U.S. GLOBAL INVESTORS FUNDS
SECOND AMENDED AND RESTATED
MASTER TRUST AGREEMENT
AUGUST 16, 2000
(C) 1995 Goodwin, Procter & Hoar
All Rights Reserved
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ARTICLE I NAME AND DEFINITIONS..........................................1
Section 1.1 Name and Principal Office.....................................1
Section 1.2 Definitions...................................................1
"Trust"...................................................1
"Trustees"................................................1
"Shares"..................................................1
"Series"..................................................1
"Shareholder".............................................1
"1940 Act"................................................1
"Commission"..............................................1
"Declaration of Trust"....................................2
"By-Laws".................................................2
"Class"...................................................2
ARTICLE II PURPOSE OF TRUST..............................................2
ARTICLE III THE TRUSTEES
Section 3.1 Number, Designation, Election, Term, etc......................2
(a) Trustees.............................................2
(b) Number...............................................2
(c) Election and ........................................2
(d) Resignation and Retirement...........................2
(e) Removal..............................................2
(f) Vacancies............................................3
(g) Effect of Death, Resignation, etc....................3
(h) No Accounting........................................3
Section 3.2 Powers of Trustees............................................3
(a) Investments..........................................4
(b) Disposition of Assets................................4
(c) Ownership Powers.....................................4
(d) Subscription.........................................4
(e) Form of Holding......................................4
(f) Reorganization, etc..................................4
(g) Voting Trusts, etc...................................4
(h) Compromise...........................................4
(i) Partnerships, etc....................................4
(j) Borrowing and Security...............................4
(k) Guarantees, etc......................................4
(1) Insurance............................................5
(m) Pensions, etc........................................5
(n) Distribution Plans...................................5
Section 3.3 Certain Contracts.............................................5
(a) Advisory.............................................5
(b) Administration.......................................5
(c) Distribution.........................................6
(d) Custodian and Depository.............................6
(e) Transfer and Dividend Disbursing Agency..............6
(f) Shareholder Servicing................................6
(g) Accounting...........................................6
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Section 3.4 Payment of Trust Expenses and Compensation of Trustees........7
Section 3.5 Ownership of Assets of the Trust..............................7
ARTICLE IV SHARES
Section 4.1 Description of Shares.........................................7
Section 4.2 Establishment and Designation of Sub-Trusts and Classes.......8
Section 4.3 Rights and Preferences of Sub-Trusts..........................8
(a) Assets Belonging to Sub-Trusts.......................8
(b) Liabilities Belonging to Sub-Trusts..................9
(c) Dividends............................................9
(d) Determination of Treatment as Income and/or Capital..9
(e) Liquidation..........................................9
(f) Voting..............................................10
(g) Redemption by Shareholder...........................10
(h) Redemption by Trust.................................10
(i) Net Asset Value.....................................10
(j) Transfer............................................11
(k) Equality............................................11
(l) Fractions...........................................11
(m) Conversion Rights...................................11
(n) Class Differences...................................11
Section 4.4 Ownership of Shares..........................................11
Section 4.5 Investments in the Trust.....................................12
Section 4.6 No Pre-emptive Rights........................................12
Section 4.7 Status of Shares and Limitation of Personal Liability........12
ARTICLE V SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 5.1 Voting Powers................................................12
Section 5.2 Meetings.....................................................12
Section 5.3 Record Dates.................................................13
Section 5.4 Quorum and Required Vote.....................................13
Section 5.5 Action by Written Consent....................................13
Section 5.6 Inspection of Records........................................13
Section 5.7 Additional Provisions........................................13
Section 5.8 Shareholder Communications...................................13
ARTICLE VI LIMITATION OF LIABILITY: INDEMNIFICATION
Section 6.1 Trustees, Shareholders, etc. Not Personally Liable: Notice...14
Section 6.2 Notice for Contracts.........................................14
Section 6.3 Trustee's Good Faith Action: Expert Advice: No Bond or Surety14
Section 6.4 Indemnification of Shareholders..............................15
Section 6.5 Indemnification of Trustees, Officers, etc...................15
Section 6.6 Compromise Payment...........................................15
Section 6.7 Indemnification Not Exclusive, etc...........................16
Section 6.8 Liability of Third Persons Dealing with Trustees.............16
ARTICLE VII MISCELLANEOUS
Section 7.1 Duration and Termination of Trust............................16
Section 7.2 Reorganization...............................................16
Section 7.3 Amendments...................................................17
Section 7.4 Filing of Copies: References, Headings.......................17
Section 7.5 Applicable Law...............................................17
Section 7.6 Resident Agent...............................................18
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U.S. GLOBAL INVESTORS FUNDS
SECOND AMENDED AND RESTATED
MASTER TRUST AGREEMENT
AGREEMENT AND DECLARATION OF TRUST (the "Agreement") made at Boston,
Massachusetts the 31st day of July 1984 by the Trustees hereunder, and by the
holders of shares of beneficial interest to be issued hereunder, is hereby
amended and restated in its entirety this 16th day of August 2000 in the City of
San Antonio in the State of Texas, as follows:
WITNESSETH
WHEREAS this Trust has been formed to carry on the business of an
investment company; and
WHEREAS the Trustees have agreed to manage all property coming into their
hands as trustees of a Massachusetts business trust in accordance with the
provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash,
securities and other assets which they may from time to time acquire in any
manner as Trustees hereunder IN TRUST to manage and dispose of the same upon the
following terms and conditions for the benefit of the holders from time to time
of shares of beneficial interest in this Trust or Sub-Trusts created hereunder
as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
Section 1.1 Name and Principal Office. This Trust shall be known as U.S.
Global Investors Funds and the Trustees shall conduct the business of the Trust
under that name or any other name or names as they may from time to time
determine. The principal office of the Trust shall be located at 7900 Callaghan
Road, San Antonio, Texas or at such other location as the Trustees may from time
to time determine.
Section 1.2 Definitions. Whenever used herein, unless otherwise required by
the context or specifically provided:
(a) The "Trust" refers to the Massachusetts business trust
established by this Trust Agreement, as amended from time to time,
inclusive of each and every Sub-Trust established hereunder;
(b) "Trustees" refers to the Trustees of the Trust and of each
Sub-Trust hereunder named herein or elected in accordance with Article
III;
(c) "Shares" refers to the transferable units of interest into
which the beneficial interest in the Trust and each Sub-Trust of the
Trust and/or any class of any Sub-Trust (as the context may require)
shall be divided from time to time;
(d) "Series" refers to Series of Shares established and
designated under or in accordance with the provisions of Article IV,
each of which Series shall be a Sub-Trust of the Trust;
(e) "Shareholder" means a record owner of Shares;
(f) The "1940 Act" refers to the Investment Company Act of 1940
and the Rules and Regulations thereunder, all as amended from time to
time;
(g) The term "Commission" shall have the meaning given it in the
1940 Act;
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Second Amended and Restated Master Trust Agreement
(h) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust as amended or restated from time to time;
(i) "By-Laws" shall mean the By-Laws of the Trust as amended from
time to time; and
(j) "Class" refers to any class of Shares of any Series or
Sub-Trust established and designated under or in accordance with the
provisions of Article IV.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to operate as an investment company and to
offer Shareholders of the Trust and each Sub-Trust of the Trust one or more
investment programs primarily in securities and debt instruments. The Trust
shall also have the power to invest in precious metals, bullion and gold coins.
ARTICLE III
THE TRUSTEES
Section 3.1 Number, Designation, Election, Term, etc.
(a) Trustees. The Trustees hereof are John P. Allen, 13615
Chenille, San Antonio, Texas; E. Douglas Hodo, 7706 Fondren, Houston,
Texas; Frank E. Holmes, 7900 Callaghan Road, San Antonio, Texas;
W.C.J. van Rensburg, 6010 Sierra Arbor Court, Austin, Texas; W.W.
McAllister, III, 7550 IH-10 West, Suite 700, San Antonio, Texas; Clark
R. Mandigo, 15050 Jones Maltsberger, San Antonio, Texas.
(b) Number. The Trustee(s) serving as such, whether named above
or hereafter becoming a Trustee, may 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 3.1.
(c) Election and Term. The Trustees shall be elected by
Shareholders of the Trust. Each Trustee, whether named above or
hereafter becoming a Trustee, shall serve as a Trustee of the Trust
and of each Sub-Trust hereunder during the lifetime of this Trust and
until its termination as hereinafter provided except as such Trustee
sooner dies, resigns or is removed. Subject to Section 16(a) of the
1940 Act, the Trustees may elect their own successors and may,
pursuant to Section 3.1 (f) hereof, appoint Trustees to fill
vacancies.
(d) Resignation and Retirement. Any Trustee may resign his trust
or retire as a Trustee, by written instrument signed by him and
delivered to the other Trustees or to any officer of the Trust, and
such resignation or retirement shall take effect upon such delivery or
upon such later date as is specified in such instrument and shall be
effective as to the Trust and each Sub-Trust hereunder.
(e) Removal. Any Trustee may be removed with or without cause at
any time: (i) by written instrument, signed by at least two-thirds of
the number of Trustees prior to such removal, specifying the date upon
which such removal shall become effective; or (ii) by vote of
Shareholders holding not less than two-thirds of the Shares then
outstanding, cast in person or by proxy at any meeting called for the
purpose; or (iii) by a written declaration signed by Shareholders
holding not less than two-thirds of the Shares then outstanding and
filed with the Trust's Custodian. Any such removal shall be effective
as to the Trust and each Sub-Trust hereunder.
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Second Amended and Restated Master Trust Agreement
(f) Vacancies. Any vacancy or anticipated vacancy resulting from
any reason, including without limitation the death, resignation,
retirement, removal or incapacity of any of the Trustees, or resulting
from an increase in the number of Trustees by the other Trustees may
(but need not unless required by the 1940 Act) be filled either by a
majority of the remaining Trustees, subject to the provisions of
Section 16(a) of the 1940 Act, through the appointment in writing of
such other person as such remaining Trustees in their discretion shall
determine and such appointment shall be effective upon the written
acceptance of the person named therein to serve as a Trustee and
agreement by such person to be bound by the provisions of this
Declaration of Trust, except that any such appointment in anticipation
of a vacancy to occur by reason of retirement, resignation, or
increase in number of Trustees to be effective at a later date shall
become effective only at or after the effective date of said
retirement, resignation, or increase in number of Trustees. As soon as
any Trustee so appointed shall have accepted such appointment and
shall have agreed in writing to be bound by this Declaration of Trust
and the appointment is effective, the Trust estate shall vest in the
new Trustee, together with the continuing Trustees, without any
further act or conveyance.
(g) Effect of Death, Resignation, etc. The death, resignation,
retirement, removal, or incapacity of the Trustees, or any one of
them, shall not operate to annul or terminate the Trust or any
Sub-Trust hereunder or to revoke or terminate any existing agency or
contract created or entered into pursuant to the terms of this
Declaration of Trust.
(h) 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 as a result of his death, resignation,
retirement, removal or incapacity (nor the estate of any such person)
shall be required to make an accounting to the Shareholders or
remaining Trustees upon such cessation.
Section 3.2 Powers of Trustees. Subject to the provisions of this
Declaration of Trust, the business of the Trust shall be managed by the
Trustees, and they shall have all powers necessary or convenient to carry out
that responsibility and the purpose of the Trust. Without limiting the
foregoing, the Trustees may adopt By-Laws not inconsistent with this Declaration
of Trust providing for the conduct of the business and affairs of the Trust and
may amend and repeal them to the extent that such By-Laws do not reserve that
right to the Shareholders; they may from time to time in accordance with the
provisions of Section 4.1 hereof establish Sub-Trusts, each such Sub-Trust to
cooperate as a separate and distinct investment medium and with separately
defined investment objectives and policies and distinct investment purpose; they
may from time to time in accordance with the provisions of Section 4.1 hereof
establish classes of Shares of any Series or Sub-Trust or divide the Shares of
any Series or Sub-Trust into classes; 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, and may provide for the compensation of all of the foregoing; they may
appoint from their own number, and terminate any one or more committees
consisting of two or more Trustees, including without implied limitation an
executive committee, which may, when the Trustees are not in session and subject
to the 1940 Act, exercise some or all of the power and authority of the Trustees
as the Trustees may determine; in accordance with Section 3.3 they may employ
one or more Advisers, Administrators, Depositories and Custodians and may
authorize any Depository or Custodian to employ subcustodians or agents and to
deposit all or any part of such assets in a system or systems for the central
handling of securities and debt instruments, retain transfer, dividend,
accounting or Shareholder servicing agents or any of the foregoing, provide for
the distribution of Shares by the Trust through one or more distributors,
principal underwriters or otherwise, set record dates or times for the
determination of Shareholders or various of them with respect to various
matters; they may compensate or provide for the compensation of the Trustees,
officers, advisers, administrators, custodians, other agents, consultants and
employees of the Trust or the Trustees on such terms as they deem appropriate;
and in general they may delegate to any officer of the Trust, to any committee
of the Trustees and to any employee, adviser, administrator, distributor,
depository, custodian, transfer and dividend disbursing agent, or any other
agent or consultant of the Trust such authority, powers, functions and duties as
they consider desirable or appropriate for the conduct of the business and
affairs of the Trust, including without implied limitation the power
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Second Amended and Restated Master Trust Agreement
and authority to act in the name of the Trust and of the Trustees, to sign
documents and to act as attorney-in-fact for the Trustees.
Without limiting the foregoing and to the extent not inconsistent with
the 1940 Act or other applicable law, the Trustees shall have power and
authority for and on behalf of the Trust and each separate Sub-Trust established
hereunder:
(a) Investments. To invest and reinvest cash and other property,
and to hold cash or other property uninvested without in any event
being bound or limited by any present or future law or custom in
regard to investments by trustees;
(b) Disposition of Assets. To sell, exchange, lend, pledge,
mortgage, hypothecate, write options on and lease any or all of the
assets of the Trust;
(c) Ownership Powers. To vote or give assent, or exercise any
rights of ownership, with respect to stock or other securities, debt
instruments or property; and to execute and deliver proxies or powers
of attorney to such person or persons as the Trustees shall deem
proper, granting to such person or persons such power and discretion
with relation to securities, debt instruments or property as the
Trustees shall deem proper;
(d) Subscription. To exercise powers and rights of subscription
or otherwise which in any manner arise out of ownership of securities
or debt instruments;
(e) Form of Holding. To hold any security, debt instrument or
property in a form not indicating any trust, whether in bearer,
unregistered or other negotiable form, or in the name of the Trustees
or of the Trust or of any Sub-Trust or in the name of a custodian,
subcustodian or other depositary or a nominee or nominees or
otherwise;
(f) Reorganization, etc. To consent to or participate in any plan
for the reorganization, consolidation or merger of any corporation or
issuer, any security or debt instrument of which is or was held in the
Trust; to consent to any contract, lease, mortgage, purchase or sale
of property by such corporation or issuer, and to pay calls or
subscriptions with respect to any security or debt instrument held in
the Trust;
(g) Voting Trusts, etc. To join with other holders of any
securities or debt instruments in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to
deposit any security or debt instrument with, or transfer any security
or debt instrument to, any such committee, depositary or trustee, and
to delegate to them such power and authority with relation to any
security or debt instrument (whether or not so deposited or
transferred) as the Trustees shall deem proper, and to agree to pay,
and to pay, such portion of the expenses and compensation of such
committee, depositary or trustee as the Trustees shall deem proper;
(h) Compromise. To compromise, arbitrate or otherwise adjust
claims in favor of or against the Trust or any Sub-Trust or any matter
in controversy, including but not limited to claims for taxes;
(i) Partnerships, etc. To enter into joint ventures, general or
limited partnerships and any other combinations or associations;
(j) Borrowing and Security. To borrow funds and to mortgage and
pledge the assets of the Trust or any part thereof to secure
obligations arising in connection with such borrowing;
(k) Guarantees, etc. To endorse or guarantee the payment of any
notes or other obligations of any person; to make contracts of
guaranty or suretyship, or otherwise assume liability for payment
thereof; and to mortgage and pledge the Trust property or any part
thereof to secure any of or all such obligations;
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Second Amended and Restated Master Trust Agreement
(1) Insurance. To purchase and pay for entirely out of Trust
property such insurance as they may deem necessary or appropriate for
the conduct of the business, including, without limitation, insurance
policies insuring the assets of the Trust and payment of distributions
and principal on its portfolio investments, and insurance policies
insuring the Shareholders, Trustees, officers, employees, agents,
consultants, investment advisers, managers, administrators,
distributors, principal underwriters, or independent contractors, or
any thereof (or any person connected therewith), of the Trust
individually against all claims and liabilities of every nature
arising by reason of holding, being or having held any such office or
position, or by reason of any action alleged to have been taken or
omitted by any such person in any such capacity, including any action
taken or omitted that may be determined to constitute negligence,
whether or not the Trust would have the power to indemnify such person
against such liability;
(m) Pensions, etc. To pay pensions for faithful service, as
deemed appropriate by the Trustees, and to adopt, establish and carry
out pension, profit-sharing, share bonus, share purchase, savings,
thrift and other retirement, incentive and benefit plans, trust 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; and
(n) Distribution Plans. To adopt on behalf of the Trust or any
Sub-Trust with respect to any class thereof a plan of distribution and
related agreements thereto pursuant to the terms of Rule 12b-1 of the
1940 Act and to make payments from the assets of the Trust or the
relevant Sub-Trust or Sub-Trusts pursuant to said Rule 12b-1 Plan.
Except as otherwise provided by the 1940 Act or other applicable law,
this Declaration of Trust or the By- Laws, any action to be taken by the
Trustees on behalf of the Trust or any Sub-Trust may be taken by a majority of
the Trustees present at a meeting of Trustees (a quorum, consisting of at least
a majority of the Trustees then in office, being present), within or without
Massachusetts, including any meeting held by means of a conference telephone or
other communications equipment by means of which all persons participating in
the meeting can hear each other at the same time and participation by such means
shall constitute presence in person at a meeting, or by written consents of a
majority of the Trustees then in office (or such larger or different number as
may be required by the 1940 Act or other applicable law).
Section 3.3 Certain Contracts. Subject to compliance with the
provisions of the 1940 Act, but notwithstanding any limitations of present and
future law or custom in regard to delegation of powers by trustees generally,
the Trustees may, at any time and from time to time and without limiting the
generality of their powers and authority otherwise set forth herein, enter into
one or more contracts with any one or more corporations, trusts, associations,
partnerships, limited partnerships, other type of organizations, or individuals
("Contracting Party"), to provide for the performance and assumption of some or
all of the following services, duties and responsibilities to, for or on behalf
of the Trust and/or any Sub-Trust, and/or the Trustees, and to provide for the
performance and assumption of such other services, duties and responsibilities
in addition to those set forth below as the Trustees may determine appropriate:
(a) Advisory. Subject to the general supervision of the Trustees
and in conformity with the stated policy of the Trustees with respect
to the investments of the Trust or of the assets belonging to any
Sub-Trust of the Trust (as that phrase is defined in subsection (a) of
Section 4.2), to manage such investments and assets, make investment
decisions with respect thereto, and to place purchase and sale orders
for portfolio transactions relating to such investments and assets;
(b) Administration. Subject to the general supervision of the
Trustees and in conformity with any policies of the Trustees with
respect to the operations of the Trust and each Sub-Trust (including
any classes thereof), to supervise all or any part of the operations
of the Trust and each Sub-Trust, and to provide all or any part of the
administrative and clerical personnel, office space and office
equipment and services appropriate for the efficient administration
and operations of the Trust and each Sub-Trust;
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Second Amended and Restated Master Trust Agreement
(c) Distribution. To distribute the Shares of the Trust and each
Sub-Trust (including any classes thereof), to be principal underwriter
of such Shares, and/or to act as agent of the Trust and each Sub-Trust
in the sale of Shares and the acceptance or rejection of orders for
the purchase of Shares;
(d) Custodian and Depository. To act as depository for and to
maintain custody of the property of the Trust and each Sub-Trust and
accounting records in connection therewith;
(e) Transfer and Dividend Disbursing Agency. To maintain records
of the ownership of outstanding Shares, the issuance and redemption
and the transfer thereof, and to disburse any dividends declared by
the Trustees and in accordance with the policies of the Trustees
and/or the instructions of any particular Shareholder to reinvest any
such dividends;
(f) Shareholder Servicing. To provide service with respect to the
relationship of the Trust and its Shareholders, records with respect
to Shareholders and their Shares, and similar matters; and
(g) Accounting. To handle all or any part of the accounting
responsibilities, whether with respect to the Trust's properties,
Shareholders or otherwise.
The same person may be the Contracting Party for some or all of the
services, duties and responsibilities to, for and of the Trust and/or the
Trustees, and the contracts with respect thereto may contain such terms
interpretive of or in addition to the delineation of the services, duties and
responsibilities provided for, including provisions that are not inconsistent
with the 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 Sections 3.3(a) through (g) hereof.
The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee,
manager, adviser, principal underwriter or distributor or agent of
or for any Contracting Party, or of or for any parent or affiliate
of any Contracting Party or that the Contracting Party or any
parent or affiliate thereof is a Shareholder or has an interest in
the Trust or any Sub-Trust, or that
(ii) any Contracting Party may have a contract providing for the
rendering of any similar services to one or more other
corporations, trusts, associations, partnerships, limited
partnerships or other organizations, or have other business or
interests, shall not affect the validity of any contract for the
performance and assumption of services, duties and
responsibilities to, for or of the Trust or any Sub-Trust and/or
the Trustees or disqualify any Shareholder, Trustee or officer of
the Trust from voting upon or executing the same or create any
liability or accountability to the Trust, any Sub-Trust or its
Shareholders, provided that in the case of any relationship on
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.
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Section 3.4 Payment of Trust Expenses and Compensation of Trustees. The
Trustees are authorized to pay or to cause to be paid out of the principal or
income of the Trust or any Sub-Trust, or partly out of principal and partly out
of income, and to charge or allocate the same to, between or among such one or
more of the Sub-Trusts and/or one or more classes of Shares thereof that may be
established and designated pursuant to Article IV, as the Trustees deem fair,
all expenses, fees, charges, taxes and liabilities incurred or arising in
connection with the Trust, any Sub-Trust and/or any class of Shares thereof, or
in connection with the management thereof, including, but not limited to, the
Trustees' compensation and such expenses and charges for the services of the
Trust's officers, employees, investment adviser, administrator, distributor,
principal underwriter, auditor, counsel, depository, custodian, transfer agent,
dividend disbursing agent, accounting agent, Shareholder servicing agent, and
such other agents, consultants, and independent contractors and such other
expenses and charges as the Trustees may deem necessary or proper to incur.
Without limiting the generality of any other provision hereof, the Trustees
shall be entitled to reasonable compensation from the Trust for their services
as Trustees and may fix the amount of such compensation.
Section 3.5 Ownership of Assets of the Trust. Title to all of the
assets of the Trust shall at all times be considered as vested in the Trustees.
ARTICLE IV
SHARES
Section 4.1 Description of Shares. The beneficial interest in the Trust
shall be divided into Shares, all without par value, but the Trustees shall have
the authority from time to time to divide the Shares into two or more Series of
Shares, (each of which Series of Shares shall be a separate and distinct
Sub-Trust of the Trust, including without limitation those Sub-Trusts
specifically established and designated in Section 4.2), as they deem necessary
or desirable. Each Sub-Trust established hereunder shall be deemed to be a
separate trust under Massachusetts General Laws Chapter 182. The Trustees shall
have exclusive power without the requirement of shareholder approval to
establish and designate such separate and distinct Sub-Trusts, and to fix and
determine the relative rights and preferences as between the shares of the
separate Sub-Trusts as to right of redemption and the price, terms and manner of
redemption, special and relative rights as to dividends and other distributions
and on liquidation, sinking or purchase fund provisions, conversion rights, and
conditions under which the several Sub-Trusts shall have separate voting rights
or no voting rights.
In addition, the Trustees shall have exclusive power, without the
requirement of Shareholder' approval, to issue classes of Shares of any
Sub-Trust or divide the Shares of any Sub-Trust into classes, each class having
such different dividend, liquidation, voting and other rights as the Trustees
may determine, and may establish and designate the specific classes of Shares of
each Sub-Trust. The fact that a Sub-Trust shall have initially been established
and designated without any specific establishment or designation of classes
(i.e., that all Shares of such Sub-Trust are initially of a single class), or
that a Sub-Trust shall have more than one established and designated class,
shall not limit the authority of the Trustees to establish and designate
separate classes, or one or more further classes, of said Sub-Trust without
approval of the holders of the initial class thereof, or previously established
and designated class or classes thereof, provided that the establishment and
designation of such further separate classes would not adversely affect the
rights of the holders of the initial or previously established and designated
class or classes.
The number of authorized Shares and the number of Shares of each
Sub-Trust or class thereof that may be issued is unlimited, and the Trustees may
issue Shares of any Sub-Trust or class thereof for such consideration and on
such terms as they may determine (or for no consideration if pursuant to a Share
dividend or split-up), all without action or approval of the Shareholders. All
Shares when so issued on the terms determined by the Trustees shall be fully
paid and nonassessable (but may be subject to mandatory contribution back to the
Trust as provided in Subsection (a) of Section 4.3). The Trustees may classify
or reclassify any unissued Shares or any Shares previously
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issued and reacquired of any Sub-Trust or class thereof into one or more
Sub-Trusts or classes thereof that may be established and designated from time
to time. The Trustees may hold as treasury Shares, reissue for such
consideration and on such terms as they may determine, or cancel, at their
discretion from time to time, any Shares of any Sub-Trust or class thereof
reacquired by the Trust.
The Trustees may, at anytime, abolish or terminate the Trust, Sub-Trust
or class thereof if no shares of that Trust, Sub-Trust or class, as the case may
be, are outstanding.
The Trustees may from time to time close the transfer books or
establish record dates and times for the purposes of determining the holders of
Shares entitled to be treated as such, to the extent provided or referred to or
Section 5.3.
The establishment and designation of any Sub-Trust or of any class of
Shares of any Sub-Trust in addition to those established and designated in
Section 4.2 shall be effective upon the execution by a majority of the then
Trustees of an instrument setting forth such establishment and designation and
the relative rights and preferences of the Shares of such Sub-Trust or class, or
as otherwise provided in such instrument. At any time that there are no Shares
outstanding of any particular Sub-Trust or class previously established and
designated the Trustees may by an instrument executed by a majority of their
number (or by an instrument executed by an officer of the Trust pursuant to the
vote of a majority of the Trustees) abolish that Sub-Trust or class and the
establishment and designation thereof. Each instrument referred to in this
paragraph shall have the status of an amendment to this Declaration of Trust.
Any Trustee, officer or other agent of the Trust, and any Organization
in which any such person is interested may acquire, own, hold and dispose of
Shares of any Sub-Trust (including any classes thereof) of the Trust to the same
extent as if such person were not a Trustee, officer or other agent of the
Trust; and the Trust may issue and sell or cause to be issued and sold and may
purchase Shares of any Sub-Trust (including any classes thereof) from any such
person or any such organization subject only to the general limitations,
restrictions or other provisions applicable to the sale or purchase of Shares of
such Sub-Trust (including any classes thereof) generally.
Section 4.2 Establishment and Designation of Sub-Trusts and Classes.
Without limiting the authority of the Trustees set forth in Section 4.1 to
establish and designate any further Sub-Trusts, the Trustees hereby establish
and designate eleven Sub-Trusts: Gold Shares Fund, Global Resources Fund, World
Gold Fund, U.S. Treasury Securities Cash Fund, All American Equity Fund, Equity
Income Fund, Tax Free Fund, U.S. Government Securities Savings Fund, Real Estate
Fund, Near-Term Tax Free Fund, and China Region Opportunity Fund. Each such
Sub-Trust shall consist of one class of Shares.
Section 4.3 Rights and Preferences of Sub-Trusts. The Shares of each
such Sub-Trust and class thereof and any Shares of any further Sub-Trusts or
classes thereof that may from time to time be established and designated by the
Trustees shall (unless the Trustees otherwise determine with respect to some
further Sub-Trust or class thereof at the time of establishing and designating
the same) have the following relative rights and preferences:
(a) Assets Belonging to Sub-Trusts. All consideration received by
the Trust for the issue or sale of Shares of a particular Sub-Trust or
any classes thereof, together with all assets in which such
consideration is invested or reinvested, all income, earnings,
profits, and proceeds thereof, including any proceeds derived from the
sale, exchange or liquidation of such assets, and any funds or
payments derived from any reinvestment of such proceeds in whatever
form the same may be, shall be held by the Trustees in trust for the
benefit of the holders of Shares of that Sub-Trust or class thereof
and shall irrevocably belong to that Sub-Trust (and be allocable to
any classes thereof) for all purposes, and shall be so recorded upon
the books of account of the Trust. Such consideration, assets, income,
earnings, profits, and proceeds thereof, including any proceeds
derived from the sale, exchange or liquidation of such assets, and any
funds or payments derived from any reinvestment of such proceeds, in
whatever form the same may be, together with any General Items
allocated to that Sub-Trust as provided in the following
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sentence, are herein referred to as "assets belonging to" that
Sub-Trust (and allocable to any classes thereof). In the event that
there are any assets, income, earnings, profits, and proceeds thereof,
funds, or payments which are not readily identifiable as belonging to
any particular Sub-Trust (collectively "General Items"), the Trustees
shall allocate such General Items to and among any one or more of the
Sub-Trusts established and designated from time to time in such manner
and on such basis as they, in their sole discretion, deem fair and
equitable; and any General Items so allocated to a particular
Sub-Trust shall belong to that Sub-Trust (and be allocable to any
classes thereof). Each such allocation by the Trustees shall be
conclusive and binding upon the Shareholders of all Sub-Trusts
(including any classes thereof) for all purposes.
(b) Liabilities Belonging to Sub-Trusts. The assets belonging to
each particular Sub-Trust shall be charged with the liabilities in
respect of that Sub-Trust and all expenses, costs, charges and
reserves attributable to that Sub-Trust, and any general liabilities,
expenses, costs, charges or reserves of the Trust which are not
readily identifiable as belonging to any particular Sub-Trust shall be
allocated and charged by the Trustees to and among any one or more of
the Sub-Trusts established and designated from time to time in such
manner and on such basis as the Trustees in their sole discretion deem
fair and equitable. In addition, the liabilities in respect of a
particular class of Shares of a particular Sub-Trust and all expenses,
costs, charges and reserves belonging to that class of Shares, and any
general liabilities, expenses, costs, charges or reserves of that
particular Sub-Trust which are not readily identifiable as belonging
to any particular class of Shares of that Sub-Trust shall be allocated
and charged by the Trustees to and among any one or more of the
classes of Shares of that Sub-Trust established and designated from
time to time in such manner and on such basis as the Trustees in their
sole discretion deem fair and equitable. The liabilities, expenses,
costs, charges and reserves allocated and so charged to a Sub-Trust or
class thereof are herein referred to as "liabilities belonging to"
that Sub-Trust or class thereof. Each allocation of liabilities,
expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the Shareholders of all Sub-Trusts
(including any classes thereof) for all purposes. Any creditor of any
Sub-Trust may look only to the assets of that Sub-Trust to satisfy
such creditor's debt.
(c) Dividends. Dividends and distributions on Shares of a
particular Sub-Trust or any class thereof may be paid with such
frequency as the Trustees may determine, which may be daily or
otherwise pursuant to a standing resolution or resolutions adopted
only once or with such frequency as the Trustees may determine, to the
holders of Shares of that Sub-Trust or class, from such of the income
and capital gains, accrued or realized, from the assets belonging to
that Sub-Trust, or in the case of a class, belonging to that Sub-Trust
and allocable to that class, as the Trustees may determine, after
providing for actual and accrued liabilities belonging to that
Sub-Trust or class. All dividends and distributions on Shares of a
particular Sub-Trust or class thereof shall be distributed pro rata to
the holders of Shares of that Sub-Trust or class in proportion to the
number of Shares of that Sub-Trust or class held by such holders at
the date and time of record established for the payment of such
dividends or distributions, except that in connection with any
dividend or distribution program or procedure the Trustees may
determine that no dividend or distribution shall be payable on Shares
as to which the Shareholder's purchase order and/or payment have not
been received by the time or times established by the Trustees under
such program or procedure. Such dividends and distributions may be
made in cash or Shares of that Sub-Trust or class 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 (i) of Section 4.3.
(d) Determination of Treatment as Income and/or Capital. The
Trustees shall have full discretion, to the extent not inconsistent
with the 1940 Act, to determine which items shall be treated as income
and which items as capital; and each such determination and allocation
shall be conclusive and binding upon the Shareholders.
(e) Liquidation. In the event of the liquidation or dissolution
of the Trust, any Sub-Trust or class thereof the Shareholders of each
Sub-Trust or any class thereof that has been established and
designated shall be entitled to receive, when and as declared by the
Trustees, the excess of the assets belonging to that Sub-Trust, or in
the case
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of a class, belonging to that Sub-Trust and allocable to that class,
over the liabilities belonging to that Sub-Trust or class. Upon the
liquidation or dissolution of the Trust or any Sub-Trust or class
pursuant to this Section 4.3(e) the Trustees shall make provisions for
the payment of all outstanding obligations, taxes and other
liabilities, accrued or contingent, of the Trust or that Sub-Trust or
class. The assets so distributable to the Shareholders of any
particular Sub-Trust or class thereof shall be distributed among such
Shareholders in proportion to the relative net asset value, as defined
in Section 4.3(i), of such Shares. The liquidation or dissolution of
any particular Sub-Trust or class thereof may be authorized by vote of
a majority of the Trustees then in office without the approval of the
Shareholders of the Trust or that Sub-Trust or class thereof.
(f) Voting. On each matter submitted to a vote of the
Shareholders, each holder of a Share of each Sub- Trust shall be
entitled to one vote for each whole Share and for a proportionate
fractional vote for each fractional Share standing in his name on the
books of the Trust and all shares of each Sub-Trust or class thereof
shall vote as a separate class, except as to voting for Trustees and
as otherwise required by the 1940 Act. As to any matter which does not
affect the interest of a particular Sub-Trust or class thereof, only
the holders of Shares of one or more of the affected Sub-Trusts or
classes thereof shall be entitled to vote.
(g) Redemption by Shareholder. Each holder of Shares of a
particular Sub-Trust or any class thereof shall have the right at such
times as may be permitted by the Trust, but no less frequently than
once each week, to require the Trust to redeem all or any part of his
Shares of that Sub-Trust or class thereof at a redemption price equal
to the net asset value per Share of that Sub-Trust or class thereof
next determined in accordance with subsection (h) of this Section 4.2
after the Shares are properly tendered for redemption. Payment of the
redemption price shall be in cash; provided, however, that if the
Trustees determine, which determination shall be conclusive, that
conditions exist which make payment wholly in cash unwise or
undesirable, the Trust may make payment wholly or partly in securities
or other assets belonging to the Sub-Trust of which the Shares being
redeemed are part at the value of such securities or assets used in
such determination of net asset value.
Notwithstanding the foregoing, the Trust may postpone payment of the
redemption price and may suspend the right of the holders of Shares of any
Sub-Trust or class thereof to require the Trust to redeem Shares of that Sub-
Trust during any period or at any time when and to the extent permissible under
the 1940 Act.
(h) Redemption by Trust. Each Share of each Sub-Trust or class
thereof that has been established and designated is subject to
redemption by the Trust at the redemption price which would be
applicable if such Share was then being redeemed by the Shareholder
pursuant to subsection (f) of this Section 4.2: (a) at any time, if
the Trustees determine in their sole discretion that failure to so
redeem may have materially adverse consequences to the holders of the
Shares of the Trust or any Sub-Trust thereof or class thereof, or (b)
upon such other conditions as may from time to time be determined by
the Trustees and set forth in the then current Prospectus of the Trust
with respect to maintenance of Shareholder accounts of a minimum
amount. Upon such redemption the holders of the Shares so redeemed
shall have no further right with respect thereto other than to receive
payment of such redemption price.
(i) Net Asset Value. The net asset value per Share of any
Sub-Trust shall be (a) in the case of a Sub- Trust whose Shares are
not divided into classes, the quotient obtained by dividing the value
of the net assets of that Sub-Trust (being the value of the assets
belonging to that Sub-Trust less the liabilities belonging to that
Sub-Trust) by the total number of Shares of that Sub-Trust
outstanding, and (b) in the case of a class of Shares of a Sub-Trust
whose Shares are divided into classes, the quotient obtained by
dividing the value of the assets of that Sub-Trust allocable to such
class (less the liabilities belonging to such class) by the total
number of Shares of such class outstanding; all determined in
accordance with the methods and procedures, including without
limitation those with respect to rounding, established by the Trustees
from time to time.
The Trustees may determine to maintain the net asset value per Share of
any Sub-Trust at a designated constant dollar amount and in connection therewith
may adopt procedures not inconsistent with the 1940 Act for the continuing
declarations of income attributable to that Sub-Trust as dividends payable in
additional Shares of that
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Sub-Trust at the designated constant dollar amount and for the handling of any
losses attributable to that Sub-Trust. Such procedures may provide that in the
event of any loss each Shareholder shall be deemed to have contributed to the
capital of the Trust attributable to that Sub-Trust his pro rata portion of the
total number of Shares required to be canceled in order to permit the net asset
value per Share of that Sub-Trust to be maintained, after reflecting such loss,
at the designated constant dollar amount. Each Shareholder of the Trust shall be
deemed to have agreed, by his investment in any Sub-Trust with respect to which
the Trustees shall have adopted any such procedure, to make the contribution
referred to in the preceding sentence in the event of any such loss.
(j) Transfer. All Shares of each particular Sub-Trust or class
thereof shall be transferable, but transfers of Shares of a particular
Sub-Trust or class thereof will be recorded on the Share transfer
records of the Trust applicable to that Sub-Trust or class only at
such times as Shareholders shall have the right to require the Trust
to redeem Shares of that Sub-Trust or class and at such other times as
may be permitted by the Trustees.
(k) Equality. Except as provided herein or in the instrument
designating and establishing any class of Shares or any Sub-Trust, all
Shares of each particular Sub-Trust or class thereof shall represent
an equal proportionate interest in the assets belonging to that
Sub-Trust, or in the case of a class, belonging to that Sub-Trust and
allocable to that class (subject to the liabilities belonging to that
Sub-Trust or class), and each Share of any particular Sub-Trust or
class shall be equal to each other Share of that Sub-Trust or class;
but the provisions of this sentence shall not restrict any
distinctions permissible under Subsection (a) of this Section 4.3 that
may exist with respect to dividends and distributions on Shares of the
same Sub-Trust or class. The Trustees may from time to time divide or
combine the Shares of any particular Sub-Trust or class into a greater
or lesser number of Shares of that Sub-Trust or class without thereby
changing the proportionate beneficial interest in the assets belonging
to that Sub- Trust or class or in any way affecting the rights of
Shares of any other Sub-Trust or class.
(l) Fractions. Any fractional Share of any Sub-Trust or class, if
any such fractional Share is outstanding, shall carry proportionately
all the rights and obligations of a whole Share of that Sub-Trust or
class, including rights and obligations with respect to voting,
receipt of dividends and distributions, redemption of Shares, and
liquidation of the Trust.
(m) Conversion Rights. Subject to compliance with the
requirements of the 1940 Act, the Trustees shall have the authority to
provide that holders of Shares of any Sub-Trust or class thereof shall
have the right to convert said Shares into Shares of one or more other
Sub-Trust or class thereof in accordance with such requirements and
procedures as may be established by the Trustees.
(n) Class Differences. The relative rights and preferences of the
classes of any Sub-Trust may differ in such other respects as the
Trustees may determine to be appropriate in their sole discretion,
provided that such differences are set forth in the resolutions
adopted by the Trustees or the instrument establishing and designating
such classes and executed by a majority of the Trustees (or by an
instrument executed by an officer of the Trust pursuant to a vote of a
majority of the Trustees).
Section 4.4 Ownership of Shares. The ownership of Shares shall be
recorded on the books of the Trust or of a transfer or similar agent for the
Trust, which bocks shall be maintained separately for the Shares of each Sub-
Trust and each class thereof that has been established and designated. No
certificates certifying the ownership of Shares need be issued except as the
Trustees may otherwise determine from time to time. The Trustees may make such
rules as they consider appropriate for the assurance of Shares certificates, the
use of facsimile signatures, the transfer of Shares and similar matters. The
record books of the Trust as kept by the Trust or any transfer or similar agent,
as the case may be, shall be conclusive as to who are the Shareholders and as to
the number of Shares of each Sub-Trust and class thereof held from time to time
by each such Shareholder.
Section 4.5 Investments in the Trust. The Trustees may accept
investments in the Trust and each Sub-Trust thereof from such persons and on
such terms and for such consideration, not inconsistent with the provisions of
the
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1940 Act, as they from time to time authorize. The Trustees may authorize any
distributor, principal underwriter, custodian, transfer agent or other person to
accept orders for the purchase of Shares that conform to such authorized terms
and to reject any purchase orders for Shares whether or not conforming to such
authorized terms.
Section 4.6 No Pre-emptive Rights. Shareholders shall have no
pre-emptive or other right to subscribe to any additional Shares or other
securities issued by the Trust.
Section 4.7 Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to the personal property giving only the rights provided
in this instrument. Every Shareholder by virtue of having become a Shareholder
shall be held to have expressly assented and agreed to the terms hereof and to
have become a party hereto. The death of a Shareholder during the continuance of
the Trust shall not operate to terminate the Trust or any Sub-Trust thereof nor
entitle the representative of any deceased Shareholder to an accounting or to
take any action in court or elsewhere against the Trust or the Trustees, but
only to the rights of said decedent under this Trust. Ownership of Shares shall
not entitle the Shareholder to any title in or to the whole or any part of the
Trust property or right to call for a partition or division of the same or for
an accounting, nor shall the ownership of Shares constitute the Shareholders
partners. Neither the Trust nor the Trustees, nor any officer, employee or agent
of the Trust shall have any power to bind personally any Shareholder, nor except
as specifically provided herein to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the Shareholder may
at any time personally agree to pay.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 5.1 Voting Powers. The Shareholders shall have power to vote
only (i) for the election or removal of Trustees as provided in Section 3.1,
(ii) with respect to any contract with a Contracting Party as provided in
Section 3.3 as to which Shareholder approval is required by the 1940 Act, (iii)
with respect to any reorganization of the Trust or any Sub-Trust to the extent
and as provided in Sections 7.2, (iv) with respect to any amendment of this
Declaration of Trust to the extent and as provided in Section 7.3, (v) to the
same extent as the stockholders of a Massachusetts business corporation as to
whether or not a court action, proceeding or claim should or should not be
brought or maintained derivatively or as a class action on behalf of the Trust
or any Sub-Trust thereof or the Shareholders, (provided, however, that a
shareholder of a particular Sub-Trust shall not be entitled to a derivative or
class action on behalf of any other Sub-Trust (or shareholder of any other
Sub-Trust) of the Trust) and (vi) with respect to such additional matters
relating to the Trust as may be required by the 1940 Act, this Declaration of
Trust, the By-Laws or any registration of the Trust with the Commission (or any
successor agency) or any state, or as the Trustees may consider necessary or
desirable. There shall be no cumulative voting in the election of Trustees.
Shares may be voted in person or by proxy. Proxies may be given orally or in
writing or pursuant to any computerized or mechanical data gathering process
specifically approved by the Trustees. A proxy with respect to Shares held in
the name of two or more persons shall be valid if executed by any one of them
unless at or prior to exercise of the proxy the Trust receives a specific
written notice to the contrary from any one of them. A proxy purporting to be
executed by or on behalf of a Shareholder shall be deemed valid unless
challenged at or prior to its exercise and the burden of proving invalidity
shall rest on the challenger. Until Shares are issued, the Trustees may exercise
all rights of Shareholders and may take any action required by law, this
Declaration of Trust or the By-Laws to be taken by Shareholders.
Section 5.2 Meetings. No annual or regular meeting of Shareholders is
required. Special 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
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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 a meeting be called for
a 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 5.3 Record Dates. For the purpose of determining the
Shareholders who are entitled to vote or act at any meeting or any adjournment
thereof, or who are entitled to participate in any dividend or distribution, or
for the purpose of any other action, the Trustees may from time to time close
the transfer books for such period, not exceeding 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 5.4 Quorum and Required Vote. Thirty percent (30%) of the
Shares entitled to vote shall be a quorum for the transaction of business at a
Shareholders' meeting, but any lesser number shall be sufficient for
adjournments. Any adjourned session or sessions may be held, within a reasonable
time after the date set for the original meeting without the necessity of
further notice. A majority of the Shares voted, at a meeting of which a quorum
is present, shall decide any questions and a plurality shall elect a Trustee,
except when a different vote is required or permitted by any provision of the
1940 Act or other applicable law or by this Declaration of Trust or the By-Laws.
Section 5.5 Action by Written Consent. Subject to the provisions of the
1940 Act and other applicable law, any action taken by Shareholders may be taken
without a meeting if a majority of Shareholders entitled to vote on the matter
(or such larger proportion thereof as shall be required by the 1940 Act or by
any express provision of this Declaration of Trust or the By-Laws) consent to
the action in writing and such written consents are filed with the records of
the meetings of Shareholders. Such consent shall be treated for all purposes as
a vote taken at a meeting of Shareholders.
Section 5.6 Inspection of Records. The records of the Trust shall be
open to inspection by Shareholders to the same extent as is permitted
stockholders of a Massachusetts business corporation under the Massachusetts
Business Corporation Law.
Section 5.7 Additional Provisions. The By-Laws may include farther
provisions for Shareholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
Section 5.8 Shareholder Communications. Whenever ten or more
Shareholders of record have been such for at least six months preceding the date
of application, and who hold in the aggregate either Shares having a net asset
value of at least $25,000 or at least one percent (1%) of the outstanding
Shares, whichever is less, shall apply to the Trustees in writing, stating that
they wish to communicate with other Shareholders with a view to obtaining
signatures to a request for a Shareholder meeting and accompanied by a form of
communication and request which they wish to transmit, the Trustees shall within
five (5) business days after receipt of such application either (1) afford to
such applicants access to a list of the names and addresses of all Shareholders
as recorded on the books of
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the Trust or Sub-Trust, as applicable; or (2) inform such applicants as to the
approximate number of Shareholders of record, and the approximate cost of
mailing to them the proposed communication and form of request.
If the Trustees elect to follow the course specified in Section 5.2
above the Trustees, upon the written request of such applicants, accompanied by
a tender of the material to be mailed and of the reasonable expenses of mailing,
shall, with reasonable promptness, mail such material to all Shareholders of
record at their addresses as recorded on the books, unless within five (5)
business days after such tender the Trustees shall mail to such applicants and
file with the Commission, together with a copy of the material to be mailed, a
written statement signed by at least a majority of the Trustees to the effect
that in their opinion either such material contains untrue statements of fact or
omits to state facts necessary to make the statements contained therein not
misleading, or would be in such violation of applicable law, and specifying the
basis of such opinion. The Trustees shall thereafter comply with the
requirements of the 1940 Act.
ARTICLE VI
LIMITATION OF LIABILITY: INDEMNIFICATION
Section 6.1 Trustees, Shareholders, etc. Not Personally Liable: Notice.
All persons extending credit to, contracting with or having any claim against
the Trust shall look only to the assets of the Sub-Trust with which such person
dealt for payment under such credit, contract or claim; and neither the
Shareholders of any Sub-Trust nor the Trustees, nor any of the Trust's officers,
employees or agents, whether past, present or future, nor any other Sub- Trust
shall be personally liable therefor. Every note, bond, contract, instrument,
certificate or undertaking and every other act or thing whatsoever executed or
done by or on behalf of the Trust, any Sub-Trust or the Trustees or any of them
in connection with the Trust shall be conclusively deemed to have been executed
or done only by or for the Trust (or the Sub-Trust) or the Trustees and not
personally. Nothing in this Declaration of Trust shall protect any Trustee or
officer against any liability to the Trust or the Shareholders to which such
Trustee or officer would otherwise be subject by reason of wilful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee or of such officer.
Section 6.2 Notice for Contracts. Every note, bond, contract,
instrument, certificate or undertaking made or issued by the Trustees or by any
officers or officer shall give notice that this Declaration of Trust is on file
with the Secretary of The Commonwealth of Massachusetts and shall recite to the
effect that the same was executed - or made by or on behalf of the Trust or by
them as Trustees or Trustee or as officers or officer and not individually and
that the obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and property of
the Trust, or the particular Sub-Trust in question, as the case may be, but the
omission thereof shall not operate to bind any Trustees or Trustee or officers
or officer or Shareholders or Shareholder individually.
Section 6.3 Trustee's Good Faith Action: Expert Advice: No Bond or Surety.
The exercise by the Trustees of their powers and discretions hereunder shall be
binding upon everyone interested. A Trustee shall be liable for his own wilful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee, and for nothing else, and
shall not be liable for errors of judgment or mistakes of fact or law. Subject
to the foregoing, (a) the Trustees shall not be responsible or liable in any
event for any neglect or wrongdoing of any officer, agent, employee, consultant,
adviser, administrator, distributor or principal underwriter, custodian or
transfer, dividend disbursing, Shareholder servicing or accounting agent of the
Trust, nor shall any Trustee be responsible for the act or omission of any other
Trustee; (b) the Trustees may take advice of counsel or other experts with
respect to the meaning and operation of this Declaration of Trust and their
duties as Trustees, and shall be under no liability for any act or omission in
accordance with such advice or for failing to follow such advice; and (c) in
discharging their duties, the Trustees, when acting in good faith, shall be
entitled to rely upon the books of account of the Trust and upon written reports
made to the Trustees by any officer appointed by them, any independent public
accountant, and (with respect to the subject matter of the contract involved)
any officer, partner or responsible employee of a Contracting Party appointed by
the Trustees pursuant to Section 3.3. The Trustees as such shall not be required
to give any bond or surety or any other security for the performance of their
duties.
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Section 6.4 Indemnification of Shareholders. In case any Shareholder
(or former Shareholder) of any Sub- Trust of the Trust shall be charged or held
to be personally liable for any obligation or liability of the Trust solely by
reason of being or having been a Shareholder and not because of such
Shareholder's acts or omissions or for some other reason, said Sub-Trust (upon
proper and timely request by the Shareholder) shall assume the defense against
such charge and satisfy any judgment thereon, and the Shareholder or former
Shareholder (or his heirs, executors, administrators or other legal
representatives or in the case of a corporation or other entity, its corporate
or other general successor) shall be entitled out of the assets of said
Sub-Trust estate to be held harmless from and indemnified against all loss and
expense arising from such liability.
Section 6.5 Indemnification of Trustees, Officers, etc. The Trust shall
indemnify (from the assets of the Sub- Trust or Sub-Trusts in question) each of
its Trustees and officers (including persons who serve at the Trust's request as
directors, officers or trustees of another organization in which the Trust has
any interest as a shareholder, creditor or otherwise [hereinafter referred to as
a "Covered Person"]) against all liabilities, including but not limited to
amounts paid in satisfaction of judgments, in compromise or as fines and
penalties, and expenses, including reasonable accountants' and counsel fees,
incurred by any Covered Person in connection with the defense or disposition of
any action, suit or other proceeding, whether civil or criminal, before any
court or administrative or legislative body, in which such Covered Person may be
or may have been involved as a party or otherwise or with which such person may
be or may have been threatened, while in office or thereafter, by reason of
being or having been such a Trustee or officer, director or trustee, except with
respect to any matter as to which it has been determined in one of the manners
described below, 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 wilful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of such Covered Person's office (either and both of the conduct
described in (i) and (ii) being referred to hereafter as "Disabling Conduct"). A
determination that the Covered Person is entitled to indemnification, despite
allegations of Disabling Conduct, may be made by (i) a final decision on the
merits by a court or other body before whom the proceeding was brought that the
person to be indemnified was not liable by reason of Disabling Conduct, (ii)
dismissal of a court action or an administrative proceeding against a Covered
Person for insufficiency of evidence of Disabling Conduct, or (iii) a reasonable
determination, based upon a review of the facts, that the indemnitee was not
liable by reason of Disabling Conduct by (a) a vote of a majority of a quorum of
Trustees who are neither "interested persons" of the Trust as defined in section
2(a)(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 in advance of the final disposition of any such action, suit
or proceeding, provided that the Covered Person shall have undertaken to repay
the amounts so paid to the Sub-Trust in question if it is ultimately determined
that indemnification of such expenses is not authorized under this Article VI
and (i) the Covered Person shall have provided security for such undertaking,
(ii) the Trust shall be insured against losses arising by reason of any lawful
advances, or (iii) a majority of a quorum of the disinterested Trustees who are
not a party to the proceeding, or an independent legal counsel in a written
opinion, shall have determined, based on a review of readily available facts (as
opposed to a full trial-type inquiry), that there is reason to believe that the
Covered Party ultimately will be found entitled to indemnification.
Section 6.6 Compromise Payment. As to any matter disposed of by a
compromise payment by any such Covered Person referred to in Section 6.4,
pursuant to a consent decree or otherwise, no such indemnification either for
said payment or for any other expenses shall be provided unless such
indemnification shall be approved (a) by a majority of the disinterested
Trustees who are not a party to the proceeding or (b) by an independent legal
counsel in a written opinion. Approval by the Trustees pursuant to clause (a) or
by independent legal counsel pursuant to clause (b) shall not prevent the
recovery from any Covered Person of any amount paid to such Covered Person in
accordance with any of such clauses as indemnification if such Covered Person is
subsequently adjudicated by a
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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 wilful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such Covered
Person's office.
Section 6.7 Indemnification Not Exclusive, etc. The right of
indemnification provided by this Article VI shall not be exclusive of or affect
any other rights to which any such Covered Person may be entitled. As used. in
this Article VI, "Covered Person" shall include such person's heirs, executors
and administrators, an "interested Covered Person" is one against whom the
action, suit or other proceeding in question or another action, suit or other
proceeding on the same or similar grounds is then or has been pending or
threatened, and a "disinterested" person is a person against whom none of such
actions, suits or other proceedings or another action, suit or other proceeding
on the same or similar grounds is then or has been pending or threatened.
Nothing contained in this article shall affect any rights to indemnification to
which personnel of the Trust, other than Trustees and officers, and other
persons may be entitled by contract or otherwise under law, nor the power of the
Trust to purchase and maintain liability insurance on behalf of any such person.
Section 6.8 Liability of Third Persons Dealing with Trustees. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Duration and Termination of Trust. Unless terminated as
provided herein, the Trust shall continue without limitation of time and,
without limiting the generality of the foregoing, no change, alteration or
modification with respect to any Sub-Trust or class thereof shall operate to
terminate the Trust. The Trust, any Sub- Trust or class thereof may be
terminated at any time by a majority of the Trustees then in office, provided
that (1) the distribution of any remaining proceeds or assets of the Trust, any
Sub-Trust or class thereof, as the case may be, pursuant to Section 4.3(e), has
been completed or (2) no shares of the Trust, such Sub-Trust or class thereof,
as the case may be, are then outstanding.
Section 7.2 Reorganization. The Trustees may sell, convey, merge and
transfer the assets of the Trust, or the assets belonging to any one or more
Sub-Trusts, to another trust, partnership, association or corporation organized
under the laws of any state of the United States, or to the Trust to be held as
assets belonging to another Sub-Trust of the Trust, in exchange for cash, shares
or other securities (including, in the case of a transfer to another Sub-Trust
of the Trust, Shares of such other Sub-Trust or class thereof) with such
transfer either (1) being made subject to, or with the assumption by the
transferee of, the liabilities belonging to each Sub-Trust the assets of which
are so transferred, or (2) not being made subject to, or not with the assumption
of, such liabilities; provided, however, that no assets belonging to any
particular Sub-Trust shall be so transferred unless the terms of such transfer
shall have first been approved at a meeting called for the purpose by the
affirmative vote of the holders of a majority of the outstanding voting Shares,
as defined in the 1940 Act, of that Sub-Trust. Following such transfer, the
Trustees shall distribute such cash, shares or other securities (giving due
effect to the assets and liabilities belonging to and any other difference among
the various Sub-Trusts and classes the assets belonging to which have been so
transferred) among the Shareholders of the Sub-Trust the assets belonging to
which have been so transferred; and if all of the assets of the Trust have been
so transferred, the Trust shall be terminated.
The Trust, or any one or more Sub-Trusts, may, either as the successor,
survivor, or nonsurvivor, (1) consolidate with one or more other trusts,
partnerships, associations or corporations organized under the laws of the
Commonwealth of Massachusetts or any other state of the United States, to form a
new consolidated trust, partnership, association or corporation under the laws
of which any one of the constituent entities is organized, or
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Second Amended and Restated Master Trust Agreement
(2) merge into one or more other trusts, partnerships, associations or
corporations organized under the laws of the Commonwealth of Massachusetts or
any other state of the United States, or have one or more such trusts,
partnerships, associations or corporations merged into it, any such
consolidation or merger to be upon such terms and conditions as are specified in
an agreement and plan of reorganization entered into by the Trust, or one or
more Sub-Trusts as the case may be, in connection therewith. The terms "merge"
or "merger" as used herein shall also include the purchase or acquisition of any
assets of any other trust, partnership, association or corporation which is an
investment company organized under the laws of the Commonwealth of Massachusetts
or any other state of the United States. Any such consolidation or merger shall
require the affirmative vote of the holders of a majority of the outstanding
voting Shares, as defined in the 1940 Act, of each Sub-Trust affected thereby.
Section 7.3 Amendments. All rights granted to the Shareholders under
this Declaration of Trust are granted subject to the reservation of the right to
amend this Declaration of Trust as herein provided, except that no amendment
shall repeal the limitations on personal liability of any Shareholder or Trustee
or repeal the prohibition of assessment upon the Shareholders without the
express consent of each Shareholder or Trustee involved. Subject to the
foregoing, the provisions of this Declaration of Trust (whether or not related
to the rights of Shareholders) may be amended at any time, so long as such
amendment does not adversely affect the rights of any Shareholder with respect
to which such amendment is or purports to be applicable and so long as such
amendment is not in contravention of applicable law, including the 1940 Act, by
an instrument in writing signed by a majority of the then Trustees (or by an
officer of the Trust pursuant to the vote of a majority of such Trustees). Any
amendment to this Declaration of Trust that adversely affects the rights of
Shareholders may be adopted at any time by an instrument in writing signed by a
majority of the then Trustees (or by an officer of the Trust pursuant to a vote
of a majority of such Trustees) when authorized to do so by the vote in
accordance with Subsection (f) of Section 4.2 of Shareholders holding a majority
of the Shares entitled to vote. Subject to the foregoing, any such amendment
shall be effective as provided in the instrument containing the terms of such
amendment or, if there is no provision therein with respect to effectiveness,
upon the execution of such instrument and of a certificate (which may be a part
of such instrument) executed by a Trustee or officer of the Trust to the effect
that such amendment has been duly adopted.
Section 7.4 Filing of Copies: References, Headings. The original or a
copy of this instrument and of each amendment hereto shall be kept at the office
of the Trust where it may be inspected by any Shareholder. A copy of this
instrument and of each amendment hereto shall be filed by the Trust with the
Secretary of The Commonwealth of Massachusetts and with the Boston City Clerk,
as well as any other governmental office where such filing may from time to time
be required, but the failure to make any such filing shall not impair the
effectiveness of this instrument or any such amendment. Anyone dealing with the
Trust may rely on a certificate by an officer of the Trust as to whether or not
any such amendments have been made, as to the identities of the Trustees and
officers, and as to any matters in connection with the Trust hereunder and, with
the same effect as if it were the original, may rely on a copy certified by an
officer of the Trust to be a copy of this instrument or of any such amendments.
In this instrument and in any such amendment, references to this instrument, and
all expressions like "herein," "hereof' and hereunder" shall be deemed to refer
to this instrument as a whole as the same may be amended or affected by any such
amendments. The masculine gender shall include the feminine and neuter genders.
Headings are placed herein for convenience of reference only and shall not be
taken as a part hereof or control or affect the meaning, construction or effect
of this instrument. This instrument may be executed in any number of
counterparts each of which shall be deemed an original.
Section 7.5 Applicable Law. This Declaration of Trust is made in The
Commonwealth of Massachusetts, and it is created under and is to be governed by
and construed and administered according to the laws of said Commonwealth,
including the Massachusetts Business Corporation Law as the same may be amended
from time to time, to which reference is made with the intention that matters
not specifically covered herein or as to which an ambiguity may exist shall be
resolved as if the Trust were a business corporation organized in Massachusetts,
but the reference to said Business Corporation Law is not intended to give the
Trust, the Trustees, the Shareholders or any other person any right, power,
authority or responsibility available only to or in connection with an entity
organized in corporate form. The Trust shall be of the type referred to in
Section 1 of Chapter 182 of the
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Second Amended and Restated Master Trust Agreement
Massachusetts General Laws and of the type commonly called a Massachusetts
business trust, and without limiting the provisions hereof, the Trust may
exercise all cowers which are ordinarily exercised by such a trust.
Section 7.6 Resident Agent. Edward T. O'Dell, Jr., Goodwin, Procter & Hoar,
Exchange Place, Boston, Massachusetts is hereby designated as the resident agent
of the Trust in Massachusetts.
IN WITNESS WHEREOF, the undersigned have hereunto set their hand and seals
for themselves and their assigns, as of the day and year first above written.
/s/ John P. Allen
-----------------------------
John P. Allen
/s/ E. Douglas Hodo
-----------------------------
E. Douglas Hodo
/s/ Frank E. Holmes
-----------------------------
Frank E. Holmes
/s/ Clark R. Mandigo
-----------------------------
Clark R. Mandigo
/w/ Walter W. McAllister, III
-----------------------------
Walter W. McAllister, III
/s/ W.C.J. van Rensburg
-----------------------------
W.C.J. van Rensburg
STATE OF TEXAS )
)ss
COUNTY OF BEXAR )
Then personally appeared before me the above named and acknowledged the
foregoing instrument to be their free act and deed this 16th day of
August, 2000.
/s/ Stacy G. Henk
-----------------------------
Notary Public
S E A L
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