Exhibit 1
MASSMUTUAL INSTITUTIONAL FUNDS
AGREEMENT AND DECLARATION OF TRUST
May 28, 1993, as amended
RECEIVED
JUN 02, 1993
SECRETARY OF STATE
CORPORATION DIVISION
MASSMUTUAL PENSION MANAGEMENT FUNDS
AGREEMENT AND DECLARATION OF TRUST
May 28, 1993
MASS MUTUAL PENSION MANAGEMENT FUNDS
Written Instrument of Trustees
June 14, 1993
The undersigned, being all of the Trustees of MassMutual Pension Management
Funds (the "Trust"), a Massachusetts Voluntary Association established by
execution of an Agreement and Declaration of Trust, dated as of May 28, 1993, as
amended from time to time (the "Declaration of Trust"):
Pursuant to Section 7 of Article IX of the Declaration of Trust, does
hereby (1) change the name of the Trust from "MassMutual Pension Management
Funds" to "MassMutual Institutional Funds", and (2) amend Section 1 of
Article I of the Declaration of Trust by substituting the words "MassMutual
Institutional Funds" for the words "MassMutual Pension Management Funds"
therein.
WITNESS the signature of the undersigned this 14th day of June, 1993.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as Trustee
and not individually
THE COMMONWEALTH OF MASSACHUSETTS
Springfield ss. June 14, 1993
Then personally appeared the above-named Trustee and acknowledged the
foregoing instrument to be his free act and deed, before me,
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Notary Public
(Notary's Seal)
▇▇▇▇ ▇. Moszynski
NOTARY PUBLIC
My Commission Expires April 15, 1999
TABLE OF CONTENTS
Page
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Recitals ........................................................ 1
ARTICLE I: NAME AND DEFINITIONS
Section 1 Name................................................... 1
Section 2 Definitions............................................ 1
ARTICLE II: PURPOSE 2
ARTICLE III: SHARES
Section 1 Division of Beneficial Interest........................ 3
Section 2 Ownership of Shares.................................... 3
Section 3 Investments in the Trust; Assets of the
Series................................................. 3
Section 4 No Preemptive or Appraisal Rights; Derivative
Actions................................................ 4
Section 5 Status of Shares and Limitation of Personal
Liability.............................................. 4
ARTICLE IV: THE TRUSTEES
Section 1 Election; Removal...................................... 5
Section 2 Effect of Death, Resignation, etc. of a
Trustee................................................ 5
Section 3 Powers................................................. 5
Section 4 Payment of Expenses by the Trust....................... 8
Section 5 Ownership of Assets of the Trust....................... 9
Section 6 Advisory, Management and Distribution.................. 9
ARTICLE V: SHAREHOLDERS' VOTING POWERS
AND MEETINGS
Section 1 Voting Powers.......................................... 10
Section 2 Meetings............................................... 11
Section 3 Quorum and Required Vote............................... 11
Section 4 Action by Written Consent.............................. 12
Section 5 Additional Provisions.................................. 12
ARTICLE VI: DISTRIBUTIONS, REDEMPTIONS AND
REPURCHASES, AND DETERMINATION
OF NET ASSET VALUE
Section 1 Distributions.......................................... 12
Section 2 Redemptions and Repurchases............................ 13
Section 3 Payment in Kind........................................ 14
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Page
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Section 4 Redemptions at the Option of the Trust................. 15
Section 5 Dividends, Distributions, Redemptions
and Repurchases........................................ 15
Section 6 Additional Provisions Relating to
Redemptions and Repurchases............................ 15
Section 7 Determination of Net Asset Value....................... 15
ARTICLE VII: COMPENSATION AND LIMITATION
OF LIABILITY OF TRUSTEES
Section 1 Compensation........................................... 17
Section 2 Limitation of Liability................................ 17
ARTICLE VIII: INDEMNIFICATION
Section 1 Trustees, Officers, etc................................ 18
Section 2 Compromise Payment..................................... 19
Section 3 Indemnification Not Exclusive; Definitions............. 20
Section 4 Shareholders........................................... 20
ARTICLE IX: MISCELLANEOUS
Section 1 Trustees, Shareholders, etc. Not
Personally Liable; Notice.............................. 20
Section 2 Trustee's Good Faith Action, Expert Advice,
No Bond or Surety...................................... 21
Section 3 Liability of Third Persons Dealing with
Trustees............................................... 21
Section 4 Duration and Termination of Trust...................... 21
Section 5 Filing of Copies, References, Headings................. 22
Section 6 Applicable Law......................................... 22
Section 7 Amendments............................................. 22
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MASSMUTUAL PENSION MANAGEMENT FUNDS
------------------------
AGREEMENT AND DECLARATION OF TRUST
--------------------------
AGREEMENT AND DECLARATION OF TRUST made at Springfield, Massachusetts, this
28th day of May, 1993 by the Trustee hereunder and by the holders of shares of
beneficial interest to be issued hereunder as hereinafter provided.
WITNESSETH that
WHEREAS, this Trust has been formed to carry on the business of an
investment company; and
WHEREAS, the Trustees have agreed to manage all property coming into their
hands as trustees of a Massachusetts business trust with transferable shares in
accordance with the provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash,
securities and other assets, which they may from time to time acquire in any
manner as Trustees hereunder, IN TRUST to manage and dispose of the same upon
the following terms and conditions for the pro rata benefit of the holders from
time to time of Shares in this Trust as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
Name
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Section 1. This Trust shall be known as "MassMutual Pension Management
---------
Funds" and the Trustees shall conduct the business of the Trust under that name
or any other name as they may from time to time determine.
Definitions
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Section 2. Whenever used herein, unless otherwise required by the context
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or specifically provided:
(a) The "Trust" refers to the Massachusetts business trust established
by this Agreement and Declaration of Trust, as amended from time to time;
(b) "Trustees" refers to the Trustee or Trustees of the Trust named
herein or elected in accordance with Article IV;
(c) "Shares" means the equal proportionate transferable units of
interest into which the beneficial interest in the Trust shall be divided
from time to time or, if more than one series of Shares is authorized by
the Trustees, the equal proportionate units into which each series of
Shares shall be divided from time to time or, if more than one class of
Shares of any series is authorized by the Trustees, the equal proportionate
units into which each class of such series of Shares shall be divided from
time to time;
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company Act of 1940 and
the Rules and Regulations thereunder, all as amended from time to time;
(f) The terms "Affiliated Person," "Assignment," "Commission,"
"Interested Person," "Principal Underwriter" and "Majority Shareholder
Vote" (the 67% or 50% requirement of the third sentence of Section 2(a)(42)
of the 1940 Act, whichever may be applicable) shall have the meanings given
them in the 1940 Act;
(g) "Declaration of Trust" shall mean this Agreement and Declaration
of Trust as amended or restated from time to time; and
(h) "Bylaws" shall mean the Bylaws of the Trust as amended from time
to time.
ARTICLE II
PURPOSE
The purpose of the Trust is to engage in the business of a management
investment company and to provide investors a managed investment primarily in
securities, commodities and debt and other financial instruments.
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ARTICLE III
SHARES
Division of Beneficial Interest
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Section 1. The Shares of the Trust shall be issued in one or more series
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as the Trustees may, without Shareholder approval, authorize. The Trustees may,
without Shareholder approval, divide the Shares of any series into two or more
classes, Shares of each such class having such preferences or special or
relative rights or privileges (including conversion rights, if any) as the
Trustees may determine and as are not inconsistent with any provision of this
Declaration of Trust. Each series shall be preferred over all other series in
respect of the assets allocated to that series. The beneficial interest in each
series shall at all times be divided into Shares, without par value unless the
Trustees specify otherwise, each of which shall, except as the Trustees may
otherwise authorize in the case of any series that is divided into two or more
classes, represent an equal proportionate interest in the series with each other
Share of the same series, none having priority or preference over another. The
number of Shares authorized shall be unlimited, and the Shares so authorized may
be represented in part by 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 the proportionate beneficial interests in the
series or class.
Ownership of Shares
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Section 2. The ownership of Shares shall be recorded on the books of the
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Trust or its transfer or similar agent. No certificates certifying the
ownership of Shares shall be issued except as the Trustees may otherwise
determine from time to time. The Trustees may make such rules as they consider
appropriate for the issuance of Share certificates, the transfer of Shares and
similar matters. The record books of the Trust as kept by the Trust or any
transfer or similar agent of the Trust, as the case may be, shall be conclusive
as to who are the Shareholders of each series and class and as to the number of
Shares of each series and class held from time to time by each Shareholder.
Investments in the Trust; Assets of the Series
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Section 3. The Trustees may accept investments in the Trust from such
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persons and on such terms and, subject to any requirements of law, for such
consideration, which may consist of cash or tangible or intangible property or a
combination thereof, as they from time to time authorize. When Shares have been
issued for such consideration, such Shares shall be fully paid and
nonassessable.
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All consideration received by the Trust for the issue or sale of Shares of
each series, together with all income, earnings, profits and proceeds thereof,
including any proceeds derived from the sale, exchange or liquidation thereof,
and any funds or payments derived from any reinvestment of such proceeds in
whatever form the same may be, shall irrevocably belong to the series of Shares
with respect to which the same were received by the Trust for all purposes,
subject only to the rights of creditors, and shall be so handled upon the books
of account of the Trust and are herein referred to as "assets of" such series.
No Preemptive or Appraisal Rights; Derivative Actions
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Section 4. Shareholders shall have no preemptive or other right to
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receive, purchase or subscribe for any additional Shares or other securities
issued by the Trust and shall have no appraisal rights with respect to Shares
owned by them. No action may be brought by a Shareholder on behalf of the Trust
or a particular series of the Trust unless a prior demand regarding such matter
has been made on the Trustees and the Shareholders of the Trust or such series.
Status of Shares and Limitation of Personal Liability
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Section 5. Shares shall be deemed to be personal property giving only the
---------
rights provided in this instrument. Every Shareholder by virtue of having
become a Shareholder shall be held to have expressly assented and agreed to the
terms hereof and to have become a party hereto. The death of a Shareholder
during the continuance of the Trust shall not operate to terminate the same nor
entitle the representative of any deceased Shareholder to an accounting or to
take any action in court or elsewhere against the Trust or the Trustees, but
only to the rights of said decedent under this Trust. Ownership of Shares shall
not entitle the Shareholder to any title in or to the whole or any part of the
Trust property or right to call for a partition or division of the same or for
an accounting, nor shall the ownership of Shares constitute the Shareholders
partners. Neither the Trust nor the Trustees, nor any officer, employee or
agent of the Trust, shall have any power to bind personally any Shareholder, nor
except as specifically provided herein to call upon any Shareholder for the
payment of any sum of money or assessment whatsoever other than such as the
Shareholder may at any time personally agree to pay.
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ARTICLE IV
THE TRUSTEES
Election; Removal
-----------------
Section 1. The number of Trustees shall be fixed by the Trustees, except
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that, subsequent to any sale of Shares pursuant to a public offering, there
shall be not less than three Trustees. Any vacancies occurring in the Board of
Trustees may be filled by the Trustees if, immediately after filling any such
vacancy, at least two-thirds of the Trustees then holding office shall have been
elected to such office by the Shareholders. In the event that at any time less
than a majority of the Trustees then holding office were elected to such office
by the Shareholders, the Trustees shall call a meeting of Shareholders for the
purpose of electing Trustees. Each Trustee elected by the Trustees shall serve
until the next meeting of Shareholders called for the purpose of electing
Trustees and until the election and qualification of his or her successor, or
until he or she sooner dies, resigns or is removed. Each Trustee elected by the
Shareholders shall serve until he or she dies, resigns or is removed. The
initial Trustees, each of whom shall serve until he or she dies, resigns or is
removed, shall be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and such other persons as the Trustee or
Trustees then in office shall, prior to any sale of Shares pursuant to a public
offering, appoint. By vote of a majority of the Trustees then in office, the
Trustees may remove a Trustee with or without cause. At any Shareholders'
meeting called for the purpose, a Trustee may be removed, with or without cause,
by vote of the holders of two-thirds of the votes represented by outstanding
Shares.
Effect of Death, Resignation, etc. of a Trustee
-----------------------------------------------
Section 2. The death, declination, resignation, retirement, removal or
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incapacity of the Trustees, or any one of them, shall not operate to annul the
Trust or to revoke any existing agency created pursuant to the terms of this
Declaration of Trust.
Powers
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Section 3. Subject to the provisions of this Declaration of Trust, the
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business of the Trust shall be managed by the Trustees, and they shall have all
powers necessary or convenient to carry out that responsibility. Without
limiting the foregoing, the Trustees may adopt Bylaws not inconsistent with this
Declaration of Trust providing for the conduct of the business of the Trust and
may amend and repeal them to the extent that such Bylaws do not reserve that
right to the Shareholders; they may fill vacancies in their number, including
vacancies resulting from increases in their number, and may elect and remove
such officers and appoint and terminate such agents as
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they consider appropriate; they may appoint from their own number, and
terminate, any one or more committees consisting of two or more Trustees,
including an executive committee which may, when the Trustees are not in
session, exercise some or all of the power and authority of the Trustees as the
Trustees may determine; they may appoint an advisory board, the members of which
shall not be Trustees and need not be Shareholders; they may employ one or more
custodians of the assets of the Trust and may authorize such custodians to
employ subcustodians and to deposit all or any part of such assets in a system
or systems for the central handling of securities; retain a transfer agent or a
Shareholder services agent, or both; provide for the distribution of Shares by
the Trust, through one or more principal underwriters or otherwise; set record
dates for the determination of Shareholders with respect to various matters; and
in general delegate such authority as they consider desirable to any officer of
the Trust, to any committee of the Trustees and to any agent or employee of the
Trust or to any such custodian or underwriter.
Without limiting the foregoing, the Trustees shall have power and
authority:
(a) To invest and reinvest in securities, options, futures contracts,
options on futures contracts and other property, and to hold cash
uninvested;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, write
options on and lease any or all of the assets of the Trust;
(c) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and
deliver proxies or powers of attorney to such person or persons as the
Trustees shall deem proper, granting to such person or persons such power
and discretion with relation to securities or property as the Trustees
shall deem proper;
(d) To exercise powers and rights of subscription or otherwise which
in any manner arise out of ownership of securities or other assets;
(e) To hold any security or property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form, or in the
name of the Trustees or of the Trust or in the name of a custodian,
subcustodian or other depository or a nominee or nominees or otherwise;
(f) Subject to the provisions of Article III, Section 3 of this
Declaration of Trust, to allocate assets, liabilities and expenses of the
Trust to a particular series of Shares or to apportion the same among two
or more series,
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provided that any liabilities or expenses incurred by a particular series
of Shares shall be payable solely out of the assets of that series; and to
the extent necessary or appropriate to give effect to the preferences and
special or relative rights and privileges of any classes of Shares, to
allocate assets, liabilities, income and expenses of a series to a
particular class of Shares of that series or to apportion the same among
two or more classes of Shares of that series;
(g) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer, any security of which
is or was held in the Trust; to consent to any contract, lease, mortgage,
purchase or sale of property by such corporation or issuer, and to pay
calls or subscriptions with respect to any security held in the Trust;
(h) To join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit
any security with, or transfer any security to, any such committee,
depositary or trustee, and to delegate to them such power and authority
with relation to any security (whether or not so deposited or transferred)
as the Trustees shall deem proper, and to agree to pay, and to pay, such
portion of the expenses and compensation of such committee, depositary or
trustee as the Trustees shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust on any matter in controversy, including but not limited
to claims for taxes;
(j) To enter into joint ventures, general or limited partnerships and
any other combinations or associations;
(k) To borrow funds, securities or other assets;
(l) To endorse or guarantee the payment of any notes or other
obligations of any person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof; and to mortgage and pledge
the Trust property or any part thereof to secure any of or all of such
obligations or obligations incurred pursuant to subparagraph (k) hereof;
(m) To purchase and pay for entirely out of Trust property such
insurance as they may deem necessary or appropriate for the conduct of the
business, including, without limitation, insurance policies insuring the
assets of the Trust and payment of distributions and principal on its
portfolio investments, and insurance policies insuring
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the Shareholders, Trustees, officers, employees, agents, investment
advisers or managers, principal underwriters or independent contractors of
the Trust individually against all claims and liabilities of every nature
arising by reason of holding, being or having held any such office or
position, or by reason of any action alleged to have been taken or omitted
by any such person as Shareholder, Trustee, officer, employee, agent,
investment adviser or manager, principal underwriter or independent
contractor, including any action taken or omitted that may be determined to
constitute negligence, whether or not the Trust would have the power to
indemnify such person against such liability; and
(n) To pay pensions for faithful service, as deemed appropriate by the
Trustees, and to adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of providing
such retirement and other benefits, for any or all of the Trustees,
officers, employees and agents of the Trust.
The Trustees shall not in any way be bound or limited by any present or
future law or custom in regard to investments by Trustees.
Except as otherwise provided herein or from time to time in the Bylaws, any
action to be taken by the Trustees may be taken by a majority of the Trustees
present at a meeting of the Trustees (a quorum being present), within or without
Massachusetts, including any meeting held by means of a conference telephone or
other communications equipment by means of which all persons participating in
the meeting can hear each other at the same time, and participation by such
means shall constitute presence in person at a meeting, or by written consents
of a majority of the Trustees then in office.
Payment of Expenses by the Trust
--------------------------------
Section 4. The Trustees are authorized to pay or to cause to be paid out
---------
of the principal or income of the Trust, or partly out of principal and partly
out of income, as they deem fair, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the Trust, or in connection
with the management thereof, including, but not limited to, the Trustees'
compensation and such expenses and charges for the services of the Trust's
officers, employees, investment adviser or manager, administrator, principal
underwriter, auditor, counsel, custodian, transfer agent, Shareholder services
agent and such other agents or independent contractors, and such other expenses
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and charges, as the Trustees may deem necessary or proper to incur, provided,
--------
however, that all expenses, fees, charges, taxes and liabilities incurred or
-------
arising in connection with a particular series of Shares, as determined by the
Trustees, shall be payable solely out of the assets of that series.
Ownership of Assets of the Trust
--------------------------------
Section 5. Title to all of the assets of each series of Shares and of the
---------
Trust shall at all times be considered as vested in the Trustees.
Advisory, Management and Distribution
-------------------------------------
Section 6. Subject to a favorable Majority Shareholder Vote, the Trustees
---------
may, at any time and from time to time, contract for exclusive or nonexclusive
advisory and/or management services with Massachusetts Mutual Life Insurance
Company and/or any other partnership, corporation, trust, association or other
organization (an "Adviser"), every such contract to comply with such
requirements and restrictions as may be set forth in the Bylaws; and any such
contract may contain such other terms interpretive of or in addition to said
requirements and restrictions as the Trustees may determine, including, without
limitation, authority to determine from time to time what investments shall be
purchased, held, sold or exchanged and what portion, if any, of the assets of
the Trust or any series of Shares shall be held uninvested, and to make changes
in the investments of the Trust or any series of Shares. The Trustees may also,
at any time and from time to time, contract with ▇▇▇▇▇▇▇▇▇▇▇ Management
Corporation and/or any other corporation, trust, association or other
organization, appointing it exclusive or nonexclusive distributor or principal
underwriter for the Shares, every such contract to comply with such requirements
and restrictions as may be set forth in the Bylaws; and any such contract may
contain such other terms interpretive of or in addition to said requirements and
restrictions as the Trustees may determine.
The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager,
adviser, principal underwriter or distributor or agent of or for any
corporation, trust, association or other organization, or of or for any
parent or affiliate of any organization, with which an advisory or
management contract, or principal underwriter's or distributor's contract,
or administrator, transfer, shareholder services or other agency contract
may have been or may hereafter be made, or that any organization, or any
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parent or affiliate thereof, is a Shareholder or has an interest in the
Trust, or that
(ii) any corporation, trust, association or other organization with
which an advisory or management contract or principal underwriter's or
distributor's contract, or administrator, transfer, Shareholder services or
other agency contract may have been or may hereafter be made also has an
advisory or management contract, or principal underwriter's or
distributor's contract, or administrator, transfer, shareholder services or
other agency contract with one or more other corporations, trusts,
associations or other organizations, or has other business or interests
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same or create any liability or accountability to the Trust or its Shareholders.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Voting Powers
-------------
Section 1. The Shareholders shall have power to vote only (i) for the
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election or removal of Trustees as provided in Article IV, Section 1, (ii) with
respect to any Adviser as provided in Article IV, Section 6, (iii) with respect
to any termination of this Trust to the extent and as provided in Article IX,
Section 4, (iv) with respect to any amendment of this Declaration of Trust to
the extent and as provided in Article IX, Section 7 and (v) with respect to such
additional matters relating to the Trust as may be required by law, this
Declaration of Trust, the Bylaws or any registration of the Trust with the
Securities and Exchange Commission (or any successor agency) or any state, or as
the Trustees may consider necessary or desirable.
Holders of Shares of each series or class shall be entitled to one vote for
each dollar (or a proportionate fractional vote for each fraction of a dollar)
of net asset value per Share of each series or class for each Share held as to
any matter on which such Shares are entitled to vote. Notwithstanding any other
provision of this Declaration of Trust, on any matter submitted to a vote of
Shareholders, all Shares of the Trust then entitled to vote shall be voted in
the aggregate as a single class without regard to series or class except: (1)
when required by the 1940 Act or when the Trustees shall have determined that
the matter affects one or more series or classes materially differently, Shares
shall be voted by individual series or class; and (2) when the Trustees have
determined that the matter affects
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only the interests of one or more series or classes, then only Shareholders of
such series or classes shall be entitled to vote thereon. There shall be no
cumulative voting in the election of Trustees.
Shares may be voted in person or by proxy. A proxy with respect to Shares
held in the name of two or more persons shall be valid if executed by any one of
them unless at or prior to exercise of the proxy the Trust receives a specific
written notice to the contrary from any one of them. A proxy purporting to be
executed by or on behalf of a Shareholder shall be deemed valid unless
challenged at or prior to its exercise and the burden of proving invalidity
shall rest on the challenger. At all meetings of Shareholders, unless
inspectors of election have been appointed, all questions relating to the
qualification of voters and the validity of proxies and the acceptance or
rejection of votes shall be decided by the chairman of the meeting. Unless
otherwise specified in the proxy, the proxy shall apply to all Shares of each
series of the Trust owned by the Shareholder.
Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required by law, this Declaration of Trust
or the Bylaws to be taken by Shareholders.
Meetings
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Section 2. No annual or regular meeting of Shareholders is required.
---------
Meetings of Shareholders of the Trust or of any series or class may be called by
the Trustees or such other person or persons as may be specified in the Bylaws
and held from time to time for the purpose of taking action upon any matter
requiring the vote or the authority of the Shareholders of the Trust or any
series or class as herein provided or upon any other matter deemed by the
Trustees to be necessary or desirable. Meetings of Shareholders of the Trust or
of any series or class shall be called by the Trustees or such other person or
persons upon written application as may be specified in the Bylaws. The
Shareholders shall be entitled to at least seven days' written notice of any
meeting of the Shareholders.
Quorum and Required Vote
------------------------
Section 3. Shares representing thirty percent (30%) of the votes entitled
---------
to vote shall be a quorum for the transaction of business at a Shareholders'
meeting, except that where any provision of law or of this Declaration of Trust
permits or requires that holders of any series or class shall vote as a series
or class, then Shares representing thirty percent (30%) of the votes of that
series or class entitled to vote shall be necessary to constitute a quorum for
the transaction of business
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by that series or class. Any lesser number, however, shall be sufficient for
adjournments. Any adjourned session or sessions may be held within a reasonable
time after the date set for the original meeting without the necessity of
further notice. Except when a larger vote is required by any provision of this
Declaration of Trust or the Bylaws, Shares representing a majority of the votes
voted shall decide any questions and a plurality shall elect a Trustee, provided
that where any provision of law or of this Declaration of Trust permits or
requires that the holders of any series or class shall vote as a series or
class, then Shares representing a majority of the votes of that series or class
voted on the matter (or a plurality with respect to the election of a Trustee)
shall decide that matter insofar as that series or class is concerned.
Action by Written Consent
-------------------------
Section 4. Any action taken by Shareholders may be taken without a meeting
---------
if Shares representing a majority of the votes entitled to vote on the matter
(or such larger proportion thereof as shall be required by any express provision
of this Declaration of Trust or the Bylaws or by law) consent to the action in
writing and such written consents are filed with the records of the meetings of
Shareholders. Such consent shall be treated for all purposes as a vote taken at
a meeting of Shareholders.
Additional Provisions
---------------------
Section 5. The Bylaws may include further provisions for Shareholders'
---------
votes and meetings and related matters.
ARTICLE VI
DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES,
AND DETERMINATION OF NET ASSET VALUE
Distributions
-------------
Section 1. The Trustees may, but need not, each year distribute to the
---------
Shareholders of each series or class such income and gains, accrued or realized,
as the Trustees may determine, after providing for actual and accrued expenses
and liabilities (including such reserves as the Trustees may establish)
determined in accordance with good accounting practices. The Trustees shall
have full discretion to determine which items shall be treated as income and
which items as capital and their determination shall be binding upon the
Shareholders. Distributions of each year's income of each series, if any be
made, may be made in one or more payments, which shall be in Shares, in cash or
otherwise and on a date or dates and as of a record date or dates determined by
the Trustees. At any time and from time to time in their discretion, the
Trustees may
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distribute to the Shareholders of any one or more series or classes as of a
record date or dates determined by the Trustees, in Shares, in cash or
otherwise, all or part of any gains realized on the sale or disposition of
property of the series or otherwise, or all or part of any other principal of
the Trust attributable to the series. In the case of any series not divided into
two or more classes of Shares, each distribution pursuant to this Section 1
shall be made ratably according to the number of Shares of the series held by
the several Shareholders on the applicable record date thereof, provided that no
distribution need be made on Shares purchased pursuant to orders received, or
for which payment is made, after such time or times as the Trustees may
determine. In the case of any series divided into two or more classes, each
distribution pursuant to this Section 1 may be made in whole or in such parts as
the Trustees may determine to the Shareholders of any one or more classes, and
the distribution to the Shareholders of any class shall be made ratably
according to the number of Shares of the class (but need not be made ratably
according to the number of Shares of the series, considered without regard to
class) held by the several Shareholders on the record date thereof, provided
that no distribution need be made on Shares purchased pursuant to orders
received, or for which payment is made, after such time or times as the Trustees
may determine. Any such distribution paid in Shares will be paid at the net
asset value thereof as determined in accordance with Section 7 of this Article
VI.
Redemptions and Repurchases
---------------------------
Section 2. Any holder of Shares of the Trust may by presentation of a
---------
written request, together with his or her certificates, if any, for such Shares,
in proper form for transfer, at the office of the Trust or at a principal office
of a transfer agent appointed by the Trust, redeem his or her Shares for the net
asset value thereof determined and computed in accordance with the provisions of
this Section 2 and the provisions of Section 7 of this Article VI.
Upon receipt by the Trust or its transfer agent of such written request for
redemption of Shares, such Shares shall be redeemed at the net asset value per
share of the appropriate series or class next determined after such Shares are
tendered in proper order for transfer to the Trust or determined as of such
other time fixed by the Trustees as may be permitted or required by the 1940
Act, provided that no such tender shall be required in the case of Shares for
which a certificate or certificates have not been issued, and in such case such
Shares shall be redeemed at the net asset value per share of the appropriate
series or class next determined after such request has been received in proper
form or determined at such other time fixed by the Trustees as may be permitted
or required by the ▇▇▇▇ ▇▇▇.
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The obligation of the Trust to redeem its Shares of each series or class as
set forth above in this Section 2 shall be subject to the conditions that during
any time of emergency, as hereinafter defined, such obligation may be suspended
by the Trust by or under authority of the Trustees for such period or periods
during such time of emergency as shall be determined by or under authority of
the Trustees. If there is such a suspension, any Shareholder may withdraw any
demand for redemption and any tender of Shares which has been received by the
Trust during any such period and any tender of Shares, the applicable net asset
value of which would but for such suspension be calculated as of a time during
such period. Upon such withdrawal, the Trust shall return to the Shareholder
the certificates therefor, if any. For the purposes of any such suspension,
"time of emergency" shall mean, either with respect to all Shares or any series
or class of Shares, any period during which:
a. the New York Stock Exchange is closed other than for customary
weekend and holiday closings; or
b. the Trustees or authorized officers of the Trust shall have
determined, in compliance with any applicable rules and regulations of the
Securities and Exchange Commission, either that trading on the New York
Stock Exchange is restricted, or that an emergency exists as a result of
which (i) disposal by the Trust of securities owned by it is not reasonably
practicable or (ii) it is not reasonably practicable for the Trust fairly
to determine the current value of its net assets; or
c. the suspension or postponement of such obligations is permitted by
order of the Securities and Exchange Commission.
The Trust may also purchase, repurchase or redeem Shares in accordance with
such other methods, upon such other terms and subject to such other conditions
as the Trustees may from time to time authorize at a price not exceeding the net
asset value of such Shares in effect when the purchase or repurchase or any
contract to purchase or repurchase is made.
Payment in Kind
---------------
Section 3. Subject to any generally applicable limitation imposed by the
---------
Trustees, any payment on redemption of Shares may, if authorized by the
Trustees, be made wholly or partly in kind, instead of in cash. Such payment in
kind shall be made by distributing securities or other property constituting, in
the opinion of the Trustees, a fair representation of the various types of
securities and other property then held by the series of Shares being redeemed
(but not necessarily involving a portion of
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each of the series' holdings) and taken at their value used in determining the
net asset value of the Shares in respect of which payment is made.
Redemptions at the Option of the Trust
--------------------------------------
Section 4. The Trust shall have the right at its option and at any time to
---------
redeem Shares of any Shareholder at the net asset value thereof as determined in
accordance with Section 7 of this Article VI: (i) if at such time such
Shareholder owns fewer Shares than, or Shares having an aggregate net asset
value of less than, an amount determined from time to time by the Trustees; or
(ii) to the extent that such Shareholder owns Shares of a particular series of
Shares equal to or in excess of a percentage of the outstanding Shares of that
series (determined without regard to class) determined from time to time by the
Trustees; or (iii) to the extent that such Shareholder owns Shares of the Trust
representing a percentage equal to or in excess of such percentage of the
aggregate number of outstanding Shares of the Trust or the aggregate net asset
value of the Trust determined from time to time by the Trustees.
Dividends, Distributions, Redemptions and Repurchases
-----------------------------------------------------
Section 5. No dividend or distribution (including, without limitation, any
---------
distribution paid upon termination of the Trust or of any series) with respect
to, nor any redemption or repurchase of, the Shares of any series (or of any
class) shall be effected by the Trust other than from the assets of such series
(or of the series of which such class is a part).
Additional Provisions Relating to Redemptions and Repurchases
-------------------------------------------------------------
Section 6. The completion of redemption of Shares shall constitute a full
---------
discharge of the Trust and the Trustees with respect to such Shares, and the
Trustees may require that any certificate or certificates issued by the Trust to
evidence the ownership of such Shares shall be surrendered to the Trustees for
cancellation or notation.
Determination of Net Asset Value
--------------------------------
Section 7. The term "net asset value" of the Shares of each series or
---------
class shall mean: (i) the value of all the assets of such series or class; (ii)
less the 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 each
determination. The "number of Shares of such series or class outstanding" for
the purposes of such computation shall be exclusive of any Shares of such series
or class to be redeemed and not then redeemed as to which the redemption price
has been
-15-
determined, but shall include Shares of such series or class presented for
repurchase and not then repurchased and Shares of such series or class to be
redeemed and not then redeemed as to which the redemption price has not been
determined and Shares of such series or class the sale of which has been
confirmed. Any fractions involved in the computation of net asset value per
share shall be adjusted to the nearer cent unless the Trustees shall determine
to adjust such fractions to a fraction of a cent.
The Trustees, or any officer or officers or agent of this Trust designated
for the purpose by the Trustees, shall determine the net asset value of the
Shares of each series or class, and the Trustees shall fix the times as of which
the net asset value of the Shares of each series or class shall be determined
and shall fix the periods during which any such net asset value shall be
effective as to sales, redemptions and repurchases of, and other transactions
in, the Shares of such series or class, except as such times and periods for any
such transaction may be fixed by other provisions of this Declaration of Trust
or by the Bylaws.
In valuing the portfolio investments of any series or class for
determination of net asset value per share of such series or class:
(a) Each investment for which market quotations are readily available
shall be valued at current market value determined by methods
specified by the Board of Trustees;
(b) Each other investment, including any investment within (a) for which
the specified price does not appear to represent a dependable
quotation for such investment as of the time of valuation, shall be
valued at a fair value as determined in good faith by the Trustees;
(c) Any cash on hand shall be valued at the face amount thereof;
(d) Any cash on deposit, accounts receivable, and cash dividends and
interest declared or accrued and not yet received, any prepaid
expenses, and any other current asset shall be valued at the face
amount thereof, unless the Trustees shall determine that any such item
is not worth its face amount, in which case such asset shall be valued
at a fair value determined in good faith by the Trustees; and
(e) Any other asset shall be valued at a fair value determined in good
faith by the Trustees.
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Notwithstanding the foregoing, short-term debt obligations, commercial paper and
repurchase agreements may be, but need not be, valued on the basis of quoted
yields for securities of comparable maturity, quality and type, or on the basis
of amortized cost.
Liabilities of any series or class for accounts payable for investments
purchased and for Shares tendered for redemption and not then redeemed as to
which the redemption price has been determined shall be stated at the amounts
payable therefor. In determining the net asset value of any series or class,
the person or persons making such determination on behalf of the Trust may
include in liabilities such reserves, estimated accrued expenses and
contingencies as such person or persons may in its, his or their best judgment
deem fair and reasonable under the circumstances. Any income dividends and
gains distributions payable by the Trust shall be deducted as of such time or
times on the record date therefor as the Trustees shall determine.
The manner of determining the net assets of any series or class or of
determining the net asset value of the Shares of any series or class may from
time to time be altered as necessary or desirable in the judgment of the
Trustees to conform to any other method prescribed or permitted by any
applicable law or regulation.
Determinations under this Section 7 made in good faith and in accordance
with the provisions of the 1940 Act shall be binding on all parties concerned.
ARTICLE VII
COMPENSATION AND LIMITATION
OF LIABILITY OF TRUSTEES
Compensation
------------
Section 1. The Trustees as such shall be entitled to reasonable
---------
compensation from the Trust; they may fix the amount of their compensation.
Nothing herein shall in any way prevent the employment of any Trustee for
advisory, management, legal, accounting, investment banking or other services
and payment for the same by the Trust.
Limitation of Liability
-----------------------
Section 2. The Trustees shall not be responsible or liable in any event
---------
for any neglect or wrongdoing of any officer, agent, employee, adviser or
principal underwriter of the Trust, nor shall any Trustee be responsible for the
act or omission of any other Trustee, but nothing herein contained shall protect
any Trustee against any liability to which he or she would otherwise
-17-
be subject by reason of wilful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his or her office.
Every note, bond, contract, instrument, certificate, writing, Share or
undertaking and every other act or thing whatsoever executed or done by or on
behalf of the Trust or the Trustees or any of them in connection with the Trust
shall be conclusively deemed to have been executed or done only in or with
respect to their or his or her capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
ARTICLE VIII
INDEMNIFICATION
Trustees, Officers, etc.
------------------------
Section 1. The Trust shall indemnify each person who is or has been a
---------
Trustee or officer (including persons who serve at the Trust's request as
directors, officers or trustees of another organization in which the Trust has
any interest as a shareholder, creditor or otherwise) (hereinafter referred to
as a "Covered Person") against all liabilities and expenses, including but not
limited to amounts paid in satisfaction of judgments, in compromise or as fines
and penalties, and counsel fees and expenses reasonably incurred by any Covered
Person in connection with the defense or disposition of any action, suit or
other proceeding, whether civil, criminal, administrative or investigative, and
any appeal therefrom, before any court or administrative or legislative body, in
which such Covered Person may be or may have been involved as a party or
otherwise or with which such person may be or may have been threatened, while in
office or thereafter, by reason of being or having been such a Covered Person,
except that no Covered Person shall be indemnified against any liability to the
Trust or its Shareholders to which such Covered Person would otherwise be
subject by reason of wilful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of such Covered Person's office.
Expenses, including counsel fees and expenses so incurred by any such
Covered Person (but excluding amounts paid in satisfaction of judgments, in
compromise or as fines or penalties), may be paid from time to time by the Trust
in advance of the final disposition of any such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Covered Person to repay
amounts so paid to the Trust if it is ultimately determined that indemnification
of such expenses is not authorized under this Article, provided that (a) such
-------- ----
Covered Person shall provide security for his undertaking, (b) the Trust
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shall be insured against losses arising by reason of such Covered Person's
failure to fulfill his undertaking or (c) a majority of the Trustees who are
disinterested persons and who are not Interested Persons (provided that a
majority of such Trustees then in office act on the matter), or independent
legal counsel in a written opinion, shall determine, based on a review of
readily available facts (but not a full trial-type inquiry), that there is
reason to believe such Covered Person ultimately will be entitled to
indemnification.
Compromise Payment
------------------
Section 2. As to any matter disposed of (whether by a compromise payment,
---------
pursuant to a consent decree or otherwise) without an adjudication in a decision
on the merits by a court, or by any other body before which the proceeding was
brought, that such Covered Person is liable to the Trust or its Shareholders by
reason of wilful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of such Covered Person's office,
indemnification shall be provided if (a) approved as in the best interest of the
Trust, after notice that it involves such indemnification, by at least a
majority of the Trustees who are disinterested persons and are not Interested
Persons (provided that a majority of such Trustees then in office act on the
matter), upon a determination, based upon a review of readily available facts
(but not a full trial-type inquiry) that such Covered Person is not liable to
the Trust or its Shareholders by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of such
Covered Person's office, or (b) there has been obtained an opinion in writing of
independent legal counsel, based upon a review of readily available facts (but
not a full-trial type inquiry) to the effect that such indemnification would not
protect such Covered Person against any liability to the Trust to which such
Covered Person would otherwise be subject by reason of wilful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of his office.
Any approval pursuant to this Section shall not prevent the recovery from
any Covered Person of any amount paid to such Covered Person in accordance with
this Section as indemnification if such Covered Person is subsequently
adjudicated by a court of competent jurisdiction to have been liable to the
Trust or its Shareholders by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of such
Covered Person's office.
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Indemnification Not Exclusive; Definitions
------------------------------------------
Section 3. The right of indemnification hereby provided shall not be
---------
exclusive of or affect any other rights to which any such Covered Person may be
entitled. As used in this Article VIII, the term "Covered Person" shall include
such person's heirs, executors and administrators, and a "disinterested person"
is a person against whom none of the actions, suits or other proceedings in
question or another action, suit or other proceeding on the same or similar
grounds is then or has been pending. Nothing contained in this article shall
affect any rights to indemnification to which personnel of the Trust, other than
Trustees and officers, and other persons may be entitled by contract or
otherwise under law, nor the power of the Trust to purchase and maintain
liability insurance on behalf of such persons.
Shareholders
------------
Section 4. In case any Shareholder or former Shareholder shall be held to
---------
be personally liable solely by reason of his or her being or having been a
Shareholder and not because of his or her acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his or her heirs, executors,
administrators or other legal representatives or, in the case of a corporation
or other entity, its corporate or other general successor) shall be entitled to
be held harmless from and indemnified against all loss and expense arising from
such liability, but only out of the assets of the particular series of Shares of
which he or she is or was a Shareholder.
ARTICLE IX
MISCELLANEOUS
Trustees, Shareholders, etc. Not Personally Liable; Notice
----------------------------------------------------------
Section 1. All persons extending credit to, contracting with or having any
---------
claim against the Trust or a particular series of Shares shall look only to the
assets of the Trust or the assets of that particular series of Shares for
payment under such credit, contract or claim; and neither the Shareholders nor
the Trustees, nor any of the Trust's officers, employees or agents, whether
past, present or future, shall be personally liable therefor. Nothing in this
Declaration of Trust shall protect any Trustee against any liability to which
such Trustee would otherwise be subject by reason of wilful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee.
Every note, bond, contract, instrument, writing, certificate or undertaking
made or issued by the Trustees or by any officers
-20-
or officer shall give notice that this Declaration of Trust is on file with the
Secretary of State of The Commonwealth of Massachusetts and shall recite that
the same was executed or made by or on behalf of the Trust or by them as
Trustees or Trustee or as officers or officer and not individually and that the
obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and property of
the Trust, and may contain such further recital as he or she or they may deem
appropriate, but the omission thereof shall not operate to bind any Trustees or
Trustee or officers or officer or Shareholders or Shareholder individually.
Trustee's Good Faith Action, Expert Advice, No Bond or Surety
-------------------------------------------------------------
Section 2. The exercise by the Trustees of their powers and discretions
---------
hereunder shall be binding upon everyone interested. A Trustee shall be liable
for his or her own wilful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of Trustee, and
for nothing else, and shall not be liable for errors of judgment or mistakes of
fact or law. The Trustees may take advice of counsel or other experts with
respect to the meaning and operation of this Declaration of Trust, and shall be
under no liability for any act or omission in accordance with such advice or for
failing to follow such advice. The Trustees shall not be required to give any
bond as such, nor any surety if a bond is required.
Liability of Third Persons Dealing with Trustees
------------------------------------------------
Section 3. No person dealing with the Trustees shall be bound to make any
---------
inquiry concerning the validity of any transaction made or to be made by the
Trustees or to see to the application of any payments made or property
transferred to the Trust or upon its order.
Duration and Termination of Trust
---------------------------------
Section 4. Unless terminated as provided herein, the Trust shall continue
---------
without limitation of time. The Trust may be terminated at any time by vote of
the holders of a majority of the votes represented by outstanding Shares of each
series entitled to vote or by the Trustees by written notice to the
Shareholders. Any series of Shares may be terminated at any time by vote of the
holders of a majority of the votes represented by outstanding Shares of such
series entitled to vote or by the Trustees by written notice to the Shareholders
of such series.
Upon termination of the Trust or of any one or more series of Shares, after
paying or otherwise providing for all charges, taxes, expenses and liabilities,
whether due or accrued or anticipated as may be determined by the Trustees, the
Trust shall
-21-
in accordance with such procedures as the Trustees consider appropriate reduce
the remaining assets to distributable form in cash or shares or other
securities, or any combination thereof, and distribute the proceeds to the
Shareholders of the series involved, ratably according to the number of Shares
of such series held by the several Shareholders of such series on the date of
termination, except to the extent otherwise required or permitted by the
preferences and special or relative rights and privileges of any classes of
Shares of that series, provided that any distribution to the Shareholders of a
particular class of Shares shall be made to such Shareholders pro rata in
proportion to the number of Shares of such class held by each of them.
Filing of Copies, References, Headings
--------------------------------------
Section 5. The original or a copy of this instrument and of each amendment
---------
hereto shall be kept at the office of the Trust where it may be inspected by any
Shareholder. A copy of this instrument and of each amendment hereto shall be
filed by the Trust with the Secretary of State of The Commonwealth of
Massachusetts and with the Clerk of the City of Springfield, as well as any
other governmental office where such filing may from time to time be required.
Anyone dealing with the Trust may rely on a certificate by an officer of the
Trust as to whether or not any such amendments have been made and as to any
matters in connection with the Trust hereunder; and, with the same effect as if
it were the original, may rely on a copy certified by an officer of the Trust to
be a copy of this instrument or of any such amendments. In this instrument and
in any such amendment, references to this instrument, and all expressions such
as "herein," "hereof" and "hereunder," shall be deemed to refer to this
instrument as amended or affected by any such amendments. Headings are placed
herein for convenience of reference only and shall not be taken as a part hereof
or control or affect the meaning, construction or effect of this instrument.
This instrument may be executed in any number of counterparts, each of which
shall be deemed an original.
Applicable Law
--------------
Section 6. This Declaration of Trust is made in The Commonwealth of
---------
Massachusetts, and it is created under and is to be governed by and construed
and administered according to the laws of said Commonwealth. The Trust shall be
of the type commonly called a Massachusetts business trust, and without limiting
the provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a trust.
Amendments
----------
Section 7. This Declaration of Trust may be amended at any time by an
---------
instrument in writing signed by a majority of the then
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Trustees when authorized so to do by a vote of the holders of a majority of the
votes represented by outstanding Shares entitled to vote, except that an
amendment which shall affect the holders of one or more series or classes of
Shares but not the holders of all outstanding series and classes shall be
authorized by vote of the holders of a majority of the votes represented by
outstanding Shares entitled to vote of each series and class affected and no
vote of Shareholders of a series or class not affected shall be required.
Amendments having the purpose of changing the name of the Trust or of supplying
any omission, curing any ambiguity or curing, correcting or supplementing any
defective or inconsistent provision contained herein shall not require
authorization by Shareholder vote.
IN WITNESS WHEREOF the undersigned has hereunto set his hand in the City of
Springfield, Massachusetts for himself and his assigns, as of this 28th day of
May, 1993.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as Trustee
and not individually
THE COMMONWEALTH OF MASSACHUSETTS
Springfield ss. May 28, 1993
Then personally appeared the above-named Trustee and acknowledged the
foregoing instrument to be his free act and deed, before me,
/s/ [SIGNATURE APPEARS HERE]
-----------------------------
Notary Public
My commission expires: April 15, 1999
[NOTARY'S SEAL [STAMP APPEARS HERE]
APPEARS HERE]
The address of the trustee is:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Massachusetts Mutual Life
Insurance Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The principal office of the Trust is:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Massachusetts Mutual Life
Insurance Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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