JWB AGGRESSIVE GROWTH FUND
AGREEMENT AND DECLARATION OF TRUST
Dated: October 10, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ of Business:
c/o JWB Management Corp.
Century Square Building
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Massachusetts Office and Name and
Address of Initial Trustee:
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ & Worcester
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name and Address of Resident Agent:
The ▇▇▇▇▇▇▇▇-▇▇▇▇ Corporation System, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
JWB AGGRESSIVE GROWTH FUND
AGREEMENT AND DECLARATION OF TRUST
Table of Contents
Provision Page
RECITALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1 THE TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Location . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.3 Nature of Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.4 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.5 Real Property to be Converted into Personal Property . . . . . . . . . . . . 6
ARTICLE 2 PURPOSE OF THE TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 3 POWERS OF THE TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.1 Powers in General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(a) Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(b) Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(c) Ownership Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(d) Form of Holding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(e) Reorganization, etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(f) Voting Trusts, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(g) Contracts, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(h) Guarantees, etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(i) Partnerships, etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(j) Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(k) Pensions, etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(l) Power of Collection and Litigation. . . . . . . . . . . . . . . . . . . . . . . 9
(m) Issuance and Repurchase of Shares . . . . . . . . . . . . . . . . . . . . . . . 9
(n) Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(o) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(p) Agents, etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(q) Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(r) Valuation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(s) Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(t) General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.2 Borrowings; Financings; Issuance of Securities . . . . . . . . . . . . . . 10
Section 3.3 Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.4 Allocations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.5 Further Powers; Limitations. . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 4 TRUSTEES AND OFFICERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.1 Number, Designation, Election, Term, etc.. . . . . . . . . . . . . . . . . 12
(a) Initial Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(b) Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(c) Election and Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(d) Resignation and Retirement. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(e) Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(f) Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(g) Acceptance of Trusts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(h) Effect of Death, Resignation, etc.. . . . . . . . . . . . . . . . . . . . . . . 13
(i) Conveyance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(j) No Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.2 Trustees' Meetings; Participation by Telephone, etc. . . . . . . . . . . . 14
Section 4.3 Committees; Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.4 Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.5 Compensation of Trustees and Officers . . . . . . . . . . . . . . . . . . 14
Section 4.6 Ownership of Shares and Securities of the Trust . . . . . . . . . . . . . 15
Section 4.7 Right of Trustees and Officers to Own Property and to
Engage in Business; Authority of Trustees to
Permit Others to do Likewise . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.8 Reliance on Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.9 Surety Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.10 Apparent Authority of Trustees and Officers. . . . . . . . . . . . . . . . 16
Section 4.11 Other Relationships Not Prohibited . . . . . . . . . . . . . . . . . . . . 16
Section 4.12 Payment of Trust Expenses. . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.13 Ownership of the Trust Property. . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 5 DELEGATION OF MANAGERIAL RESPONSIBILITIES. . . . . . . . . . . . . . . . . . . . . . 17
Section 5.1 Appointment; Action by Less than All Trustees. . . . . . . . . . . . . . . 17
Section 5.2 Certain Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(a) Advisory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(b) Administration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(c) Distribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(d) Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(e) Transfer and Dividend Disbursing Agency . . . . . . . . . . . . . . . . . . . . 19
(f) Shareholder Servicing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(g) Accounting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 6 PORTFOLIOS AND SHARES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.1 Description of Portfolios and Shares . . . . . . . . . . . . . . . . . . . . 19
(a) Shares; Portfolios; Series of Shares. . . . . . . . . . . . . . . . . . . . 19
(b) Establishment, etc. of Additional Portfolios;
Authorization of Shares. . . . . . . . . . . . . . . . . . . . . . . . . . 20
(c) Character of Separate Portfolios and Shares Thereof . . . . . . . . . . . . 20
(d) Consideration for Shares. . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.2 Establishment and Designation of the Aggressive Growth
Portfolio and of the Shares Thereof; General
Provisions for All Portfolios. . . . . . . . . . . . . . . . . . . . . . . . 21
(a) Assets Belonging to Portfolios . . . . . . . . . . . . . . . . . . . . . . . . . 21
(b) Liabilities of Portfolios. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(c) Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(d) Liquidation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(e) Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(f) Redemption by Shareholder. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(g) Redemption at the Option of the Trust. . . . . . . . . . . . . . . . . . . . . . 23
(h) Net Asset Value. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(i) Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(j) Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(k) Rights of Fractional Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(l) Conversion Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.3 Ownership of Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.4 Investments in the Trust . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.5 No Pre-emptive Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.6 Status of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 7 SHAREHOLDERS' VOTING POWERS AND MEETINGS . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.1 Voting Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.2 Number of Votes and Manner of Voting; Proxies. . . . . . . . . . . . . . . 26
Section 7.3 Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.4 Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.5 Quorum and Required Vote . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.6 Action by Written Consent. . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.7 Inspection of Records. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.8 Additional Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 8 LIMITATION OF LIABILITY; INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . 27
Section 8.1 Trustees, Shareholders, etc. Not Personally Liable; Notice . . . . . . . . 27
Section 8.2 Trustees' Good Faith Action; Expert Advice; No Bond
or Surety. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 8.3 Indemnification of Shareholders. . . . . . . . . . . . . . . . . . . . . . 28
Section 8.4 Indemnification of Trustees, Officers, etc.. . . . . . . . . . . . . . . . 29
Section 8.5 Compromise Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.6 Indemnification Not Exclusive, etc.. . . . . . . . . . . . . . . . . . . . 30
Section 8.7 Liability of Third Persons Dealing with Trustees . . . . . . . . . . . . . 30
ARTICLE 9 DURATION; REORGANIZATION; AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 9.1 Duration and Termination of Trust. . . . . . . . . . . . . . . . . . . . . 30
Section 9.2 Reorganization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 9.3 Amendments; etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 9.4 Filing of Copies of Declaration and Amendments . . . . . . . . . . . . . . 32
ARTICLE 10 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 10.1 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 10.2 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 10.3 Reliance by Third Parties. . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 10.4 References; Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 10.5 Use of the Name "JWB". . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
AGREEMENT AND DECLARATION OF TRUST
OF
JWB AGGRESSIVE GROWTH FUND
This AGREEMENT AND DECLARATION OF TRUST, made at Boston, Massachusetts this
10th day of October, 1995 by and between the Settlor and the Trustee whose
signature is set forth below (the "Initial Trustee"),
W I T N E S S E T H T H A T:
WHEREAS, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual residing in Peabody,
Massachusetts (the "Settlor"), proposes to deliver to the Initial Trustee the
sum of one hundred dollars ($100.00) lawful money of the United States of
America in trust hereunder and to authorize the Initial Trustee and all other
Persons acting as Trustees hereunder to employ such funds, and any other funds
coming into their hands or the hands of their successor or successors as such
Trustees, to carry on the business of an investment company, and as such of
buying, selling, investing in or otherwise dealing in and with stocks, bonds,
debentures, warrants, options, futures contracts and other securities and
interests therein, or calls or puts with respect to any of the same, or such
other and further investment media and other property as the Trustees may deem
advisable, which are not prohibited by law or the terms of this Declaration; and
WHEREAS, the Initial Trustee is willing to accept such sum, together with
any and all additions thereto and the income or increments thereof, upon the
terms, conditions and trusts hereinafter set forth; and
WHEREAS, it is proposed that the assets held by the Trustees be divided
into separate portfolios, each with its own separate investment assets,
investment objectives, policies and purposes, and that the beneficial interest
in each such portfolio shall be divided into transferable Shares of Beneficial
Interest, a separate Series of Shares for each portfolio, all in accordance with
the provisions hereinafter set forth; and
WHEREAS, it is desired that the trust established hereby (the "Trust") be
managed and operated as a trust with transferable shares under the laws of
Massachusetts, of the type commonly known as and referred to as a Massachusetts
business trust, in accordance with the provisions hereinafter set forth,
NOW, THEREFORE, the Initial Trustee, for himself and his successors as
Trustees, hereby declares, and agrees with the Settlor, for himself and for all
Persons who shall hereafter become holders of Shares of Beneficial Interest of
the Trust, of any Series, that the Trustees will hold the sum delivered to them
upon the execution hereof, and all other and further cash, securities and other
property of every type and description which they may in any way acquire in
their capacity as such Trustees, together with the income therefrom and the
proceeds thereof,
IN TRUST NEVERTHELESS, to manage and dispose of the same for the benefit of the
holders from time to time of the Shares of Beneficial Interest of the several
Series being issued and to be issued hereunder and in the manner and subject to
the provisions hereof, to wit:
ARTICLE 1
THE TRUST
SECTION 1.1 Name. The name of the Trust shall be
"JWB AGGRESSIVE GROWTH FUND,"
and so far as may be practicable the Trustees shall conduct the Trust's
activities, execute all documents and ▇▇▇ or be sued under that name, which name
(and the word "Trust" wherever used in this Agreement and Declaration of Trust,
except where the context otherwise requires) shall refer to the Trustees in
their capacity as Trustees, and not individually or personally, and shall not
refer to the officers, agents or employees of the Trust or of such Trustees, or
to the holders of the Shares of Beneficial Interest of the Trust, of any Series.
If the Trustees determine
that the use of such name is not practicable, legal or convenient at any time or
in any jurisdiction, or if the Trust is required to discontinue the use of such
name pursuant to Section 10.5 hereof, then subject to that Section, the Trustees
may use such other designation, or they may adopt such other name for the Trust
as they deem proper, and the Trust may hold property and conduct its activities
under such designation or name.
SECTION 1.2 Location. The Trust shall have an office in Boston,
Massachusetts, unless changed by the Trustees to another location in
Massachusetts or elsewhere, but such office need not be the sole or principal
office of the Trust. The Trust may have such other offices or places of business
as the Trustees may from time to time determine to be necessary or expedient.
SECTION 1.3 Nature of Trust. The Trust shall be a trust with transferable
shares under the laws of The Commonwealth of Massachusetts, of the type referred
to in Section 1 of Chapter 182 of the Massachusetts General Laws and commonly
termed a Massachusetts business trust. The Trust is not intended to be, shall
not be deemed to be, and shall not be treated as, a general partnership, limited
partnership, joint venture, corporation or joint stock company. The Shareholders
shall be beneficiaries and their relationship to the Trustees shall be solely in
that capacity in accordance with the rights conferred upon them hereunder.
SECTION 1.4 Definitions. As used in this Agreement and Declaration of
Trust, the following terms shall have the meanings set forth below unless the
context thereof otherwise requires:
"Accounting Agent" shall have the meaning designated in Section 5.2(g)
hereof.
"Administrator" shall have the meaning designated in Section 5.2(b) hereof.
"Affiliated Person" shall have the meaning assigned to it in the 1940 Act.
"By-Laws" shall mean the By-Laws of the Trust, as amended from time to
time.
"Certificate of Designation" shall have the meaning designated in Section
6.1 hereof.
"Certificate of Termination" shall have the meaning designated in Section
6.1 hereof.
"Commission" shall have the same meaning as in the 1940 Act.
"Contracting Party" shall have the meaning designated in the preamble to
Section 5.2 hereof.
"Covered Person" shall have the meaning designated in Section 8.4 hereof.
"Custodian" shall have the meaning designated in Section 5.2(d) hereof.
"Declaration" and "Declaration of Trust" shall mean this Agreement and
Declaration of Trust and all amendments or modifications thereof as from time to
time in effect. References in this Agreement and Declaration of Trust to
"hereof", "herein" and "hereunder" shall be deemed to refer to the Declaration
of Trust generally, and shall not be limited to the particular text, Article or
Section in which such words appear.
"Disabling Conduct" shall have the meaning designated in Section 8.4
hereof.
"Distributor" shall have the meaning designated in Section 5.2(c) hereof.
"Dividend Disbursing Agent" shall have the meaning designated in Section
5.2(e) hereof.
"General Items" shall have the meaning defined in Section 6.2(a) hereof.
"Initial Trustee" shall have the meaning defined in the preamble hereto.
"Internal Revenue Code shall mean the Internal Revenue Code of 1986, as
from time to time amended and in effect, or any substituted statute dealing with
the same general subject matter as the Internal Revenue Code of 1986, as in
effect on October, 1995, and in either case the rules and regulations
thereunder, as from time to time interpreted and applied by applicable case law
thereunder.
"Investment Adviser" shall have the meaning stated in Section 5.2(a)
hereof.
"Majority of the Trustees" shall mean a majority of the Trustees in office
at the time in question. At any time at which there shall be only one (1)
Trustee in office, such term shall mean such Trustee.
"Majority Shareholder Vote," as used with respect to the election of any
Trustee at a meeting of Shareholders, shall mean the vote for the election of
such Trustee of a plurality of
all outstanding Shares of the Trust, without regard to Series, represented in
person or by proxy and entitled to vote thereon, provided that a quorum
(determined as provided in Section 7.5 hereof) is present, and as used with
respect to any other action required or permitted to be taken by Shareholders,
shall mean the affirmative vote for such action of the holders of that number of
all outstanding Shares (or, where a separate vote of Shares of any particular
Series is to be taken, the affirmative vote of that number of the outstanding
Shares of that Series) of the Trust which constitutes either (i) a majority of
all Shares (or of Shares of the particular Series) represented in person or by
proxy and entitled to vote on such action at the meeting of Shareholders at
which such action is to be taken, provided that a quorum (determined as provided
in Section 7.5 hereof) is present; or (ii) if such action is to be taken by
written consent of Shareholders, a majority of all Shares (or of Shares of the
particular Series) issued and outstanding and entitled to vote on such action;
provided, that (iii) as used with respect to any action requiring the
affirmative vote of "a majority of the outstanding voting securities", as the
quoted phrase is defined in the 1940 Act, of the Trust or of any Series,
"Majority Shareholder Vote" means the vote for such action at a meeting of
Shareholders of the smallest majority of all outstanding Shares of the Trust (or
of Shares of the particular Series) entitled to vote on such action which
satisfies such 1940 Act voting requirement.
"1940 Act" shall mean the provisions of the Investment Company Act of 1940
and the rules and regulations thereunder, both as amended from time to time, and
any order or orders thereunder which may from time to time be applicable to the
Trust.
"Person" shall mean and include individuals, as well as corporations,
limited partnerships, general partnerships, joint stock companies, joint
ventures, associations, banks, trust companies, land trusts, business trusts or
other organizations established under the laws of any jurisdiction, whether or
not considered to be legal entities, and governments and agencies and political
subdivisions thereof.
"Portfolio" or "Portfolios" shall mean one or more of the separate
components of the assets of the Trust which are now or hereafter established and
designated under or in accordance with the provisions of Article 6 hereof.
"Portfolio Assets" shall have the meaning defined in Section 6.2(a) hereof.
"Principal Underwriter" shall have the meaning designated in Section 5.2(c)
hereof.
"Prospectus," as used with respect to any Portfolio or Series of Shares,
shall mean the prospectus relating to such Portfolio or Series which constitutes
part of the currently effective Registration Statement of the Trust under the
Securities Act of 1933, as such prospectus may be amended or supplemented from
time to time.
"Securities" shall mean any and all bills, notes, bonds, debentures or
other obligations or evidences of indebtedness, certificates of deposit,
bankers' acceptances, commercial paper, repurchase agreements or other money
market instruments; stocks, shares or other equity ownership interests; and
warrants, options or other instruments representing rights to subscribe for,
purchase, receive or otherwise acquire or to sell, transfer, assign or otherwise
dispose of, and scrip, certificates, receipts or other instruments evidencing
any ownership rights or interests
in, any of the foregoing and "when issued" and "delayed delivery" contracts for
securities, issued, guaranteed or sponsored by any governments, political
subdivisions or governmental authorities, agencies or instrumentalities, by any
individuals, firms, companies, corporations, syndicates, associations or trusts,
or by any other organizations or entities whatsoever, irrespective of their
forms or the names by which they may be described, whether or not they be
organized and operated for profit, and whether they be domestic or foreign with
respect to The Commonwealth of Massachusetts or the United States of America.
"Securities of the Trust" shall mean any Securities issued by the Trust.
"Series" shall mean one or more of the series of Shares authorized by the
Trustees, each to represent the beneficial interests in one of the Portfolios of
the Trust.
"Settlor" shall have the meaning stated in the first "Whereas" clause set
forth above.
"Shareholder" shall mean as of any particular time any Person shown of
record at such time on the books of the Trust as a holder of outstanding Shares
of any Series, and shall include a pledgee into whose name any such Shares are
transferred in pledge.
"Shareholder Servicing Agent" shall have the meaning designated in Section
5.2(f) hereof.
"Shares" shall mean the transferable units into which the beneficial
interest in the Trust and each Portfolio of the Trust (as the context may
require) shall be divided from time to time, and includes fractions of Shares as
well as whole Shares. All references herein to "Shares" which are not
accompanied by a reference to any particular Series shall be deemed to apply to
outstanding Shares without regard to Series.
"Single Class Voting," as used with respect to any matter to be acted upon
at a meeting or by written consent of Shareholders, shall mean a style of voting
in which each holder of one or more Shares shall be entitled to one vote on the
matter in question for each Share standing in his name on the records of the
Trust, irrespective of Series, and all outstanding Shares of all Series vote as
a single class.
"Statement of Additional Information," as used with respect to any Series
of Shares, shall mean the statement of additional information relating to such
Series, which constitutes part of the currently effective Registration Statement
of the Trust under the Securities Act of 1933, as such statement of additional
information may be amended or supplemented from time to time.
"Transfer Agent" shall have the meaning defined in Section 5.2(e) hereof.
"Trust" shall have the meaning stated in the fourth "Whereas" clause set
forth above.
"Trust Property" shall mean, as of any particular time, any and all
property which shall have been transferred, conveyed or paid to the Trust or the
Trustees, and all interest, dividends, income, earnings, profits and gains
therefrom, 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, and which at
such time is owned or held by, or for the account of, the Trust or the Trustees,
without regard to the Portfolio to which such property is allocated.
"Trustees" shall mean, collectively, the Initial Trustee, so long as he
shall continue in office, and all other individuals who at the time in question
have been duly elected or appointed as Trustees of the Trust in accordance with
the provisions hereof and who have qualified and are then in office. At any time
at which there shall be only one (1) Trustee in office, such term shall mean
such single Trustee.
SECTION 1.5 Real Property to be Converted into Personal Property.
Notwithstanding any other provision hereof, any real property at any time
forming part of the Trust Property shall be held in trust for sale and
conversion into personal property at such time or times and in such manner and
upon such terms as the Trustees shall approve, but the Trustees shall have power
until the termination of this Trust to postpone such conversion as long as they
in their uncontrolled discretion shall think fit, and for the purpose of
determining the nature of the interest of the Shareholders therein, all such
real property shall at all times be considered as personal property.
ARTICLE 2
PURPOSE OF THE TRUST
The purpose of the Trust shall be to engage in the business of being an
investment company, and as such of subscribing for, purchasing or otherwise
acquiring, holding for investment or trading in, borrowing, lending and selling
short, selling, assigning, negotiating or exchanging and otherwise disposing of,
and turning to account, realizing upon and generally dealing in and with, in any
manner, (a) Securities of all kinds, (b) precious metals and other minerals,
contracts to purchase and sell, and other interests of every nature and kind in,
such metals or minerals, and (c) rare coins and other numismatic items, and all
as the Trustees in their discretion shall determine to be necessary, desirable
or appropriate, and to exercise and perform any and every act, thing or power
necessary, suitable or desirable for the accomplishment of such purpose, the
attainment of any of the objectives or the furtherance of any of the powers
given hereby which are lawful purposes, objects or powers of a trust with
transferable shares of the type commonly termed a Massachusetts business trust;
and to do every other act or acts or thing or things incidental or appurtenant
to or growing out of or in connection with the aforesaid objectives, purposes or
powers, or any of them, which a trust of the type commonly termed a
Massachusetts business trust is not now or hereafter prohibited from doing,
exercising or performing.
ARTICLE 3
POWERS OF THE TRUSTEES
SECTION 3.1 Powers in General. The Trustees shall have, without other or
further authorization, full, entire, exclusive and absolute power, control and
authority over, and management of, the business of the Trust and over the Trust
Property, to the same extent as if the Trustees were the sole owners of the
business and property of the Trust in their own right, and with such powers of
delegation as may be permitted by this Declaration, subject only to such
limitations as may be expressly imposed by this Declaration or by applicable
law. The enumeration of any specific power or authority herein shall not be
construed as limiting the aforesaid power or authority or any specific power or
authority. Without limiting the foregoing, the Trustees may adopt By-Laws not
inconsistent with this Declaration providing for the conduct of the business and
affairs of the Trust and may amend and repeal them to the extent that such
By-Laws do not reserve that right to the Shareholders; they may select, and from
time to time change, the fiscal year of the Trust; they may adopt and use a seal
for the Trust, provided, that unless otherwise required by the Trustees, it
shall not be necessary to place the seal upon, and its absence shall not impair
the validity of, any document, instrument or other paper executed and delivered
by or on behalf of the Trust; they may from time to time in accordance with the
provisions of Section 6.1 hereof establish one or more Portfolios to which they
may allocate such of the Trust Property, subject to such liabilities, as they
shall deem appropriate, each such Portfolio to be operated by the Trustees as a
separate and distinct investment medium and with separately defined investment
objectives and policies and distinct investment purposes, all as established by
the Trustees, or from time to time changed by them; they may as they consider
appropriate elect and remove officers and appoint and terminate agents and
consultants and hire and terminate employees, any one or more of the foregoing
of whom may be a Trustee; they may appoint from their own number, and terminate,
any one or more committees consisting of one or more Trustees, including without
implied limitation an Executive Committee, which may, when the Trustees are not
in session and subject to the 1940 Act, exercise some or all of the power and
authority of the Trustees as the Trustees may determine; in accordance with
Section 5.2 they may employ one or more Investment Advisers, Administrators and
Custodians and may authorize any Custodian to employ subcustodians or agents and
to deposit all or any part of such assets in a system or systems for the central
handling of Securities, retain Transfer, Dividend Disbursing, Accounting or
Shareholder Servicing Agents or any of the foregoing, provide for the
distribution of Shares by the Trust through one or more Distributors, Principal
Underwriters or otherwise, set record dates or times for the determination of
Shareholders entitled to participate in, benefit from or act with respect to
various matters; and in general they may delegate to any officer of the Trust,
to any Committee of the Trustees and to any employee, Investment Adviser,
Administrator, Distributor, Custodian, Transfer Agent, Dividend Disbursing
Agent, or any other agent or consultant of the Trust, such authority, powers,
functions and duties as they consider desirable or appropriate for the conduct
of the business and affairs of the Trust, including without implied limitation
the power and authority to act in the name of the Trust and of the Trustees, to
sign documents and to act as attorney-in-fact for the Trustees. Without limiting
the foregoing and to the extent not inconsistent with the 1940 Act or other
applicable law, the Trustees shall have power and authority:
(a) Investments. To invest and reinvest cash and other property; to
buy, for cash or on margin, and otherwise acquire and hold, Securities
created or issued by any Persons, including Securities maturing after the
possible termination of the Trust; to make payment therefor in any lawful
manner in exchange for any of the Trust Property; and to hold cash or other
property uninvested without in any event being bound or limited by any
present or future law or custom in regard to investments by trustees;
(b) Disposition of Assets. To lend, sell, exchange, mortgage, pledge,
hypothecate, grant security interests in, encumber, negotiate, convey,
transfer or otherwise dispose of, and to trade in, any and all of the Trust
Property, free and clear of all trusts, for cash or on terms, with or
without advertisement, and on such terms and conditions as to payment,
security or otherwise, all as they shall deem necessary or expedient;
(c) Ownership Powers. To vote or give assent, or exercise any and all
other rights, powers and privileges of ownership with respect to, and to
perform any and all duties and obligations as owners of, any Securities or
other property forming part of the Trust Property, the same as any
individual might do; to exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of Securities, and to
receive powers of attorney from, and to execute and deliver proxies or
powers of attorney to, such Person or Persons as the Trustees shall deem
proper, receiving from or granting to such Person or Persons such power and
discretion with relation to Securities or other property of the Trust, all
as the Trustees shall deem proper;
(d) Form of Holding. To hold any Security or other property in a form
not indicating any trust, whether in bearer, unregistered or other
negotiable form, or in the name of the Trustees or of the Trust, or of the
Portfolio to which such Securities or property belong, or in the name of a
Custodian, subcustodian or other nominee or nominees, or otherwise, upon
such terms, in such manner or with such powers, as the Trustees may
determine, and with or without indicating any trust or the interest of the
Trustees therein;
(e) Reorganization, etc. 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 or any Portfolio; 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 forming part of the Trust Property;
(f) Voting Trusts, etc. To join with other holders of any Securities
in acting through a committee, depository, voting trustee or otherwise, and
in that connection to deposit any Security with, or transfer any Security
to, any such committee, depository 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, depository or trustee as the Trustees shall deem proper;
(g) Contracts, etc. To enter into, make and perform all such
obligations, contracts, agreements and undertakings of every kind and
description, with any Person
or Persons, as the Trustees shall in their discretion deem expedient in the
conduct of the business of the Trust, for such terms as they shall see fit,
whether or not extending beyond the term of office of the Trustees, or
beyond the possible expiration of the Trust; to amend, extend, release or
cancel any such obligations, contracts, agreements or understandings; and
to execute, acknowledge, deliver and record all written instruments which
they may deem necessary or expedient in the exercise of their powers;
(h) Guarantees, etc. To endorse or guarantee the payment of any notes
or other obligations of any Person; to make contracts of guaranty or
suretyship, or otherwise assume liability for payment thereof; and to
mortgage and pledge the Trust Property or any part thereof to secure any of
or all such obligations;
(i) Partnerships, etc. To enter into joint ventures, general or
limited partnerships and any other combinations or associations;
(j) Insurance. To purchase and pay for entirely out of Trust Property
such insurance as they may deem necessary or appropriate for the conduct of
the business, including, without limitation, insurance policies insuring
the assets of the Trust and payment of distributions and principal on its
portfolio investments, and insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, consultants, Investment Advisers,
managers, Administrators, Distributors, Principal Underwriters, or other
independent contractors, or any thereof (or any Person connected
therewith), of the Trust, individually, against all claims and liabilities
of every nature arising by reason of holding, being or having held any such
office or position, or by reason of any action alleged to have been taken
or omitted by any such Person in any such capacity, including any action
taken or omitted that may be determined to constitute negligence, whether
or not the Trust would have the power to indemnify such Person against such
liability;
(k) Pensions, etc. To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, trusts and provisions, including
the purchasing of life insurance and annuity contracts as a means of
providing such retirement and other benefits, for any or all of the
Trustees, officers, employees and agents of the Trust;
(l) Power of Collection and Litigation. To collect, ▇▇▇ for and
receive all sums of money coming due to the Trust, to employ counsel, and
to commence, engage in, prosecute, intervene in, join, defend, compound,
compromise, adjust or abandon, in the name of the Trust, any and all
actions, suits, proceedings, disputes, claims, controversies, demands or
other litigation or legal proceedings relating to the Trust, the business
of the Trust, the Trust Property, or the Trustees, officers, employees,
agents and other independent contractors of the Trust, in their capacity as
such, at law or in equity, or before any other bodies or tribunals, and to
compromise, arbitrate or otherwise adjust any dispute to which the Trust
may be a party, whether or not any suit is commenced or any claim shall
have been made or asserted;
(m) Issuance and Repurchase of Shares. To issue, sell, repurchase,
redeem, retire, cancel, acquire, hold, resell, reissue, dispose of,
transfer, and otherwise deal in Shares of any Series, and, subject to
Article 6 hereof, to apply to any such repurchase, redemption, retirement,
cancellation or acquisition of Shares of any Series, any of the Portfolio
Assets belonging to the Portfolio to which such Series relates, whether
constituting capital or surplus or otherwise, to the full extent now or
hereafter permitted by applicable law; provided, that any Shares belonging
to the Trust shall not be voted, directly or indirectly;
(n) Offices. To have one or more offices, and to carry on all or any
of the operations and business of the Trust, in any of the States,
Districts or Territories of the United States, and in any and all foreign
countries, subject to the laws of such State, District, Territory or
country;
(o) Expenses. To incur and pay any and all such expenses and charges
as they may deem advisable (including without limitation appropriate fees
to themselves as Trustees), and to pay all such sums of money for which
they may be held liable by way of damages, penalty, fine or otherwise;
(p) Agents, etc. To retain and employ any and all such servants,
agents, employees, attorneys, brokers, investment advisers, accountants,
architects, engineers, builders, escrow agents, depositories, consultants,
ancillary trustees, custodians, agents for collection, insurers, banks and
officers, as they think best for the business of the Trust or any
Portfolio, to supervise and direct the acts of any of the same, and to fix
and pay their compensation and define their duties;
(q) Accounts. To determine, and from time to time change, the method
or form in which the accounts of the Trust shall be kept;
(r) Valuation. Subject to the requirements of the 1940 Act, to
determine from time to time the value of all or any part of the Trust
Property and of any services, Securities, property or other consideration
to be furnished to or acquired by the Trust, and from time to time to
revalue all or any part of the Trust Property in accordance with such
appraisals or other information as is, in the Trustees' sole judgment,
necessary and satisfactory;
(s) Indemnification. In addition to the mandatory indemnification
provided for in Article 8 hereof and to the extent permitted by law, to
indemnify or enter into agree- ments with respect to indemnification with
any Person with whom this Trust has dealings, including, without
limitation, any independent contractor, to such extent as the Trustees
shall determine; and
(t) General. To do all such other acts and things and to conduct,
operate, carry on and engage in such other lawful businesses or business
activities as they shall in their sole and absolute discretion consider to
be incidental to the business of the Trust or any Portfolio as an
investment company, and to exercise all powers which they shall in their
discretion consider necessary, useful or appropriate to carry on the
business of the Trust
or any Portfolio, to promote any of the purposes for which the Trust is
formed, whether or not such things are specifically mentioned herein, in
order to protect or promote the interests of the Trust or any Portfolio, or
otherwise to carry out the provisions of this Declaration.
SECTION 3.2 Borrowings; Financings; Issuance of Securities. The Trustees
shall have power to borrow or in any other manner raise such sum or sums of
money, and to incur such other indebtedness for goods or services, or for or in
connection with the purchase or other acquisition of property, as they shall
deem advisable for the purposes of the Trust, in any manner and on any terms,
and to evidence the same by negotiable or non-negotiable Securities which may
mature at any time or times, even beyond the possible date of termination of the
Trust; to issue Securities of any type for such cash, property, services or
other considerations, and at such time or times and upon such terms, as they may
deem advisable; and to reacquire any such Securities. Any such Securities of the
Trust may, at the discretion of the Trustees, be made convertible into Shares of
any Series, or may evidence the right to purchase, subscribe for or otherwise
acquire Shares of any Series, at such times and on such terms as the Trustees
may prescribe.
SECTION 3.3 Deposits. Subject to the requirements of the 1940 Act, the
Trustees shall have power to deposit any moneys or Securities included in the
Trust Property with any one or more banks, trust companies or other banking
institutions, whether or not such deposits will draw interest. Such deposits are
to be subject to withdrawal in such manner as the Trustees may determine, and
the Trustees shall have no responsibility for any loss which may occur by reason
of the failure of the bank, trust company or other banking institution with
which any such moneys or Securities have been deposited, other than liability
based on their gross negligence or willful fault.
SECTION 3.4 Allocations. The Trustees shall have power to determine whether
moneys or other assets received by the Trust shall be charged or credited to
income or capital, or allocated between income and capital, including the power
to amortize or fail to amortize any part or all of any premium or discount, to
treat any part or all of the profit resulting from the maturity or sale of any
asset, whether purchased at a premium or at a discount, as income or capital, or
to apportion the same between income and capital, to apportion the sale price of
any asset between income and capital, and to determine in what manner any
expenses or disbursements are to be borne as between income and capital, whether
or not in the absence of the power and authority conferred by this Section 3.4
such assets would be regarded as income or as capital or such expense or
disbursement would be charged to income or to capital; to treat any dividend or
other distribution on any investment as income or capital, or to apportion the
same between income and capital; to provide or fail to provide reserves,
including reserves for depreciation, amortization or obsolescence in respect of
any Trust Property in such amounts and by such methods as they shall determine;
to allocate less than all of the consideration paid for Shares of any Series to
the shares of beneficial interest account of the Portfolio to which such Shares
relate and to allocate the balance thereof to paid-in capital of that Portfolio,
and to reallocate such amounts from time to time; all as the Trustees may
reasonably deem proper.
SECTION 3.5 Further Powers; Limitations. The Trustees shall have power to
do all such other matters and things, and to execute all such instruments, as
they deem necessary,
proper or desirable in order to carry out, promote or advance the interests of
the Trust, although such matters or 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
this Declaration, the presumption shall be in favor of a grant of power to the
Trustees. The Trustees shall not be required to obtain any court order to deal
with the Trust Property. The Trustees may limit their right to exercise any of
their powers through express restrictive provisions in the instruments
evidencing or providing the terms for any Securities of the Trust or in other
contractual instruments adopted on behalf of the Trust.
ARTICLE 4
TRUSTEES AND OFFICERS
SECTION 4.1 Number, Designation, Election, Term, etc.
(a) Initial Trustee. Upon his execution of this Declaration or a
counterpart hereof or some other writing in which he accepts such
Trusteeship and agrees to the provisions hereof, the individual whose
signature is affixed hereto as Initial Trustee shall become the Initial
Trustee hereof.
(b) Number. The Trustees serving as such, whether named below or
hereafter becoming Trustees, may, by a written instrument signed by a
Majority of the Trustees (or by an officer of the Trust pursuant to the
vote of a Majority of the Trustees) increase or decrease the number of
Trustees to a number other than the number theretofore determined. No
decrease in the number of Trustees shall have the effect of removing any
Trustee from office prior to the expiration of his term, but the number of
Trustees may be decreased in conjunction with the removal of a Trustee
pursuant to subsection (e) of this Section 4.l.
(c) Election and Term. The Trustees shall be elected by the
Shareholders of the Trust at the first meeting of Shareholders immediately
prior to the initial public offering of Shares of the Trust, and the term
of office of any Trustees in office before such election shall terminate at
the time of such election. Subject to Section 16(a) of the 1940 Act and to
the preceding sentence of this subsection (c), the Trustees shall have the
power to set and alter the terms of office of the Trustees, and at any time
to lengthen or shorten their own terms or make their terms of unlimited
duration, to elect their own successors and, pursuant to subsection (f) of
this Section 4.1, to appoint Trustees to fill vacancies; provided, that
Trustees shall be elected by a Majority Shareholder Vote at any such time
or times as the Trustees shall determine that such action is required under
Section 16(a) of the 1940 Act or, if not so required, that such action is
advisable; and further provided, that, after the initial election of
Trustees by the Shareholders, the term of office of any incumbent Trustee
shall continue until the termination of this Trust or his earlier death,
resignation, retirement, bankruptcy, adjudicated incompetency or other
incapacity or removal, or if not so terminated, until the election of such
Trustee's successor in office has become effective in accordance with this
subsection (c).
(d) Resignation and Retirement. Any Trustee may resign his trust or
retire as a Trustee, by a written instrument signed by him and delivered to
the other Trustees or to any officer of the Trust, and such resignation or
retirement shall take effect upon such delivery or upon such later date as
is specified in such instrument.
(e) Removal. Any Trustee may be removed with or without cause at any
time: (i) by written instrument, signed by at least two-thirds (2/3) of the
number of Trustees in office prior to such removal, specifying the date
upon which such removal shall become effective; or (ii) by vote of
Shareholders holding not less than two-thirds (2/3) of the Shares of each
Series then outstanding, cast in person or by proxy at any meeting called
for the purpose; or (iii) by a written declaration signed by Shareholders
holding not less than two-thirds (2/3) of the Shares of each Series then
outstanding and filed with the Trust's Custodian.
(f) Vacancies. Any vacancy or anticipated vacancy resulting from any
reason, including an increase in the number of Trustees, may (but need not
unless required by the ▇▇▇▇ ▇▇▇) be filled by a Majority of the Trustees,
subject to the provisions of Section 16(a) of the 1940 Act, through the
appointment in writing of such other individual as such remaining Trustees
in their discretion shall determine; provided, that if there shall be no
Trustees in office, such vacancy or vacancies shall be filled by vote of
the Shareholders. Any such appointment or election shall be effective upon
such individual's written acceptance of his appointment as a Trustee and
his agreement to be bound by the provisions of this Declaration, except
that any such appointment in anticipation of a vacancy to occur by reason
of retirement, resignation or increase in the number of Trustees to be
effective at a later date shall become effective only at or after the
effective date of said retirement, resignation or increase in the number of
Trustees.
(g) Acceptance of Trusts. Any individual appointed as a Trustee under
subsection (f), and any individual elected as a Trustee under subsection
(c), of this Section 4.1 who was not, immediately prior to such election,
acting as a Trustee, shall accept such appointment or election in writing
and agree in such writing to be bound by the provisions hereof, and
whenever such individual shall have executed such writing and any
conditions to such appointment or election shall have been satisfied, such
individual shall become a Trustee and the Trust Property shall vest in the
new Trustee, together with the continuing Trustees, without any further act
or conveyance.
(h) Effect of Death, Resignation, etc. No vacancy, whether resulting
from the death, resignation, retirement, removal or incapacity of any
Trustee, an increase in the number of Trustees or otherwise, shall operate
to annul or terminate the Trust hereunder or to revoke or terminate any
existing agency or contract created or entered into pursuant to the terms
of this Declaration. Until such vacancy is filled as provided in this
Section 4.1, the Trustees in office (if any), regardless of their number,
shall have all the powers granted to the Trustees and shall discharge all
the duties imposed upon the Trustees by this Declaration. A written
instrument certifying the existence of such vacancy signed by a Majority of
the Trustees shall be conclusive evidence of the existence of such vacancy.
(i) Conveyance. In the event of the resignation or removal of a
Trustee or his otherwise ceasing to be a Trustee, such former Trustee or
his legal representative shall, upon request of the continuing Trustees,
execute and deliver such documents as may be required for the purpose of
consummating or evidencing the conveyance to the Trust or the remaining
Trustees of any Trust Property held in such former Trustee's name, but the
execution and delivery of such documents shall not be requisite to the
vesting of title to the Trust Property in the remaining Trustees, as
provided in subsection (g) of this Section 4.1 and in Section 4.13 hereof.
(j) No Accounting. Except to the extent required by the 1940 Act or
under circumstances which would justify his removal for cause, no Person
ceasing to be a Trustee (nor the estate of any such Person) shall be
required to make an accounting to the Shareholders or remaining Trustees
upon such cessation.
SECTION 4.2 Trustees' Meetings; Participation by Telephone, etc. An annual
meeting of Trustees shall be held not later than the last day of the fourth
month after the end of each fiscal year of the Trust and special meetings may be
held from time to time, in each case, upon the call of such officers as may be
thereunto authorized by the By-Laws or vote of the Trustees, or by any two (2)
Trustees, or pursuant to a vote of the Trustees adopted at a duly constituted
meeting of the Trustees, and upon such notice as shall be provided in the
By-Laws. The Trustees may act with or without a meeting, and a written consent
to any matter, signed by a Majority of the Trustees, shall be equivalent to
action duly taken at a meeting of the Trustees, duly called and held. Except as
otherwise provided by the 1940 Act or other applicable law, or by this
Declaration or 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 (a quorum,
consisting of at least a Majority of the Trustees, being present), within or
without Massachusetts. If authorized by the By-Laws, all or any one or more
Trustees may participate in a meeting of the Trustees or any Committee thereof
by means of conference telephone or similar means of communication by means of
which all Persons participating in the meeting can hear each other, and
participation in a meeting pursuant to such means of communication shall
constitute presence in person at such meeting. The minutes of any meeting thus
held shall be prepared in the same manner as a meeting at which all participants
were present in person.
SECTION 4.3 Committees; Delegation. The Trustees shall have power,
consistent with their ultimate responsibility to supervise the affairs of the
Trust, to delegate from time to time to an Executive Committee, and to one or
more other Committees, or to any single Trustee, the doing of such things and
the execution of such deeds or other instruments, either in the name of the
Trust or the names of the Trustees or as their attorney or attorneys in fact, or
otherwise as the Trustees may from time to time deem expedient, and any
agreement, deed, mortgage, lease or other instrument or writing executed by the
Trustee or Trustees or other Person to whom such delegation was made shall be
valid and binding upon the Trustees and upon the Trust.
SECTION 4.4 Officers. The Trustees shall annually elect such officers or
agents, who shall have such powers, duties and responsibilities as the Trustees
may deem to be advisable, and as they shall specify by resolution or in the
By-Laws. Except as may be provided in the By-
Laws, any officer elected by the Trustees may be removed at any time with or
without cause. Any two (2) or more offices may be held by the same individual.
SECTION 4.5 Compensation of Trustees and Officers. The Trustees shall fix
the compensation of all officers and Trustees. Without limiting the generality
of any of the provisions hereof, the Trustees shall be entitled to receive
reasonable compensation for their general services as such, and to fix the
amount of such compensation, and to pay themselves or any one or more of
themselves such compensation for special services, including legal, accounting,
or other professional services, as they in good faith may deem reasonable. No
Trustee or officer resigning and (except where a right to receive compensation
for a definite future period shall be expressly provided in a written agreement
with the Trust, duly approved by the Trustees) no Trustee or officer removed
shall have any right to any compensation as such Trustee or officer for any
period following his resignation or removal, or any right to damages on account
of his removal, whether his compensation be by the month, by the year or
otherwise.
SECTION 4.6 Ownership of Shares and Securities of the Trust. Any Trustee,
and any officer, employee or agent of the Trust, and any organization in which
any such Person is interested, may acquire, own, hold and dispose of Shares of
any Series and other Securities of the Trust for his or its individual account,
and may exercise all rights of a holder of such Shares or Securities to the same
extent and in the same manner as if such Person were not such a Trustee,
officer, employee or agent of the Trust; subject, in the case of Trustees and
officers, to the same limitations as directors or officers (as the case may be)
of a Massachusetts business corporation; and the Trust may issue and sell or
cause to be issued and sold and may purchase any such Shares or other Securities
from any such Person or any such organization, subject only to the general
limitations, restrictions or other provisions applicable to the sale or purchase
of Shares of such Series or other Securities of the Trust generally.
SECTION 4.7 Right of Trustees and Officers to Own Property and to Engage in
Business; Authority of Trustees to Permit Others to do Likewise. The Trustees,
in their capacity as Trustees, and (unless otherwise specifically directed by
vote of the Trustees) the officers of the Trust in their capacity as such, shall
not be required to devote their entire time to the business and affairs of the
Trust. Except as otherwise specifically provided by vote of the Trustees, or by
agreement in any particular case, any Trustee or officer of the Trust may
acquire, own, hold and dispose of, for his own individual account, any property,
and acquire, own, hold, carry on and dispose of, for his own individual account,
any business entity or business activity, whether similar or dissimilar to any
property or business entity or business activity invested in or carried on by
the Trust, and without first offering the same as an investment opportunity to
the Trust, and may exercise all rights in respect thereof as if he were not a
Trustee or officer of the Trust. The Trustees shall also have power, generally
or in specific cases, to permit employees or agents of the Trust to have the
same rights (or lesser rights) to acquire, hold, own and dispose of property and
businesses, to carry on businesses, and to accept investment opportunities
without offering them to the Trust, as the Trustees have by virtue of this
Section 4.7.
SECTION 4.8 Reliance on Experts. The Trustees and officers may consult with
counsel, engineers, brokers, appraisers, auctioneers, accountants, investment
bankers, securities analysts or other Persons (any of which may be a firm in
which one or more of the Trustees or officers is or are members or otherwise
interested) whose profession gives authority to a
statement made by them on the subject in question, and who are reasonably deemed
by the Trustees or officers in question to be competent, and the advice or
opinion of such Persons shall be full and complete personal protection to all of
the Trustees and officers in respect of any action taken or suffered by them in
good faith and in reliance on or in accordance with such advice or opinion. In
discharging their duties, Trustees and officers, when acting in good faith, may
rely upon financial statements of the Trust represented to them to be correct by
any officer of the Trust having charge of its books of account, or stated in a
written report by an independent certified public accountant fairly to present
the financial position of the Trust. The Trustees and officers may rely, and
shall be personally protected in acting, upon any instrument or other document
believed by them to be genuine.
SECTION 4.9 Surety Bonds. No Trustee, officer, employee or agent of the
Trust shall, as such, be obligated to give any bond or surety or other security
for the performance of any of his duties, unless required by applicable law or
regulation, or unless the Trustees shall otherwise determine in any particular
case.
SECTION 4.10 Apparent Authority of Trustees and Officers. No purchaser,
lender, transfer agent or other Person dealing with the Trustees or any officer
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 such officer, or to make
inquiry concerning or be liable for the application of money or property paid,
loaned or delivered to or on the order of the Trustees or of such officer.
SECTION 4.11 Other Relationships Not Prohibited. The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager,
adviser, principal underwriter or distributor or agent of or for any
Contracting Party (as defined in Section 5.2 hereof), or of or for any
parent or affiliate of any Contracting Party, or that the Contracting Party
or any parent or affiliate thereof is a Shareholder or has an interest in
the Trust or any Portfolio, or that
(ii) any Contracting Party may have a contract providing for the
rendering of any similar services to one or more other corporations,
trusts, associations, partnerships, limited partnerships or other
organizations, or have other business or interests,
shall not affect the validity of any contract for the performance and assumption
of services, duties and responsibilities to, for or of the Trust and/or the
Trustees or disqualify any Shareholder, Trustee or officer of the Trust from
voting upon or executing the same or create any liability or accountability to
the Trust or to the holders of Shares of any Series; provided, that, in the case
of any relationship or interest referred to in the preceding clause (i) on the
part of any Trustee or officer of the Trust, either (x) the material facts as to
such relationship or interest have been disclosed to or are known by the
Trustees not having any such relationship or interest and the contract involved
is approved in good faith by a majority of such Trustees not having any such
relationship or interest (even though such unrelated or disinterested Trustees
are less than a quorum of all of the Trustees), (y) the material facts as to
such relationship or interest and as to the contract have been disclosed to or
are known by the Shareholders entitled to vote
thereon and the contract involved is specifically approved in good faith by vote
of the Shareholders, or (z) the specific contract involved is fair to the Trust
as of the time it is authorized, approved or ratified by the Trustees or by the
Shareholders.
SECTION 4.12 Payment of Trust Expenses. 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, and according to any allocation to
particular Portfolios made by them pursuant to Section 6.2(b) hereof, all
expenses, fees, charges, taxes and liabilities incurred or arising in connection
with the business and affairs of 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, Administrator, Distributor, Principal Underwriter, auditor,
counsel, Custodian, Transfer Agent, Dividend Disbursing Agent, Accounting Agent,
Shareholder Servicing Agent, and such other agents, consultants, and independent
contractors and such other expenses and charges as the Trustees may deem
necessary or proper to incur.
SECTION 4.13 Ownership of the Trust Property. Legal title to all the 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 of any particular Portfolio, or in the name of any other Person as nominee,
on such terms as the Trustees may determine; provided, that the interest of the
Trust and of the respective Portfolio therein is appropriately protected. 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
termination of the term of office of a Trustee as provided in Section 4.1(c),
(d) or (e) hereof, 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 pursuant
to Section 4.1(i) hereof.
ARTICLE 5
DELEGATION OF MANAGERIAL RESPONSIBILITIES
SECTION 5.1 Appointment; Action by Less than All Trustees. The Trustees
shall be responsible for the general operating policy of the Trust and for the
general supervision of the business of the Trust conducted by officers, agents,
employees or advisers of the Trust or by independent contractors, but the
Trustees shall not be required to conduct all the business of the Trust in
person, and, consistent with their ultimate responsibility as stated herein, the
Trustees may appoint, employ or contract with one or more officers, employees
and agents to conduct, manage and/or supervise the operations of the Trust, and
may grant or delegate such authority to such officers, employees and/or agents
as the Trustees may, in their sole discretion, deem to be necessary or
desirable, without regard to whether such authority is normally granted or
delegated by trustees. With respect to those matters of the operation and
business of the Trust which they shall elect to conduct themselves, except as
otherwise provided by this Declaration or the By-Laws, if any, the Trustees may
authorize any single Trustee or defined group of Trustees, or any committee
consisting of a number of Trustees less than the whole number of Trustees
then in office without specification of the particular Trustees required to be
included therein, to act for and to bind the Trust, to the same extent as the
whole number of Trustees could do, either with respect to one or more particular
matters or classes of matters, or generally.
SECTION 5.2 Certain Contracts. Subject to compliance with the provisions of
the 1940 Act, but notwithstanding any limitations of present and future law or
custom in regard to delegation of powers by trustees generally, the Trustees
may, at any time and from time to time in their discretion and without limiting
the generality of their powers and authority otherwise set forth herein, enter
into one or more contracts with any one or more corporations, trusts,
associations, partnerships, limited partnerships or other types of
organizations, or individuals ("Contracting Party"), to provide for the
performance and assumption of some or all of the following services, duties and
responsibilities to, for or on behalf of the Trust and/or any Portfolio, and/or
the Trustees, and to provide for the performance and assumption of such other
services, duties and responsibilities in addition to those set forth below, as
the Trustees may deem appropriate:
(a) Advisory. One or more investment advisory or management
agreements, each with an investment manager or adviser (each, an
"Investment Adviser"), whereby the Investment Adviser shall undertake to
furnish the Trust such management, investment advisory or supervisory,
administrative, accounting, legal, statistical and research facilities and
services, and such other facilities and services, if any, as the Trustees
shall from time to time consider desirable, all upon such terms and
conditions as the Trustees may in their discretion determine to be not
inconsistent with this Declaration, the applicable provisions of the 1940
Act or any applicable provisions of the By-Laws. Any such advisory or
management agreement and any amendment thereto shall be subject to approval
by a Majority Shareholder Vote at a meeting of the Shareholders of the
Trust. Notwithstanding any provisions of this Declaration, the Trustees may
authorize the Investment Adviser (subject to such general or specific
instructions as the Trustees may from time to time adopt) to effect
purchases, sales, loans or exchanges of portfolio securities of the Trust
on behalf of the Trustees or may authorize any officer or employee of the
Trust or any 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 such purchases, sales, loans and
exchanges shall be deemed to have been authorized by all of the Trustees.
The Trustees may, in their sole discretion, call a meeting of Shareholders
in order to submit to a vote of Shareholders at such meeting the approval
of continuance of any such investment advisory or management agreement. If
the Shareholders of any Portfolio should fail to approve any such
investment advisory or management agreement, the Investment Adviser may
nonetheless serve as Investment Adviser with respect to any other Portfolio
whose Shareholders shall have approved such contract.
(b) Administration. One or more agreements, each with a provider of
administrative and clerical services whereby the other party shall, as
agent for the Trustees, but subject to the general supervision of the
Trustees and in conformity with any policies of the Trustees with respect
to the operations of the Trust and each Portfolio, will supervise all or
any part of the operations of the Trust and each Portfolio, and will
provide all or any part of the administrative and clerical personnel,
office space and office equipment
and services appropriate for the efficient administration and operations of
the Trust and each Portfolio (any such agent being herein referred to as an
"Administrator").
(c) Distribution. One or more agreements, each with a broker or dealer
in securities, providing for the sale of Shares of any one or more Series
to net the Trust not less than the net asset value per Share (as described
in Section 6.2(g) hereof) and pursuant to which the Trust may appoint the
other party to such agreement as its principal underwriter or sales agent
for the distribution of such Shares. The agreement shall contain such terms
and conditions as the Trustees may in their discretion determine to be not
inconsistent with this Declaration, the applicable provisions of the 1940
Act and any applicable provisions of the By-Laws (any such agent being
herein referred to as a "Principal Underwriter" or a "Distributor", as the
case may be).
(d) Custodian. One or more agreements, each with a bank or trust
company having an aggregate capital, surplus and undivided profits (as
shown in its last published report) of at least two million dollars
($2,000,000) as custodian of the Securities and cash of the Trust and of
each Portfolio and of the accounting records in connection therewith (any
such bank or trust company so appointed being herein referred to as a
"Custodian").
(e) Transfer and Dividend Disbursing Agency. One or more agreements,
each with an agent to maintain records of the ownership of outstanding
Shares, and the issuance and redemption and the transfer thereof (any such
agent being herein referred to as a "Transfer Agent"), and to disburse any
dividends declared by the Trustees and in accordance with the policies of
the Trustees and/or the instructions of any particular Shareholder to
reinvest any such dividends (any such agent being herein referred to as a
"Dividend Disbursing Agent").
(f) Shareholder Servicing. One or more agreements, each with an agent
to provide service with respect to the relationship of the Trust and its
Shareholders, records with respect to Shareholders and their Shares, and
similar matters (any such agent being herein referred to as a "Shareholder
Servicing Agent").
(g) Accounting. An agreement with an agent to handle all or any part
of the accounting responsibilities, whether with respect to the Trust's
properties, Shareholders or otherwise (any such agent being herein referred
to as an "Accounting Agent").
The same Person may be the Contracting Party for some or all of the services,
duties and responsibilities to, for and of the Trust and/or the Trustees, and
the contracts with respect thereto may contain such terms interpretive of or in
addition to the delineation of the services, duties and responsibilities
provided for, including provisions that are not inconsistent with the 1940 Act
relating to the standard of duty of and the rights to indemnification of the
Contracting Party and others, as the Trustees may determine. Nothing herein
shall preclude, prevent or limit the Trust or a Contracting Party from entering
into sub-contractual arrangements relative to any of the matters referred to in
subsections (a) through (g) of this Section 5.2.
ARTICLE 6
PORTFOLIOS AND SHARES
SECTION 6.1 Description of Portfolios and Shares.
(a) Shares; Portfolios; Series of Shares. The beneficial interest in
the Trust shall be divided into Shares [having a nominal or par value of
one cent ($.01) per Share, of which an unlimited number may be issued.
Without limitation of any other powers accorded to them by Article 3 of
this Declaration or otherwise, the Trustees shall have the power and
authority (without any requirement of Shareholder approval), at any time or
from time to time,
(i) to establish and designate one or more separate, distinct and
independent Portfolios, in addition to the Aggressive Growth
Portfolio established and designated in Section 6.2 hereof, into
which the assets of the Trust shall be divided;
(ii) to authorize a separate Series of Shares for each such additional
Portfolio (each of which Series shall represent beneficial interests
only in the Portfolio with respect to which such Series was
authorized);
(iii) to fix and determine the relative rights and preferences of Shares of
the respective Series as to rights of redemption and the price, terms
and manner of redemption, special and relative rights as to dividends
and other distributions and on liquidation, sinking or purchase fund
provisions, conversion rights, and conditions under which the
Shareholders of the several Series shall have separate voting rights
or no voting rights; and
(iv) to classify or reclassify any unissued Shares, or any Shares of any
Series previously issued and reacquired by the Trust, into Shares of
one or more other Series that may be established and designated from
time to time.
Except as otherwise provided as to a particular Portfolio herein or in the
Certificate of Designation therefor, the Trustees shall have all the rights
and powers, and be subject to all the duties and obligations, with respect
to each such Portfolio and the assets and affairs thereof as they have
under this Declaration with respect to the Trust and the Trust Property in
general.
(b) Establishment, etc. of Additional Portfolios; Authorization of
Shares. The establishment and designation of any Portfolio (in addition to
the Aggressive Growth Portfolio established and designated in Section 6.2
hereof) and of the Series of Shares representing the beneficial interests
therein shall be effective upon the execution by a Majority of the Trustees
(or by an officer of the Trust pursuant to the vote of a Majority of the
Trustees) of an instrument setting forth such establishment and designation
and the relative rights and preferences of the Shares of such Series and
the manner in which the same may be amended (a "Certificate of
Designation"), which may provide that the number of Shares of such Series
that may be issued is unlimited, or may limit the
number issuable. At any time at which no Shares of a Series (including the
Aggressive Growth Series established and designated in Section 6.2 hereof)
are outstanding, the Trustees may terminate such Series and the Portfolio
to which it pertains by an instrument so providing which is executed by a
Majority of the Trustees, or by an officer of the Trust pursuant to the
vote of a Majority of the Trustees (a "Certificate of Termination"). Each
Certificate of Designation or Certificate of Termination, and any
instrument amending a Certificate of Designation, shall have the status of
an amendment to this Declaration, and shall be filed as provided in Section
9.4 hereof, but such filing shall not be a prerequisite to the
effectiveness thereof.
(c) Character of Separate Portfolios and Shares Thereof. Each
Portfolio established hereunder shall be a separate component of the assets
of the Trust, and the holders of Shares of the Series representing the
beneficial interests in that Portfolio shall be considered Shareholders of
such Portfolio, and also as Shareholders of the Trust for purposes of
receiving reports and notices and (except as otherwise provided herein or
in the Certificate of Designation of a particular Portfolio as to such
Portfolio, or as required by the 1940 Act or other applicable law) the
right to vote, all without distinction by Series.
(d) Consideration for Shares. The Trustees may issue Shares of any
Series for such consideration (which may include property subject to, or
acquired in connection with the assumption of, liabilities) and on such
terms as they may determine (or for no consideration if pursuant to a Share
dividend or split-up), all without action or approval of the Shareholders.
All Shares when so issued on the terms determined by the Trustees shall be
fully paid and non-assessable (but may be subject to mandatory contribution
back to the Trust as provided in Section 6.2(h) hereof).
SECTION 6.2 Establishment and Designation of the Aggressive Growth
Portfolio and of the Shares Thereof; General Provisions for All Portfolios.
Without limiting the authority of the Trustees set forth in Section 6.1(a)
hereof to establish and designate further Portfolios, there are hereby
established and designated the Aggressive Growth Portfolio and the Shares
thereof, which shall be known as the Aggressive Growth Series; an unlimited
number of Shares of such Series may be issued. Subject to the power of the
Trustees to classify or reclassify any unissued Shares of a Series pursuant to
Section 6.1(a) above, such Portfolio, and any further Portfolios that may from
time to time be established and designated by the Trustees, and the Shares
representing the beneficial interests therein, shall (unless the Trustees
otherwise determine with respect to some further Portfolio at the time of
establishing and designating the same) have the following relative rights and
preferences:
(a) Assets Belonging to Portfolios. Any portion of the Trust Property
allocated to a particular Portfolio, and all consideration received by the
Trust for the issue or sale of Shares of such Portfolio, together with all
assets in which such consideration is invested or reinvested, all interest,
dividends, income, earnings, profits and gains therefrom, and proceeds
thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall be
held by the Trustees in trust for the benefit of the holders of Shares of
that Portfolio and shall irrevocably belong to that
Portfolio for all purposes, and shall be so recorded upon the books of
account of the Trust, and the Shareholders of such Portfolio shall not
have, and shall be conclusively deemed to have waived, any claims to the
assets of any Portfolio of which they are not Shareholders. Such
consideration, assets, interest, dividends, income, earnings, profits,
gains and proceeds, together with any General Items allocated to that
Portfolio as provided in the following sentence, are herein referred to
collectively as "Portfolio Assets" of such Portfolio, and as assets
"belonging to" that Portfolio. If the Trust shall have or realize any
assets, income, interest, dividends, earnings, profits, gains or proceeds
which are not readily identifiable as belonging to any particular Portfolio
(collectively "General Items"), the Trustees shall allocate such General
Items to and among any one or more of the Portfolios of the Trust in such
manner and on such basis as they, in their sole discretion, deem fair and
equitable; and any General Items so allocated to a particular Portfolio
shall belong to and be part of the Portfolio Assets of that Portfolio. Each
such allocation by the Trustees shall be conclusive and binding upon the
Shareholders of all Portfolios for all purposes.
(b) Liabilities of Portfolios. The assets belonging to each Portfolio
shall be charged with the liabilities incurred by or arising in respect of
that Portfolio and all expenses, costs, charges and reserves attributable
to that Portfolio, and at any time at which the Trust shall have more than
one Portfolio, any general liabilities, expenses, costs, charges or
reserves which are not readily identifiable as pertaining to any particular
Portfolio shall be allocated and charged by the Trustees to and among any
one or more of the Portfolios of the Trust in such manner and on such basis
as the Trustees in their sole discretion deem fair and equitable. The
liabilities, expenses, costs, charges and reserves so allocated and so
charged to a particular Portfolio are herein referred to as "liabilities
of" that Portfolio. Each allocation of liabilities, expenses, costs,
charges and reserves by the Trustees shall be conclusive and binding upon
the Shareholders of all Portfolios for all purposes. The creditors of a
particular Portfolio may look only to the assets of that Portfolio to
satisfy such creditors' claims.
(c) Dividends. Dividends and distributions on Shares of any Series may
be paid with such frequency as the Trustees may determine, which may be
daily or otherwise pursuant to a standing resolution or resolutions adopted
only once or with such frequency as the Trustees may determine, to the
Shareholders of that Series, from such of the income, accrued or realized,
and capital gains, realized or unrealized, and out of the assets belonging
to the Portfolio to which such Series pertains, as the Trustees may
determine, after providing for actual and accrued liabilities of that
Portfolio. All dividends and distributions on Shares of any Series shall be
distributed pro rata to the holders of Shares of that Series in proportion
to the number of such Shares held by such holders at the date and time of
record established for the payment of such dividends or distributions,
except that the Trustees may determine, in connection with any dividend or
distribution program or procedure, that no dividend or distribution shall
be payable on newly-issued Shares as to which the Shareholder's purchase
order and/or payment have not been received by the time or times
established by the Trustees under such program or procedure, or that
dividends or distributions shall be payable on Shares which have been
tendered by the holder thereof for redemption or repurchase, but the
redemption or repurchase proceeds of which have not yet been paid to such
Shareholder. Dividends and distributions on the
Shares of a Series may be made in cash or Shares of that Series or a
combination thereof as determined by the Trustees, or pursuant to any
program that the Trustees may have in effect at the time for the election
by each Shareholder of the mode of the making of such dividend or
distribution to that Shareholder. Any such dividend or distribution paid in
Shares will be paid at the net asset value thereof as determined in
accordance with subsection (g) of this Section 6.2.
(d) Liquidation. In the event of the liquidation or dissolution of the
Trust, the Shareholders of each Portfolio with outstanding Shares shall be
entitled to receive, when and as declared by the Trustees, the excess of
the Portfolio Assets of such Portfolio over the liabilities of such
Portfolio. The assets so distributable to the Shareholders of any Portfolio
shall be distributed among such Shareholders in proportion to the number of
Shares of that Portfolio held by them and recorded on the books of the
Trust. The liquidation of any Portfolio may be authorized by vote of a
Majority of the Trustees, subject to the affirmative vote of "a majority of
the outstanding voting securities" of the Series representing the
beneficial interests in that Portfolio, as the quoted phrase is defined in
the 1940 Act, determined in accordance with clause (iii) of the definition
of "Majority Shareholder Vote" in Section 1.4 hereof.
(e) Redemption by Shareholder. Each holder of Shares of any Series
shall have the right at such times as may be permitted by the Trust, but no
less frequently than once each week, to require the Trust to redeem all or
any part of such Shares at a redemption price equal to the net asset value
per Share of that Series next determined in accordance with subsection (g)
of this Section 6.2 after the Shares are properly tendered for redemption;
provided, that the Trustees may from time to time, in their discretion,
determine and impose a fee for such redemption. The redemption price of
Shares redeemed under this subsection (e) shall be paid in cash; provided,
however, that if the Trustees determine, which determination shall be
conclusive, that conditions exist with respect to any Series of Shares
which make payment wholly in cash unwise or undesirable, the Trust may make
payment wholly or partly in Securities or other assets belonging to the
Portfolio to which such Series pertains, at the value of such Securities or
assets used in such determination of net asset value. Notwithstanding the
foregoing, the Trust may postpone payment of the redemption price and may
suspend the right of the holders of Shares of any Series to require the
Trust to redeem such Shares during any period or at any time when and to
the extent permissible under the 1940 Act.
(f) Redemption at the Option of the Trust. Each Share of any Series
shall be subject to redemption at the option of the Trust at the redemption
price which would be applicable if such Share were then being redeemed by
the Shareholder pursuant to subsection (e) of this Section 6.2: (i) at any
time, if the Trustees determine in their sole discretion that failure to so
redeem may have materially adverse consequences to the holders of the
Shares of the Trust, generally, or of any Portfolio thereof, or (ii) upon
such other conditions with respect to maintenance of Shareholder accounts
of a minimum amount as may from time to time be determined by the Trustees
and set forth in the then current Prospectus of such Portfolio. Upon such
redemption the holders of the Shares so redeemed shall have no further
right with respect thereto other than to receive payment of such redemption
price.
(g) Net Asset Value. The net asset value per Share of any Series at
any time shall be the quotient obtained by dividing the then value of the
net assets of the Portfolio to which such Series pertains (being the
current value of the assets then belonging to such Portfolio, less its then
existing liabilities) by the total number of Shares of that Series then
outstanding, all determined in accordance with the methods and procedures,
including without limitation those with respect to rounding, established by
the Trustees from time to time. The Trustees may determine to maintain the
net asset value per Share of any Portfolio at a designated constant dollar
amount and in connection therewith may adopt procedures not inconsistent
with the 1940 Act for the continuing declaration of income attributable to
that Portfolio as dividends payable in additional Shares of that Portfolio
at the designated constant dollar amount and for the handling of any losses
attributable to that Portfolio. Such procedures may provide that in the
event of any loss each Shareholder shall be deemed to have contributed to
the shares of beneficial interest account of that Portfolio such
Shareholder's pro rata portion of the total number of Shares required to be
canceled in order to permit the net asset value per Share of that Portfolio
to be maintained, after reflecting such loss, at the designated constant
dollar amount. Each Shareholder of the Trust shall be deemed to have
expressly agreed, by investing in any Portfolio with respect to which the
Trustees shall have adopted any such procedure, to make the contribution
referred to in the preceding sentence in the event of any such loss.
(h) Transfer. All Shares of the Trust shall be transferable, but
transfers of Shares of a particular Series will be recorded on the Share
transfer records of the Trust applicable to that Series only at such times
as Shareholders shall have the right to require the Trust to redeem Shares
of that Series and at such other times as may be permitted by the Trustees.
(i) Equality. All Shares of each Series shall represent an equal
proportionate interest in the assets belonging to the Portfolio to which
such Series pertains (subject to the liabilities of that Portfolio), and
each Share of any such Series shall be equal to each other Share thereof.
The Trustees may from time to time divide or combine the Shares of any
Series into a greater or lesser number of Shares of that Series without
thereby changing the proportionate beneficial interest in the assets
belonging to the Portfolio to which such Series pertains, or in any way
affecting the rights of the holders of Shares of any other Series.
(j) Rights of Fractional Shares. Any fractional Share of any Series of
Shares shall carry proportionately all the rights and obligations of a
whole Share of that Series, including rights and obligations with respect
to voting, receipt of dividends and distributions, redemption of Shares,
and liquidation of the Trust or of the Portfolio to which such Class
pertains.
(k) Conversion Rights. Subject to compliance with the requirements of
the 1940 Act, the Trustees shall have the authority to provide that holders
of Shares of any Series shall have the right to convert said Shares into
Shares of one or more other Series of the Trust in accordance with such
requirements and procedures as the Trustees may establish.
SECTION 6.3 Ownership of Shares. The ownership of Shares shall be recorded
on the books of the Trust or of a Transfer Agent or similar agent for the Trust,
which books shall be maintained separately for the Shares of each Series that
has been authorized. Certificates evidencing the ownership of Shares need not be
issued except as the Trustees may otherwise determine from time to time, and the
Trustees shall have power to call outstanding Share certificates and to replace
them with book entries. The Trustees may make such rules as they consider
appropriate for the issuance of Share certificates, the use of facsimile
signatures, the transfer of Shares and similar matters. The record books of the
Trust as kept by the Trust or any Transfer Agent or similar agent, as the case
may be, shall be conclusive as to who are the Shareholders and as to the number
of Shares of each Series held from time to time by each such Shareholder.
The holders of Shares of each Portfolio shall upon demand disclose to the
Trustees in writing such information with respect to their direct and indirect
ownership of Shares of such Portfolio as the Trustees deem necessary to comply
with the provisions of the Internal Revenue Code, or to comply with the
requirements of any other authority.
SECTION 6.4 Investments in the Trust. The Trustees may accept investments
in any Portfolio of the Trust from such Persons and on such terms and for such
consideration, not inconsistent with the provisions of the 1940 Act, as they
from time to time authorize. The Trustees may authorize any Distributor,
Principal Underwriter, Custodian, Transfer Agent or other Person to accept
orders for the purchase of Shares that conform to such authorized terms and to
reject any purchase orders for Shares, whether or not conforming to such
authorized terms.
SECTION 6.5 No Pre-emptive Rights. No Shareholder, by virtue of holding
Shares of any Series, shall have any pre-emptive or other right to subscribe to
any additional Shares of that Series, or to any shares of any other Series, or
any other Securities issued by the Trust.
SECTION 6.6 Status of Shares. 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. Shares shall be deemed to be personal
property, giving only the rights provided herein. 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. The death of a Shareholder during the continuance of the Trust shall
not operate to terminate the Trust or any Portfolio, 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 Declaration.
ARTICLE 7
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 7.1 Voting Powers. The Shareholders shall have power to vote only
(i) for the election or removal of Trustees as provided in Sections 4.1(c) and
(e) hereof, (ii) with respect to the approval or termination in accordance with
the 1940 Act of any contract with a Contracting Party as provided in Section 5.2
hereof as to which Shareholder approval is required by the 1940 Act, (iii) with
respect to any termination or reorganization of the Trust or any
Portfolio to the extent and as provided in Sections 9.1 and 9.2 hereof, (iv)
with respect to any amendment of this Declaration to the extent and as provided
in Section 9.3 hereof, (v) to the same extent as the stockholders of a
Massachusetts business corporation as to whether or not a court action,
proceeding or claim should or should not be brought or maintained derivatively
or as a class action on behalf of the Trust or any Portfolio, or the
Shareholders of any of them (provided, however, that a Shareholder of a
particular Portfolio shall not in any event be entitled to maintain a derivative
or class action on behalf of any other Portfolio or the Shareholders thereof),
and (vi) with respect to such additional matters relating to the Trust as may be
required by the 1940 Act, this Declaration, the By-Laws or any registration of
the Trust with the Commission (or any successor agency) or any State, or as the
Trustees may consider necessary or desirable. If and to the extent that the
Trustees shall determine that such action is required by law or by this
Declaration, they shall cause each matter required or permitted to be voted upon
at a meeting or by written consent of Shareholders to be submitted to a separate
vote of the outstanding Shares of each Portfolio entitled to vote thereon;
provided, that (i) when expressly required by the 1940 Act or by other law,
actions of Shareholders shall be taken by Single Class Voting of all outstanding
Shares of each Series whose holders are entitled to vote thereon; and (ii) when
the Trustees determine that any matter to be submitted to a vote of Shareholders
affects only the rights or interests of Shareholders of one or more but not all
Portfolios (including without limitation any distribution plan pursuant to Rule
12b-1 under the 1940 Act applicable to any such Portfolio), then only the
Shareholders of the Portfolios so affected shall be entitled to vote thereon.
SECTION 7.2 Number of Votes and Manner of Voting; Proxies. On each matter
submitted to a vote of the Shareholders, each holder of Shares of any Series
shall be entitled to a number of votes equal to the number of Shares of such
Series standing in such Shareholder's name on the books of the Trust. 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
(2) or more Persons shall be valid if executed by any one of them unless at or
prior to exercise of the proxy the Trust receives a specific written notice to
the contrary from any one of them. A proxy purporting to be executed by or on
behalf of a Shareholder shall be deemed valid unless challenged at or prior to
its exercise and the burden of proving invalidity shall rest on the challenger.
Until Shares are issued, the Trustees may exercise all rights of Shareholders
and may take any action required by law, this Declaration or the By-Laws to be
taken by Shareholders.
SECTION 7.3 Meetings. Meetings of Shareholders may be called by the
Trustees from time to time for the purpose of taking action upon any matter
requiring the vote or authority of the Shareholders as herein provided, or upon
any other matter deemed by the Trustees to be necessary or desirable. Written
notice of any meeting of Shareholders shall be given or caused to be given by
the Trustees by mailing such notice at least seven (7) days before such meeting,
postage prepaid, stating the time, place and purpose of the meeting, to each
Shareholder at the Shareholder's address as it appears on the records of the
Trust. The Trustees shall promptly call and give notice of a meeting of
Shareholders for the purpose of voting upon removal of any Trustee of the Trust
when requested to do so in writing by Shareholders holding not less than ten
percent (10%) of the Shares then outstanding. If the Trustees shall fail to call
or give notice of any meeting of Shareholders for a period of thirty (30) days
after written application by Shareholders holding at least ten percent (10%) of
the Shares then outstanding requesting that
a meeting be called for any other purpose requiring action by the Shareholders
as provided herein or in the By-Laws, then Shareholders holding at least ten
percent (10%) of the Shares then outstanding may call and give notice of such
meeting, and thereupon the meeting shall be held in the manner provided for
herein in case of call thereof by the Trustees.
SECTION 7.4 Record Dates. For the purpose of determining the Shareholders
who are entitled to vote or act at any meeting or any adjournment thereof, or
who are entitled to participate in any dividend or distribution, or for the
purpose of any other action, the Trustees may from time to time close the
transfer books for such period, not exceeding thirty (30) days (except at or in
connection with the termination of the Trust), as the Trustees may determine; or
without closing the transfer books the Trustees may fix a date and time not more
than sixty (60) days prior to the date of any meeting of Shareholders or other
action as the date and time of record for the determination of Shareholders
entitled to vote at such meeting or any adjournment thereof or to be treated as
Shareholders of record for purposes of such other action, and any Shareholder
who was a Shareholder at the date and time so fixed shall be entitled to vote at
such meeting or any adjournment thereof or to be treated as a Shareholder of
record for purposes of such other action, even though he has since that date and
time disposed of his Shares, and no Shareholder becoming such after that date
and time shall be so entitled to vote at such meeting or any adjournment thereof
or to be treated as a Shareholder of record for purposes of such other action.
SECTION 7.5 Quorum and Required Vote. A majority of the Shares entitled to
vote on a matter shall be a quorum for the transaction of business with respect
to such matter at a Shareholders' meeting, but any lesser number shall be
sufficient for adjournments. Any adjourned session or sessions may be held
within a reasonable time after the date set for the original meeting without the
necessity of further notice. A Majority Shareholder Vote at a meeting of which a
quorum is present shall decide any question, except when a different vote is
required or permitted by any provision of the 1940 Act or other applicable law
or by this Declaration or the By-Laws, or when the Trustees shall in their
discretion require a larger vote or the vote of a majority or larger fraction of
the Shares of one or more particular Series.
SECTION 7.6 Action by Written Consent. Subject to the provisions of the
1940 Act and other applicable law, any action taken by Shareholders may be taken
without a meeting if a majority of Shareholders entitled to vote on the matter
(or such larger proportion thereof or of the Shares of any particular Series as
shall be required by the 1940 Act or by any express provision of this
Declaration or the By-Laws or as shall be permitted by the Trustees) consent to
the action in writing and if the writings in which such consent is given are
filed with the records of the meetings of Shareholders, to the same extent and
for the same period as proxies given in connection with a Shareholders' meeting.
Such consent shall be treated for all purposes as a vote taken at a meeting of
Shareholders.
SECTION 7.7 Inspection of Records. The records of the Trust shall be open
to inspection by Shareholders to the same extent as is permitted stockholders of
a Massachusetts business corporation under the Massachusetts Business
Corporation Law.
SECTION 7.8 Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
ARTICLE 8
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 8.1 Trustees, Shareholders, etc. Not Personally Liable; Notice. The
Trustees and officers of the Trust, in incurring any debts, liabilities or
obligations, or in taking or omitting any other actions for or in connection
with the Trust, are or shall be deemed to be acting as Trustees or officers of
the Trust and not in their own capacities. No Shareholder shall be subject to
any personal liability whatsoever in tort, contract or otherwise to any other
Person or Persons in connection with the assets or the affairs of the Trust or
of any Portfolio, and subject to Section 8.4 hereof, no Trustee, officer,
employee or agent of the Trust shall be subject to any personal liability
whatsoever in tort, contract, or otherwise, to any other Person or Persons in
connection with the assets or affairs of the Trust or of any Portfolio, save
only that arising from his own willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of his office or the
discharge of his functions. The Trust (or if the matter relates only to a
particular Portfolio, that Portfolio) shall be solely liable for any and all
debts, claims, demands, judgments, decrees, liabilities or obligations of any
and every kind, against or with respect to the Trust or such Portfolio in tort,
contract or otherwise in connection with the assets or the affairs of the Trust
or such Portfolio, and all Persons dealing with the Trust or any Portfolio shall
be deemed to have agreed that resort shall be had solely to the Trust Property
of the Trust or the Portfolio Assets of such Portfolio, as the case may be, for
the payment or performance thereof.
The Trustees shall use their best efforts to ensure that every note, bond,
contract, instrument, certificate or undertaking made or issued by the Trustees
or by any officers or officer shall give notice that this Declaration is on file
with the Secretary of The Commonwealth of Massachusetts and shall recite to the
effect that the same was executed or made by or on behalf of the Trust or by
them as Trustees or Trustee or as officers or officer, and not individually, and
that the obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and property of
the Trust, or the particular Portfolio in question, as the case may be, but the
omission thereof shall not operate to bind any Trustees or Trustee or officers
or officer or Shareholders or Shareholder individually, or to subject the
Portfolio Assets of any Portfolio to the obligations of any other Portfolio.
SECTION 8.2 Trustees' Good Faith Action; Expert Advice; No Bond or Surety.
The exercise by the Trustees of their powers and discretion hereunder shall be
binding upon everyone interested. Subject to Section 8.4 hereof, a Trustee shall
be liable for his own willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the office of
Trustee, and for nothing else, and shall not be liable for errors of judgment or
mistakes of fact or law. Subject to the foregoing, (i) the Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing of any officer,
agent, employee, consultant, Investment Adviser, Administrator, Distributor or
Principal Underwriter, Custodian or Transfer Agent, Dividend Disbursing Agent,
Shareholder Servicing Agent or Accounting Agent of the Trust, nor shall any
Trustee be responsible for the act or omission of any other Trustee; (ii) the
Trustees may take advice of counsel or other experts with respect to the meaning
and operation of this Declaration and their duties as Trustees, and shall be
under no liability for any act or omission in accordance with such advice or for
failing to follow such advice; and (iii) in
discharging their duties, the Trustees, when acting in good faith, shall be
entitled to rely upon the books of account of the Trust and upon written reports
made to the Trustees by any officer appointed by them, any independent public
accountant, and (with respect to the subject matter of the contract involved)
any officer, partner or responsible employee of a Contracting Party appointed by
the Trustees pursuant to Section 5.2 hereof. The Trustees as such shall not be
required to give any bond or surety or any other security for the performance of
their duties.
SECTION 8.3 Indemnification of Shareholders. If any Shareholder (or former
Shareholder) of the Trust shall be charged or held to be personally liable for
any obligation or liability of the Trust solely by reason of being or having
been a Shareholder and not because of such Shareholder's acts or omissions or
for some other reason, the Trust (upon proper and timely request by the
Shareholder) shall assume the defense against such charge and satisfy any
judgment thereon, and the Shareholder or former Shareholder (or the heirs,
executors, administrators or other legal representatives thereof, or in the case
of a corporation or other entity, its corporate or other general successor)
shall be entitled (but solely out of the assets of the Portfolio of which such
Shareholder or former Shareholder is or was the holder of Shares) to be held
harmless from and indemnified against all loss and expense arising from such
liability.
SECTION 8.4 Indemnification of Trustees, Officers, etc. Subject to the
limitations set forth hereinafter in this Section 8.4, the Trust shall indemnify
(from the assets of the Portfolio or Portfolios to which the conduct in question
relates) each of its Trustees and officers (including Persons who serve at the
Trust's request as directors, officers or trustees of another organization in
which the Trust has any interest as a shareholder, creditor or otherwise
[hereinafter, together with such Person's heirs, executors, administrators or
personal representative, referred to as a "Covered Person"]) against all
liabilities, including but not limited to amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and expenses, including
reasonable accountants' and counsel fees, incurred by any Covered Person in
connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, before any court or administrative or
legislative body, in which such Covered Person may be or may have been involved
as a party or otherwise or with which such Covered Person may be or may have
been threatened, while in office or thereafter, by reason of being or having
been such a Trustee or officer, director or trustee, except with respect to any
matter as to which it has been determined that such Covered Person (i) did not
act in good faith in the reasonable belief that such Covered Person's action was
in or not opposed to the best interests of the Trust or (ii) had acted with
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of such Covered Person's office (either and both
of the conduct described in clauses (i) and (ii) of this sentence being referred
to hereafter as "Disabling Conduct"). A determination that the Covered Person is
entitled to indemnification may be made by (i) a final decision on the merits by
a court or other body before whom the proceeding was brought that the Covered
Person to be indemnified was not liable by reason of Disabling Conduct, (ii)
dismissal of a court action or an administrative proceeding against a Covered
Person for insufficiency of evidence of Disabling Conduct, or (c) a reasonable
determination, based upon a review of the facts, that the indemnitee was not
liable by reason of Disabling Conduct by (a) a vote of a majority of a quorum of
Trustees who are neither "interested persons" of the Trust as defined in Section
2(a)(19) of the 1940 Act nor parties to the proceeding, or (b) an independent
legal counsel in a written opinion. Expenses, including accountants' and counsel
fees so incurred by any such Covered Person (but excluding amounts paid in
satisfaction of judgments, in compromise or as
fines or penalties), may be paid from time to time by the Portfolio or
Portfolios to which the conduct in question related in advance of the final
disposition of any such action, suit or proceeding; provided, that the Covered
Person shall have undertaken to repay the amounts so paid to such Portfolio or
Portfolios if it is ultimately determined that indemnification of such expenses
is not authorized under this Article 8 and (i) the Covered Person shall have
provided security for such undertaking, (ii) the Trust shall be insured against
losses arising by reason of any lawful advances, or (iii) a majority of a quorum
of the disinterested Trustees, or an independent legal counsel in a written
opinion, shall have determined, based on a review of readily available facts (as
opposed to a full trial-type inquiry), that there is reason to believe that the
Covered Person ultimately will be found entitled to indemnification.
SECTION 8.5 Compromise Payment. As to any matter disposed of by a
compromise payment by any such Covered Person referred to in Section 8.4 hereof,
pursuant to a consent decree or otherwise, no such indemnification either for
said payment or for any other expenses shall be provided unless such
indemnification shall be approved (i) by a majority of a quorum of the
disinterested Trustees or (ii) by an independent legal counsel in a written
opinion. Approval by the Trustees pursuant to clause (i) or by independent legal
counsel pursuant to clause (ii) shall not prevent the recovery from any Covered
Person of any amount paid to such Covered Person in accordance with either of
such clauses as indemnification if such Covered Person is subsequently
adjudicated by a court of competent jurisdiction not to have acted in good faith
in the reasonable belief that such Covered Person's action was in or not opposed
to the best interests of the Trust or to have been liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such Covered
Person's office.
SECTION 8.6 Indemnification Not Exclusive, etc. The right of
indemnification provided by this Article 8 shall not be exclusive of or affect
any other rights to which any such Covered Person may be entitled. As used in
this Article 8, a "disinterested" Person is one against whom none of the
actions, suits or other proceedings in question, and no other action, suit or
other proceeding on the same or similar grounds is then or has been pending or
threatened. Nothing contained in this Article 8 shall affect any rights to
indemnification to which personnel of the Trust, other than Trustees and
officers, and other Persons may be entitled by contract or otherwise under law,
nor the power of the Trust to purchase and maintain liability insurance on
behalf of any such Person.
SECTION 8.7 Liability of Third Persons Dealing with Trustees. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
ARTICLE 9
DURATION; REORGANIZATION; AMENDMENTS
SECTION 9.1 Duration and Termination of Trust. Unless terminated as
provided herein, the Trust shall continue without limitation of time and,
without limiting the generality of the foregoing, no change, alteration or
modification with respect to any Portfolio or Series
of Shares shall operate to terminate the Trust. The Trust may be terminated at
any time by a Majority of the Trustees, subject to the favorable vote of the
holders of not less than a majority of the Shares outstanding and entitled to
vote of each Portfolio of the Trust, or by an instrument or instruments in
writing without a meeting, consented to by the holders of not less than a
majority of such Shares, or by such greater or different vote of Shareholders of
any Series as may be established by the Certificate of Designation by which such
Series was authorized. Upon termination, after paying or otherwise providing for
all charges, taxes, expenses and liabilities, whether due or accrued or
anticipated as may be determined by the Trustees, the Trust shall in accordance
with such procedures as the Trustees consider appropriate reduce the remaining
assets to distributable form in cash, Securities or other property, or any
combination thereof, and distribute the proceeds to the Shareholders, in
conformity with the provisions of Section 6.2(d) hereof.
SECTION 9.2 Reorganization. The Trustees may sell, convey and transfer all
or substantially all of the assets of the Trust, or the Portfolio Assets of any
one or more Portfolios of the Trust, to another trust, partnership, association
or corporation organized under the laws of any state of the United States, or
may transfer the assets of one Portfolio of the Trust to another Portfolio of
the Trust, in exchange for cash, shares of the transferee or other Securities,
or to the extent permitted by law then in effect may merge or consolidate the
Trust or any Portfolio with any other trust or any corporation, partnership, or
association organized under the laws of any state of the United States, all upon
such terms and conditions and for such consideration when and as authorized by
vote or written consent of a Majority of the Trustees and approved by the
affirmative vote of the holders of not less than a majority of the Shares
outstanding and entitled to vote of each Portfolio whose assets are affected by
such transaction, or by an instrument or instruments in writing without a
meeting, consented to by the holders of not less than a majority of such Shares,
and/or by such other vote of any Series as may be established by the Certificate
of Designation with respect to such Series. Following such transfer, the
Trustees shall distribute the cash, shares or other Securities or other
consideration received in such transaction (giving due effect to the assets
belonging to and indebtedness of, and any other differences among, the various
Portfolios whose assets have so been transferred) among the Shareholders of such
Portfolios; and if all of the assets of the Trust have been so transferred, the
Trust shall be terminated. Nothing in this Section 9.2 shall be construed as
requiring approval of Shareholders for the Trustees to organize or assist in
organizing one or more corporations, trusts, partnerships, associations or other
organizations, and to sell, convey or transfer less than substantially all of
the Trust Property or the assets belonging to any Portfolio to such
organizations or entities.
SECTION 9.3 Amendments; etc. All rights granted to the Shareholders under
this Declaration are granted subject to the reservation of the right to amend
this Declaration as herein provided, except that no amendment shall repeal the
limitations on personal liability of any Shareholder or Trustee or the
prohibition of assessment upon the Shareholders (otherwise than as permitted
under Section 6.2(g)) without the express consent of each Shareholder or Trustee
involved. Subject to the foregoing, the provisions of this Declaration (whether
or not related to the rights of Shareholders) may be amended at any time, so
long as such amendment does not adversely affect the rights of any Shareholder
with respect to which such amendment is or purports to be applicable and so long
as such amendment is not in contravention of applicable law, including the 1940
Act, by an instrument in writing signed by a Majority of the Trustees (or by an
officer of the Trust pursuant to the vote of a Majority of the Trustees). Any
amendment to this Declaration that adversely affects the rights of all
Shareholders may be adopted at any time by an instrument in writing signed by a
Majority of the Trustees
(or by an officer of the Trust pursuant to a vote of a Majority of the Trustees)
when authorized to do so by the vote in accordance with Section 7.1 hereof of
Shareholders holding a majority of all the Shares outstanding and entitled to
vote, without regard to Series, or if said amendment adversely affects the
rights of the Shareholders of less than all of the Portfolios, by the vote of
the holders of a majority of all the Shares entitled to vote of each Portfolio
so affected. Subject to the foregoing, any such amendment shall be effective
when an instrument stating the terms thereof and a certificate (which may be a
part of such instrument) to the effect that such amendment has been duly adopted
and setting forth the circumstances thereof, shall have been executed and
acknowledged by a Trustee or officer of the Trust.
SECTION 9.4 Filing of Copies of Declaration and Amendments. The original or
a copy of this Declaration and of each amendment hereto (including each
Certificate of Designation and Certificate of Termination), shall be kept at the
office of the Trust where it may be inspected by any Shareholder, and one copy
of each such instrument shall be filed with the Secretary of The Commonwealth of
Massachusetts, as well as with any other governmental office where such filing
may from time to time be required by the laws of Massachusetts, but such filing
shall not be a prerequisite to the effectiveness of this Declaration or any such
amendment. A restated Declaration, integrating into a single instrument all of
the provisions of this 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.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Governing Law. This Declaration of Trust is executed and
delivered in The Commonwealth of Massachusetts and with reference to the laws
thereof, and the rights of all parties and the construction and effect of every
provision hereof shall be subject to and construed according to the laws of said
Commonwealth.
SECTION 10.2 Counterparts. This Declaration of Trust and any amendment
thereto may be simultaneously executed in several counterparts, each of which so
executed shall be deemed to be an original, and such counterparts, together,
shall constitute but one and the same instrument, which shall be sufficiently
evidenced by any such original counterpart.
SECTION 10.3 Reliance by Third Parties. Any certificate executed by an
individual who, according to the records in the office of the Secretary of The
Commonwealth of Massachusetts appears to be a Trustee hereunder, certifying to:
(a) the number or identity of Trustees or Shareholders, (b) the due
authorization of the execution of any instrument or writing, (c) the form of any
vote passed as a meeting of Trustees or Shareholders, (d) the fact that the
number of Trustees or Shareholders present at any meeting or executing any
written instrument satisfies the requirements of this Declaration of Trust, (e)
the form of any By-Law adopted, or the
identity of any officers elected, by the Trustees, or (f) the existence or
non-existence of any fact or facts which in any manner relate 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, or any of them, and the successors of
such Person.
SECTION 10.4 References; Headings. The masculine gender shall include the
feminine and neuter genders. Headings are placed herein for convenience of
reference only and shall not be taken as a part of this Declaration of Trust, or
control or affect the meaning, construction or effect hereof.
SECTION 10.5 SECTION 10.6 Use of the Name "JWB". JWB Investment Advisory &
Research ("JWB Investment Advisory") has consented to the use by the Trust of
the identifying name "JWB," which is a property right of JWB Investment
Advisory. The Trust acknowledges and agrees that it is entitled to use such name
as a component of its own name only to identify itself as an investment company
advised by , and for no other purpose, and that it has no right to grant, and
will not attempt or purport to grant, to any third party the right to use such
name for any purpose. The Trust agrees that JWB Investment Advisory or any
Person affiliated with JWB Investment Advisory may use or grant to others the
right to use such name as all or a portion of a corporate or business name or
for any commercial purpose, including a grant of such right to any other
investment company. At the request of JWB Investment Advisory, the Trust will
take such action as may be required to provide its consent to the use of such
name by JWB Investment Advisory, or by any Person affiliated with JWB Investment
Advisory, or by any Person to whom JWB Investment Advisory or an affiliate of
JWB Investment Advisory shall have granted the right to the use of such name.
Upon the termination of any investment advisory agreement into which JWB
Investment Advisory and the Trust may enter, the Trust shall, upon request by
JWB Investment Advisory, cease to use such name as a component of its name, and
shall not use such name as a part of its name or for any other commercial
purpose, and shall cause its officers and Trustees to take any and all actions
which JWB Investment Advisory may request to effect the foregoing and to
reconvey to JWB Investment Advisory or to such affiliated Person any and all
rights to such name.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal, for
him self and his assigns, and has thereby accepted the Trusteeship as the
Initial Trustee of JWB Aggressive Growth Fund hereby granted and agreed to the
provisions hereof, all as of the day and year first above written.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
The undersigned Settlor hereby accepts, approves and authorizes the
foregoing Agreement and Declaration of Trust.
Dated: October 10, 1995
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
ACKNOWLEDGMENTS
M A S S A C H U S E T T S
Suffolk, ss.: October 10, 1995
Then personally appeared the above named ▇▇▇▇▇ ▇. ▇▇▇▇▇ and acknowledged
the foregoing instrument to be his free act and deed.
Before me,
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Notary Public
My Commission Expires: 6-19-98
[NOTARIAL SEAL]
M A S S A C H U S E T T S
Suffolk, ss.: October 10, 1995
Then personally appeared the above named ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
acknowledged the foregoing instrument to be her free act and deed.
Before me,
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Notary Public
My Commission Expires: 6-19-98
[NOTARIAL SEAL]