the Declaration. The designation of classes hereby
shall not impair the power of the Trustees from time to time to designate
additional classes of shares.
3. For Shares of each class, the purchase price, the method of
determination of the net asset value, the price, the terms and manner of
redemption, any conversion feature, the relative dividend rights of holders
thereof, and any other rights, privileges, features or qualifications, shall be
established by the Trustees of the Trust in accordance with the Declaration and
shall be set forth in the current prospectus and statement of additional
information of the Trust or any series thereof relating to the applicable
series, as amended from time to time, contained in the Trust's registration
statement under the Securities Act of 1933, as amended.
4. Subject to the applicable provisions of the 1940 Act and the
Declaration, the Trustees may from time to time modify the preferences, voting
powers, rights and privileges of any of the classes designated hereby without
any action or consent of Shareholders.
5. A class of Shares of any series of the Trust may be terminated by
the Trustees at any time by written notice to the Shareholders of the class in
accordance with Article IX of the Declaration.
- 12 -
EXHIBIT 77Q1 (c)
MASTER
AMENDED AND RESTATED
BY-LAWS
OF
THE TRUSTS IDENTIFIED ON APPENDIX A HERETO
January 1, 2002
MASTER
AMENDED AND RESTATED
BY-LAWS
OF
THE TRUSTS IDENTIFIED ON APPENDIX A HERETO
ARTICLE I
DEFINITIONS
The terms "Commission", "Declaration", "Distributor", "Investment
Adviser", "Majority Shareholder Vote", "1940 Act", "Shareholder", "Shares",
"Transfer Agent", "Trust", "Trust Property" and "Trustees" have the respective
meanings given them in the Amended and Restated Declaration of Trust of the
Trusts identified on Appendix A hereto. References to a "Trust" mean each Trust
severally and not jointly. These By-Laws shall be subject to the Declaration for
all purposes.
ARTICLE II
OFFICES
SECTION 1. Principal Office. Until changed by the Trustees, the
principal office of the Trust in The Commonwealth of Massachusetts shall be in
the City of Boston, County of Suffolk.
SECTION 2. Other Offices. The Trust may have offices in such other
places without as well as within The Commonwealth of Massachusetts as the
Trustees may from time to time determine.
ARTICLE III
SHAREHOLDERS
SECTION 1. Meetings. Meetings of the Shareholders may be called at any
time by a majority of the Trustees. Meetings of the Shareholders for the purpose
of considering the removal of a person serving as Trustee shall be called by the
Trustees if they are requested in writing to do so by Shareholders holding in
the aggregate Shares representing not less than ten percent (10%) of the voting
power of the outstanding Shares of the Trust having voting rights. Any such
meeting shall be held within or without The Commonwealth of Massachusetts on
such day and at such time as the Trustees shall designate.
Section 2. Notice of MeetingS. Notice of all meetings of Shareholders,
stating the time, place and purposes of the meeting, shall be given by the
Trustees in accordance with the Declaration, mailed or sent at least (ten) 10
days and not more than ninety (90) days before the meeting. Only the business
stated in the notice of the meeting shall be considered at such meeting. Any
adjourned meeting may be held as adjourned without further notice, even if the
date of such adjourned meeting is more than 90 days after the notice of the
meeting was mailed or sent. Notwithstanding the foregoing, if either the
President or Clerk of the Trust, or in the absence or unavailability of the
President and the Clerk, any officer of the Trust, determines that as a result
of force majeure or an act of God or war, the date, time or place designated for
a meeting or adjourned meeting of Shareholders is not reasonably practicable or
available, such officer may, without further notice to Shareholders, designate
such other date, time or place for such meeting or adjourned meeting as such
officer shall, in his or her sole discretion, determine. No notice need be given
to any Shareholder who shall have failed to inform the Trust of his current
address or if a written waiver of notice, executed before or after the meeting
by the Shareholder or his attorney thereunto authorized, is filed with the
records of the meeting.
Section 3. Record Date for Meetings. For the purpose of determining the
Shareholders who are entitled to notice of and to vote at any meeting, or to
participate in any 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 thirty (30) days, as the Trustees may determine; or without closing
the transfer books the Trustees may fix a date not more than ninety (90) days
prior to the date of any meeting of Shareholders or distribution or other action
as a record date for the determination of the persons to be treated as
Shareholders of record for such purpose. The Trustees also may select the time
of day as of which the calculations for determining how many votes each
Shareholder is entitled to pursuant to the Declaration shall be performed.
Section 4. Proxies. At any meeting of Shareholders, any holder of
Shares entitled to vote thereat may vote by proxy, provided that no proxy shall
be voted at any meeting unless it shall have been placed on file with the Clerk,
or with such other officer or agent of the Trust as the Clerk may direct, for
verification prior to the time at which such vote shall be taken. Pursuant to a
vote of a majority of the Trustees, proxies may be solicited in the name of one
or more Trustees or one or more of the officers of the Trust. When any Share is
held jointly by several persons, any one of them may vote at any meeting in
person or by proxy in respect of such Share (and a proxy shall be valid if
executed by any one of them), but if more than one of them shall be present at
such meeting in person or by proxy, and such joint owners or their proxies so
present disagree as to any vote to be cast, such vote shall not be received in
respect of such Share. 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. The placing
of a Shareholder's name on a proxy pursuant to telephonic or electronically
transmitted instructions obtained pursuant to procedures reasonably designed to
verify that such instructions have been authorized by such Shareholder shall
constitute execution of such proxy by or on behalf of such Shareholder. If the
holder of any such Share is a minor or a person of unsound mind, and subject to
guardianship or to the legal control of any other person as regards the charge
or management of such Share, he may vote by his guardian or such other person
appointed or having such control, and such vote may be given in person or by
proxy. Any copy, facsimile telecommunication or other reliable reproduction of a
proxy may be substituted for or used in lieu of the original proxy for any and
all purposes for which the original proxy could be used, provided that such
copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original proxy or the portion thereof to be returned
by the Shareholder.
Section 5. QUORUM AND ADJOURNMENT. Except when a larger quorum is
required by any provision of law, Shares representing a majority of the voting
power of the outstanding Shares entitled to vote shall constitute a quorum at
any meeting of Shareholders, except that where any provision of law, the
Declaration or these By-laws requires that holders of any series or class shall
vote as a series or class, then Shares representing a majority (unless a larger
quorum is required as specified above) of the voting power of the aggregate
number of Shares of that series or class entitled to vote shall be necessary to
constitute a quorum for the transaction of business by that series or class. In
the absence of a quorum, Shareholders entitled to cast votes representing a
majority of the voting power of the outstanding Shares entitled to vote present
in person or by proxy, or, where any provision of law, the Declaration or these
By-laws requires that holders of any series or class shall vote as a series or
class, Shareholders entitled to cast votes representing a majority of the voting
power of the outstanding Shares of that series or class entitled to vote present
in person or by proxy, may adjourn the meeting from time to time until a quorum
shall be present. Only Shareholders of record shall be entitled to vote on any
matter.
Section 6. Inspection of Records. The records of the Trust shall be
open to inspection by Shareholders to the same extent as is permitted
shareholders of a Massachusetts business
corporation.
Section 7. Action without Meeting. Any action which may be taken by
Shareholders may be taken without a meeting if Shareholders holding Shares
representing a majority of the voting power of the Shares entitled to vote on
the matter (or such larger proportion thereof as shall be required by law, the
Declaration or these By-Laws for approval of such matter) consent to the action
in writing and the 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.
ARTICLE IV
TRUSTEES
Section 1. Meetings of the Trustees. The Trustees may in their
discretion provide for regular or stated meetings of the Trustees. Notice of
regular or stated meetings need not be given. Meetings of the Trustees other
than regular or stated meetings shall be held whenever called by the Chairman or
by any one of the Trustees at the time being in office. Notice of the time and
place of each meeting other than regular or stated meetings shall be given by
the Secretary or an Assistant Secretary, or the Clerk or an Assistant Clerk or
by the officer or Trustee calling the meeting and shall be mailed to each
Trustee at least two days before the meeting, or shall be telegraphed, cabled,
or wirelessed or sent by facsimile or other electronic means to each Trustee at
his usual or last known business or residence address, or personally delivered
to him at least one day before the meeting. Such notice may, however, be waived
by any Trustee. Notice of a meeting need not be given to any Trustee if a
written waiver of notice, executed by him before or after the meeting, is filed
with the records of the meeting, or to any Trustee who attends the meeting
without protesting prior thereto or at its commencement the lack of notice to
him. A notice or waiver of notice need not specify the purpose of any meeting.
Except as provided by law the Trustees may meet by means of a telephone
conference circuit or similar communications equipment by means of which all
persons participating in the meeting can hear each other, which telephone
conference meeting shall be deemed to have been held at a place designated by
the Trustees at the meeting. Participation in a telephone conference meeting
shall constitute presence in person at such meeting.
Section 2. Quorum and Manner of Acting. A majority of the Trustees
shall be present at any regular or special meeting of the Trustees in order to
constitute a quorum for the transaction of business at such meeting and (except
as otherwise required by law, the Declaration or these By-Laws) the act of a
majority of the Trustees present at any such meeting, at which a quorum is
present, shall be the act of the Trustees. In the absence of a quorum, a
majority of the Trustees present may adjourn the meeting from time to time until
a quorum shall be present. Notice of an adjourned meeting need not be given.
ARTICLE V
COMMITTEES AND ADVISORY BOARD
Section 1. Executive and Other Committees. The Trustees by vote of a
majority of all the Trustees may elect from their own number an Executive
Committee to consist of not less than three (3) Trustees to hold office at the
pleasure of the Trustees which shall have the power to conduct the current and
ordinary business of the Trust while the Trustees are not in session, including
the purchase and sale of securities and the designation of securities to be
delivered upon redemption of Shares of the Trust, and such other powers of the
Trustees as the Trustees may, from time to time, delegate to the Executive
Committee except those powers which by law, the Declaration or these By-Laws
they are prohibited from delegating. The Trustees may also elect other
Committees from time to time, the number composing such Committees, the powers
conferred upon the same (subject to the same limitations as with respect to the
Executive Committee) and the term of membership on such Committees to be
determined by the Trustees. The Trustees may designate a Chairman of any such
Committee. In the absence of such designation a Committee may elect its own
Chairman.
Section 2. Meeting, Quorum and Manner of Acting. The Trustees may:
(i) provide for stated meetings of any Committee;
(ii) specify the manner of calling and notice required for special meetings
of any Committee;
(iii) specify the number of members of a Committee required to constitute
a quorum and the number of members of a Committee required to exercise
specified powers delegated to such Committee;
(iv) authorize the making of decisions to exercise
specified powers by written assent of the requisite number of members of a
Committee without a meeting; and
(v) authorize the members of a Committee to meet by means
of a telephone conference circuit or similar
communications equipment by means of which all
persons participating in the meeting can hear each
other.
Each Committee shall keep and maintain regular minutes of its meetings
and records of decisions taken without a meeting.
Section 3. Advisory Board. The Trustees may appoint an Advisory Board
to consist in the first instance of not less than three (3) members. Members of
such Advisory Board shall not be Trustees or officers and need not be
Shareholders. A member of such Advisory Board shall hold office for such period
as the Trustees may by resolution provide. Any member of such board may resign
therefrom by a written instrument signed by him which shall take effect upon
delivery to the Trust. The Advisory Board shall have no legal powers and shall
not perform the functions of Trustees in any manner, such Advisory Board being
intended merely to act in an advisory capacity. Such Advisory Board shall meet
at such times and upon such notice as the Trustees may by resolution provide.
ARTICLE VI
OFFICERS
Section 1. General Provisions. The officers of the Trust shall be a
Chairman, a President, a Treasurer and a Clerk, who shall be elected by the
Trustees. The Trustees may elect or appoint such other officers or agents as the
business of the Trust may require, including one or more Vice Presidents, a
Secretary and one or more Assistant Secretaries, one or more Assistant
Treasurers, and one or more Assistant Clerks. The Trustees may delegate to any
officer or Committee the power to appoint any subordinate officers or agents.
Section 2. Term of Office and Qualifications. Except as otherwise
provided by law, the Declaration or these By-Laws, the Chairman, the President,
the Treasurer and the Clerk shall hold office until his resignation has been
accepted by the Trustees or until his respective successor shall have been duly
elected and qualified, or in each case until he sooner dies, resigns, is removed
or becomes disqualified. All other officers shall hold office at the pleasure of
the Trustees. Any two or more offices may be held by the same person. Any
officer may be, but none need be, a Trustee or Shareholder.
Section 3. Removal AND RESIGNATION. The Trustees, at any regular or
special meeting of the Trustees, may remove any officer with or without cause by
a vote of a majority of the Trustees. Any officer or agent appointed by any
officer or Committee may be removed with or without cause by such appointing
officer or Committee. Any officer may resign at any time by written instrument
signed by him and delivered to the Trust. 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 officer
resigning and no officer removed shall have any right to any compensation for
any period following his resignation or removal, or any right to damages on
account of such removal.
Section 4. Powers and Duties of the Chairman. The Chairman may call
meetings of the Trustees and of any Committee thereof when he deems it necessary
and shall preside at all meetings of the Shareholders. Subject to the control of
the Trustees and any Committees of the Trustees, the Chairman shall at all times
exercise a general supervision and direction over the affairs of the Trust. The
Chairman shall have the power to employ attorneys and counsel for the Trust and
to employ such subordinate officers, agents, clerks and employees as he may find
necessary to transact the business of the Trust. The Chairman shall also have
the power to grant, issue, execute or sign such powers of attorney, proxies or
other documents as may be deemed advisable or necessary in furtherance of the
interests of the Trust. The Chairman shall have such other powers and duties as,
from time to time, may be conferred upon or assigned to him by the Trustees. The
Chairman shall be the chief executive officer of the Trust.
Section 5. Powers and Duties of the President. In the absence or
disability of the Chairman, the President shall perform all the duties and may
exercise any of the powers of the Chairman, subject to the control of the
Trustees. The President shall perform such other duties as may be assigned to
him from time to time by the Trustees or the Chairman.
Section 6. Powers and Duties of Vice Presidents. In the absence or
disability of the President, the Vice President or, if there be more than one
Vice President, any Vice President designated by the Trustees shall perform all
the duties and may exercise any of the powers of the President, subject to the
control of the Trustees. Each Vice President shall perform such other duties as
may be assigned to him from time to time by the Trustees or the President.
Section 7. Powers and Duties of the TreasureR. The Treasurer shall be
the principal financial and accounting officer of the Trust. The Treasurer shall
deliver all funds of the Trust which may come into his hands to such custodian
as the Trustees may employ. The Treasurer shall render a statement of condition
of the finances of the Trust to the Trustees as often as they shall require the
same and shall in general perform all the duties incident to the office of
Treasurer and such other duties as from time to time may be assigned to him by
the Trustees. The Treasurer shall give a bond for the faithful discharge of his
duties, if required to do so by the Trustees, in such sum and with such surety
or sureties as the Trustees shall require.
Section 8. Powers and Duties of the Clerk. The Clerk shall keep the
minutes of all meetings of the Shareholders in proper books provided for that
purpose; he shall have custody of the seal of the Trust; he shall have charge of
the Share transfer books, lists and records unless the same are in the charge of
the Transfer Agent. He or the Secretary, if any, shall attend to the giving and
serving of all notices by the Trust in accordance with the provisions of these
By-Laws and as required by law; and subject to these By-Laws, he shall in
general perform all duties incident to the office of Clerk and such other duties
as from time to time may be assigned to him by the Trustees.
Section 9. Powers and Duties of The Secretary. The Secretary, if any,
shall keep the minutes of all meetings of the Trustees. He shall perform such
other duties and have such other powers in addition to those specified in these
By-Laws as the Trustees shall from time to time designate. If there be no
Secretary or Assistant Secretary, the Clerk shall perform the duties of
Secretary.
Section 10. Powers and Duties of Assistant Treasurers. In the absence
or disability of the Treasurer, any Assistant Treasurer designated by the
Trustees shall perform all the duties, and may exercise any of the powers, of
the Treasurer. Each Assistant Treasurer shall perform such other duties as from
time to time may be assigned to him by the Trustees. Each Assistant Treasurer
shall give a bond for the faithful discharge of his duties, if required to do so
by the Trustees, in such sum and with such surety or sureties as the Trustees
shall require.
Section 11. Powers and Duties of Assistant Clerks. In the absence or
disability of the Clerk, any Assistant Clerk designated by the Trustees shall
perform all the duties, and may exercise any of the powers, of the Clerk. The
Assistant Clerks shall perform such other duties as from time to time may be
assigned to them by the Trustees.
Section 12. Powers and Duties of Assistant Secretaries. In the absence
or disability of the Secretary, any Assistant Secretary designated by the
Trustees shall perform all of the duties, and may exercise any of the powers, of
the Secretary. The Assistant Secretaries shall perform such other duties as from
time to time may be assigned to them by the Trustees.
Section 13. Compensation of Officers and Trustees and Members of the
Advisory Board. Subject to any applicable law or provision of the Declaration,
the compensation of the officers and Trustees and members of the Advisory Board
shall be fixed from time to time by the Trustees or, in the case of officers, by
any Committee or officer upon whom such power may be conferred by the Trustees.
No officer shall be prevented from receiving such compensation as such officer
by reason of the fact that he is also a Trustee.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Trust shall be as specified on Appendix A
hereto, provided, however, that the Trustees may from time to time change the
fiscal year of the Trust or any series.
ARTICLE VIII
SEAL
The Trustees may adopt a seal which shall be in such form and shall
have such inscription thereon as the Trustees may from time to time prescribe.
ARTICLE IX
WAIVERS OF NOTICE
Whenever any notice is required to be given by law, the Declaration or
these By-Laws, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent thereto. A notice shall be deemed to have been telegraphed,
cabled or wirelessed or sent by facsimile or other electronic means for the
purposes of these By-Laws when it has been delivered to a representative of any
telegraph, cable or wireless company with instruction that it be telegraphed,
cabled or wirelessed or when a confirmation of such facsimile having been sent,
or a confirmation that such electronic means has sent the notice being
transmitted, is generated. Any notice shall be deemed to be given at the time
when the same shall be mailed, telegraphed, cabled or wirelessed or when sent by
facsimile or other electronic means.
ARTICLE X
SALE OF SHARES OF THE TRUST
The Trustees may from time to time issue and sell or cause to be issued
and sold Shares for cash or other property. The Shares, including additional
Shares which may have been repurchased by the Trust (herein sometimes referred
to as "treasury shares"), may not be sold at a price less than the net asset
value thereof (as defined in Article XI hereof) determined by or on behalf of
the Trustees next after the sale is made or at some later time after such sale.
No Shares need be offered to existing Shareholders before being offered
to others. No Shares shall be sold by the Trust (although Shares previously
contracted to be sold may be issued upon payment therefor) during any period
when the determination of net asset value is suspended. In connection with the
acquisition by merger or otherwise of all or substantially all the assets of an
investment company (whether a regulated or private investment company or a
personal holding company), the Trustees may issue or cause to be issued Shares
and accept in payment therefor such assets valued at not more than market value
thereof in lieu of cash, notwithstanding that the federal income tax basis to
the Trust of any assets so acquired may be less than the market value, provided
that such assets are of the character in which the Trustees are permitted to
invest the funds of the Trust.
ARTICLE XI
NET ASSET VALUE OF SHARES
The term "net asset value" per Share of any class or series of Shares
shall mean: (i) the value of all assets of that series or class; (ii) less total
liabilities of such series or class; (iii) divided by the number of Shares of
such series or class outstanding, in each case at the time of such
determination, all as determine by or under the direction of the Trustees. Such
value shall be determined on such days and at such time as the Trustees may
determine. Such determination shall be made with respect to securities for which
market quotations are readily available, at the market value of such securities;
and with respect to other securities and assets, at the fair value as determined
in good faith by or pursuant to the direction of the Trustees or a Committee
thereof, provided, however, that the Trustees, without shareholder approval, may
alter the method of appraising portfolio securities insofar as permitted under
the 1940 Act, including use of the amortized cost method. The Trustees may
delegate any powers and duties under this Article XI with respect to appraisal
of assets and liabilities. At any time the Trustees may cause the value per
share last determined to be determined again in a similar manner and may fix the
time when such predetermined value shall become effective. Determinations of net
asset value made by the Trustees or their delegates in good faith shall be
binding on all parties concerned.
ARTICLE XII
DIVIDENDS AND DISTRIBUTIONS
Section 1. Limitations on Distributions. The total of distributions to
Shareholders of a particular series or class paid in respect of any one fiscal
year, subject to the exceptions noted below, shall, when and as declared by the
Trustees, be approximately equal to the sum of:
(i) the net income, exclusive of the profits or losses
realized upon the sale of securities or other property, of such series or class
for such fiscal year, determined in accordance with generally accepted
accounting principles (which, if the Trustees so determine, may be adjusted
for net amounts included as such accrued net income in the price of Shares of
such series or class issued or (repurchased), but if the net income of such
series or class exceeds the amount distributed by less than one cent per
share outstanding at the record date for the final dividend, the excess shall
be treated as distributable income of such series or class for the following
fiscal year; and
(ii) in the discretion of the Trustees, an additional
amount which shall not substantially exceed the
excess of profits over losses on sales of securities
or other property allocated or belonging to such
series or class for such fiscal year.
The decision of the Trustees as to what, in accordance with generally accepted
accounting principles, is income and what is principal shall be final, and
except as specifically provided herein the decision of the Trustees as to what
expenses and charges of the Trust shall be charged against principal and what
against income shall be final, all subject to any applicable provisions of the
1940 Act. For the purposes of the limitation imposed by this Section 1, Shares
issued pursuant to Section 2 of this Article XII shall be valued at the amount
of cash which the Shareholders would have received if they had elected to
receive cash in lieu of such Shares.
Inasmuch as the computation of net income and gains for federal income
tax purposes may vary from the computation thereof on the books of the Trust,
the above provisions shall be interpreted to give to the Trustees the power in
their discretion to distribute for any fiscal year as ordinary dividends and as
capital gains distributions, respectively, additional amounts sufficient to
enable the Trust to avoid or reduce liability for taxes. Any payment made to
Shareholders pursuant to clause (ii) of this Section 1 shall be accompanied by a
written statement showing the source or sources of such payment, and the basis
of computation thereof.
Section 2. Distributions Payable in Cash or Shares. The Trustees shall
have power, to the fullest extent permitted by the laws of The Commonwealth of
Massachusetts but subject to the limitation as to cash distributions imposed by
Section 1 of this Article XII, at any time or from time to time to declare and
cause to be paid distributions payable at the election of any Shareholder of any
series or class (whether exercised before or after the declaration of the
distribution) either in cash or in Shares of such series, provided that the sum
of:
(i) the cash distribution actually paid to any
Shareholder, and
(ii) the net asset value of the Shares which that
Shareholder elects to receive, in effect at such time
at or after the election as the Trustees may specify,
shall not exceed the full amount of cash to which
that Shareholder would be entitled if he elected to
receive only cash.
In the case of a distribution payable in cash or Shares at the election of a
Shareholder, the Trustees may prescribe whether a Shareholder, failing to
express his election before a given time shall be deemed to have elected to take
Shares rather than cash, or to take cash rather then Shares, or to take Shares
with cash adjustment of fractions.
The Trustees, in their sole discretion, may cause the Trust to require
that all distributions payable to a shareholder in amounts less than such amount
or amounts determined from time to time by the Trustees be reinvested in
additional shares of the Trust rather than paid in cash, unless a shareholder
who, after notification that his distributions will be reinvested in additional
shares in accordance with the preceding phrase, elects to receive such
distributions in cash. Where a shareholder has elected to receive distributions
in cash and the postal or other delivery service is unable to deliver checks to
the shareholder's address of record, the Trustees, in their sole discretion, may
cause the Trust to require that such Shareholder's distribution option be
converted to having all distributions reinvested in additional shares.
Section 3. Stock Dividends. Anything in these By-Laws to the contrary
notwithstanding, the Trustees may at any time declare and distribute pro rata
among the Shareholders of any series or class a "stock dividend" out of either
authorized but unissued Shares of such series or class or treasury Shares of
such series or class or both.
ARTICLE XIII
AMENDMENTS
These By-Laws, or any of them, may be altered, amended, repealed or
restated, or new By-Laws may be adopted, at any time by the Trustees. Action by
the Trustees with respect to the By-Laws shall be taken by an affirmative vote
of a majority of the Trustees.
Appendix A
FISCAL
TRUST YEAR END
MFS Series Trust I 08/31
MFS Series Trust II 11/30
MFS Series Trust III 01/31
MFS Series Trust IV 08/31
MFS Series Trust V 09/30
MFS Series Trust VI 10/31
MFS Series Trust VII 11/30
MFS Series Trust VIII 10/31
MFS Series Trust IX 04/30
MFS Series Trust X 05/31*
-
07/31+
MFS Series Trust ▇▇ ▇▇/▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇/▇▇
▇▇▇ Municipal Income Trust 10/31
MFS Multimarket Income Trust 10/31
MFS Government Markets Income Trust 11/30
MFS Intermediate Income Trust 10/31
MS Charter Income Trust 11/30
MFS Special Value Trust 10/30
MFS Municipal Series Trust 03/31
MFS Institutional Trust 06/30
MFS Variable Insurance Trust 12/31
The fiscal year end is 5/31 for the following series of MFS Series Trust X
International Investors Trust, MFS International Growth Fund, MFS Multi
Cap Grwoth Fund, MFS Fundamental Growth Fund, MFS Large Cap Growth Fund
U.S. Fund, MFS Gemini U.K. Fund, MFS Emerging Companies Fund, MFS Select
Growth Fund
The fiscal year end is 7/31 for the following series of MFS Series Trust X:
MFS International ADR Fund, MFS Global Conservative Equity Fund, MFS
International Core Equity Fund, MFS Global Health Sciences Fund, MFS
Government Mortgage Fund, MFS Strategic Value Fund, MFS Emerging Markets Debt
Fund, MFS Income Fund, MFS European Equity Fund, MFS High Yield Fund, MFS
New Endeavor Fund