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Exhibit 99.(a)(ii)
FIRST AMENDED AND RESTATED DECLARATION OF TRUST
OF
streetTRACKS(SM) SERIES TRUST
THE FIRST AMENDED AND RESTATED DECLARATION OF TRUST of streetTRACKS(SM)
Series Trust, formerly known as The Index Exchange Listed Securities Trust, is
made the 6th day of September, 2000 to the DECLARATION OF TRUST dated the 9th
day of June, 1998 and filed the 12th day of June, 1998, by the signatory hereto,
as trustee (such person, so long as he shall continue in office in accordance
with the terms of this Declaration of Trust, and all other persons who at the
time in question have been duly elected or appointed as trustees in accordance
with the provisions of this Declaration of Trust and are then in office, being
hereinafter called the "Trustees").
WITNESSETH:
WHEREAS, it is the intention that the Trust constitute a trust fund
under the laws of The Commonwealth of Massachusetts for the investment and
reinvestment of funds contributed thereto; and
WHEREAS, it is provided that the beneficial interests in the trust
assets be divided into transferable shares of beneficial Share as hereinafter
provided;
NOW, THEREFORE, the Trustees hereby declare that they will hold in
trust, all money and property contributed to the trust fund to manage and
dispose of the same for the benefit of the Shareholders from time to time of the
shares of beneficial interest and subject to the provisions hereof, to wit:
ARTICLE I
SECTION 1.1 NAME. The name of the trust created hereby is the
"streetTRACKS(SM) Series Trust," and so far as may be practicable the Trustees
shall conduct the Trust's activities, execute all documents and sue or be sued
under that name, which name (and the word "Trust" wherever herein used) shall
refer to the Trustees as Trustees, and not as individuals, or personally, and
shall not refer to the officers, agents, employees or Shareholders of the Trust.
Should the Trustees determine that the use of such name is not
advisable, they may use such other name for the Trust as they deem proper and
the Trust may hold its property and conduct its activities under such other
name.
SECTION 1.2 DEFINITIONS. Wherever they are used herein, the following
terms have the following respective meanings:
(a) "BYLAWS" means the Bylaws referred to in Section 3.9 hereof,
as from time to time amended.
(b) "CODE" means the United States Internal Revenue Code of 1986,
as amended from time to time.
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(c) "COMMISSION" has the meaning given to it in the 1940 Act.
(d) "DECLARATION" means this Declaration of Trust as amended from
time to time. Reference in this Declaration of Trust to
"DECLARATION," "HEREOF," "HEREIN," and "HEREUNDER" shall be
deemed to refer to this Declaration rather than the article or
section in which such words appear.
(e) "DISTRIBUTOR" means the party, other than the Trust, to a
contract described in Section 4.3 hereof.
(f) "INVESTMENT ADVISER" means any party other than the Trust, to
an investment advisory contract described in Section 4.1
hereof.
(g) "MAJORITY SHAREHOLDER VOTE" means the vote of Shareholders
holding a majority of Shares, which shall consist of:
i. a majority of Shares represented in person or by
proxy and entitled to vote at a meeting of
Shareholders at which a quorum, as determined in
accordance with the Bylaws, is present;
ii. a majority of Shares issued and outstanding and
entitled to vote when action is taken by written
consent of Shareholders; and
iii. a "majority of the outstanding voting securities," as
the phrase is defined in the 1940 Act, when the 1940
Act requires the vote of such a majority as so
defined for the action in question to be taken.
(h) "MANAGER" means any party, other than the Trust, to a
management contract described in Section 4.1 hereof.
(i) "1940 ACT" means the Investment Company Act of 1940 and the
rules and regulations thereunder as amended from time to time.
(j) "PERSON" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures and other
entities, whether or not legal entities, and governments and
agencies and political subdivisions thereof.
(k) "REGISTRATION STATEMENT" means the Registration Statement of
the Trust under the Securities Act of 1933 as such may be
amended or supplemented and filed with the Commission from
time to time.
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(l) "SERIES" means one of the separately managed components of the
Trust (or, if the Trust shall have only one such component,
then that one) as set forth in Section 6.1 hereof or as may be
established and designated from time to time by the Trustees
pursuant to that section.
(m) "SHAREHOLDER" means a record owner of outstanding Shares.
(n) "SHARES" means the units of interest into which the beneficial
interest in the Trust shall be divided from time to time,
including the shares of any and all series or classes which
may be established by the Trustees, and includes fractions of
Shares as well as whole Shares.
(o) "TRANSFER AGENT" means the party, other than the Trust, to the
contract described in Section 4.4 hereof.
(p) "TRUST" means the streetTRACKS(SM) Series Trust.
(q) "TRUST PROPERTY" means any and all property real or personal,
tangible or intangible, which is owned or held by or for the
account of the Trust or the Trustees.
(r) "TRUSTEES" means the persons who have signed the Declaration,
so long as they shall continue in office in accordance with
the terms hereof, and all other persons who may from time to
time be duly elected or appointed, qualified and serving as
Trustees in accordance with the provisions hereof, and
reference herein to a Trustee or the Trustees shall refer to
such person or persons in their capacity as trustees
hereunder.
ARTICLE II
TRUSTEES
SECTION 2.1 NUMBER OF TRUSTEES. The initial Trustee shall be Edmund J.
Burke, 370 17th Street Suite 3100, Denver, Colorado 80202. The Trustees serving
as such, whether named above or hereafter becoming Trustees, may increase or
decrease the number of Trustees to a number other than the number theretofore
determined, so long as the number shall never be less than two (2); provided,
however, that the number of Trustees may be one (1) until such time as the
initial Trustee shall elect additional Trustees.
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SECTION 2.2 ELECTION AND TERM. Trustees may become such by election by
Shareholders or by the Trustees then in office pursuant to Section 2.4 hereof.
The Trustees shall have the power to set and alter the terms of office of the
Trustees, and they may at any time lengthen or lessen their own terms or make
their terms of unlimited duration, subject to the resignation and removal
provisions of Section 2.3 hereof. The Trustees may adopt Bylaws that divide the
Trustees into classes and prescribe the tenure of office of the several classes.
The Trustees may elect their own successors and may, pursuant to Section 2.4
hereof, appoint Trustees to fill vacancies. The Trustees shall adopt Bylaws not
inconsistent with this Declaration or any provision of law to provide for
election of Trustees by Shareholders at such time or times as the Trustees shall
determine to be necessary or advisable.
SECTION 2.3 RESIGNATION AND REMOVAL. Any Trustee may resign his or her
trust (without need for prior or subsequent accounting) by an instrument in
writing signed by him or her and delivered to the other Trustees and such
resignation shall be effective upon such delivery, or at a later date according
to the terms of the instrument. Any of the Trustees may be removed (provided the
aggregate number of Trustees after such removal shall not be less than one) by
the action of two-thirds of the remaining Trustees or by the action of
Shareholders holding of record of not less than two-thirds of the Shares
outstanding and entitled to vote thereupon (for purposes of determining the
circumstances and procedures under which such removal by the Shareholders may
take place, the provisions of Section 16(c) of the 1940 Act shall be applicable
to the same extent as if the Trust were subject to the provisions of that
Section). Upon the resignation or removal of a Trustee, or his or her otherwise
ceasing to be a Trustee, he or she shall execute and deliver such documents as
the remaining Trustees shall require for the purpose of conveying to the Trust
or the remaining Trustees any Trust Property held in the name of the resigning
or removed Trustee. Upon the incapacity or death of any Trustee, his or her
legal representative shall execute and deliver on his or her behalf such
documents as the remaining Trustees shall require as provided in the preceding
sentence. The provisions of this Section 2.3 may not be amended except by a vote
of Shareholders holding not less than two-thirds of the Shares.
SECTION 2.4 VACANCIES. The term of office of a Trustee shall terminate
and a vacancy shall occur in the event of the death, resignation, removal,
bankruptcy, adjudicated incompetence or other incapacity to perform the duties
of the office of a Trustee. No such vacancy shall operate to annul the
Declaration or to revoke any existing agency created pursuant to the terms of
the Declaration. In the case of an existing vacancy, the remaining Trustees or,
prior to the public offering of Shares of the Trust, if only one Trustee shall
then remain in office, the remaining Trustee, shall fill such vacancy by the
appointment of such other Person as they or he/she, in their or his/her
discretion, shall see fit, made by a written instrument signed by a majority of
the remaining Trustees or by the remaining Trustee, as the case may be. An
appointment of a Trustee may be made in anticipation of a vacancy to occur at a
later date by reason of retirement, resignation or increase in the number of
Trustees, provided that such appointment shall not become effective prior to
such retirement, resignation or increase in the number of Trustees. Whenever a
vacancy in the number of Trustees shall occur, until such vacancy is filled as
provided in this Section 2.4, the Trustees in office, regardless of their
number, shall have all the powers granted to the Trustees and shall discharge
all the duties imposed upon the Trustees by the Declaration. A written
instrument certifying the existence of
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such vacancy signed by a majority of the Trustees shall be conclusive evidence
of the existence of such vacancy.
SECTION 2.5 DELEGATION OF POWER TO OTHER TRUSTEES. Any Trustee may, by
power of attorney, delegate his or her power for a period not exceeding six (6)
months at any one time to any other Trustee or Trustees; provided that in no
case shall fewer than two (2) Trustees personally exercise the powers granted to
the Trustees under the Declaration except as herein otherwise expressly
provided.
ARTICLE III
POWERS OF TRUSTEES
SECTION 3.1 GENERAL. The Trustees shall have exclusive and absolute
control over the Trust Property and over the business of the Trust to the same
extent as if the Trustees were the sole owners of the Trust Property and
business in their own right, but with such powers of delegation as may be
permitted by the Declaration. The Trustees shall have power to conduct the
business of the Trust and carry on its operations in any and all of its branches
and maintain offices both within and without The Commonwealth of Massachusetts,
in any and all states of the United States of America, in the District of
Columbia, and in any and all commonwealths, territories, dependencies, colonies,
possessions, agencies or instrumentalities wheresoever in the world they may be
located as they deem necessary, proper or desirable in order to promote the
interests of the Trust although such things are not herein specifically
mentioned. Any determination as to what is in the interests of the Trust made by
the Trustees in good faith shall be conclusive. In construing the provisions of
the Declaration, the presumption shall be in favor of a grant of power to the
Trustees.
The enumeration of any specific power herein shall not be construed as
limiting the aforesaid power. Such powers of the Trustees may be exercised
without order of or resort to any court.
SECTION 3.2 INVESTMENTS. The Trustees shall have the power to:
a) conduct, operate and carry on the business of an investment
company;
b) subscribe for, invest in, reinvest in, purchase or otherwise
acquire, hold, pledge, sell, assign, transfer, exchange,
distribute, lend or otherwise deal in or dispose of negotiable
or nonnegotiable instruments, obligations, evidences of
indebtedness, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, reverse repurchase
agreements, options, commodities, commodity future contracts
and related options, currencies, currency futures and forward
contracts, and other securities, investment contracts and
other instruments of any kind, including, without limitation,
those issued, guaranteed or sponsored by any and all Persons
including, without limitation, states, territories and
possessions of the United States, the District of Columbia and
any of the political subdivisions, agencies or
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instrumentalities thereof, and by the United States Government
or its agencies or instrumentalities, foreign or international
instrumentalities, or by any bank or savings institution, or
by any corporation or organization organized under the laws of
the United States or of any state, territory or possession
thereof, and of corporations or organizations organized under
foreign laws, or in "when issued" contracts for any such
securities, or retain Trust assets in cash and from time to
time change the investments of the assets of the Trust; and to
exercise any and all rights, powers and privileges of
ownership or interest in respect of any and all such
investments of every kind and description, including, without
limitation, the right to consent and otherwise act with
respect thereto, with power to designate one or more persons,
firms, associations or corporations to exercise any of said
rights, powers and privileges in respect of any of said
instruments.
The Trustees shall not be limited to investing in obligations maturing
before the possible termination of the Trust, nor shall the Trustees be limited
by any law limiting the investments which may be made by fiduciaries.
SECTION 3.3 LEGAL TITLE. 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 in the name of any
other Person as nominee, on such terms as the Trustees may determine, provided
that the interest of the Trust 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
resignation, removal or death of a Trustee he or she shall automatically cease
to have any right, title or interest in any of the Trust Property, and the
right, title and interest of such Trustee in the Trust Property shall vest
automatically in the remaining Trustees. Such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered.
SECTION 3.4 ISSUANCE AND REPURCHASE OF SECURITIES. The Trustees shall
have the power to issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of, transfer, and otherwise deal in Shares and,
subject to the provisions set forth in Articles VII, VIII, and IX and Section
6.9 hereof, to apply to any such repurchase, redemption, retirement,
cancellation or acquisition of Shares any funds or property of the Trust,
whether capital or surplus or otherwise, to the full extent now or hereafter
permitted by the laws of The Commonwealth of Massachusetts governing business
corporations.
SECTION 3.5 BORROWING MONEY; LENDING TRUST ASSETS. The Trustees shall
have power to borrow money or otherwise obtain credit and to secure the same by
mortgaging, pledging or otherwise subjecting as security the assets of the
Trust, to endorse, guarantee, or undertake the performance of any obligation,
contract or engagement of any other Person and to lend Trust assets.
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SECTION 3.6 DELEGATION; COMMITTEES. The Trustees shall have power,
consistent with their continuing exclusive authority over the management of the
Trust and the Trust Property, to delegate from time to time to such of their
number or to officers, employees or agents of the Trust the doing of such things
and the execution of such instruments either in the name of the Trust or the
names of the Trustees or otherwise as the Trustees may deem expedient.
SECTION 3.7 COLLECTION AND PAYMENT. Subject to Section 6.9 hereof, the
Trustees shall have power to collect all property due to the Trust; to pay all
claims, including taxes, against the Trust Property; to prosecute, defend,
compromise or abandon any claims relating to the Trust Property; to foreclose
any security interest securing any obligations, by virtue of which any property
is owed to the Trust; and to enter into releases, agreements and other
instruments.
SECTION 3.8 EXPENSES. Subject to Section 6.9 hereof, the Trustees shall
have the power to incur and pay any expenses which in the opinion of the
Trustees are necessary or incidental to carry out any of the purposes of the
Declaration, and to pay reasonable compensation from the funds of the Trust to
themselves as Trustees. The Trustees shall fix the compensation of all officers,
employees and Trustees.
SECTION 3.9 MANNER OF ACTING; BYLAWS. Except as otherwise provided
herein or in the Bylaws or by any provision of law, 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 being present), including any meeting held by means of a
conference telephone circuit or similar communications equipment by means of
which all persons participating in the meeting can hear each other, or by
written consents of all the Trustees. The Trustees may adopt Bylaws not
inconsistent with this Declaration to provide for the conduct of the business of
the Trust and may amend or repeal such Bylaws to the extent such power is not
reserved to the Shareholders.
SECTION 3.10 MISCELLANEOUS POWERS. The Trustees shall have the power
to:
(a) employ or contract with such Persons as the Trustees may deem
desirable for the transaction of the business of the Trust or
any Series thereof;
(b) enter into joint ventures, partnerships and any other
combinations or associations;
(c) remove Trustees or fill vacancies in or add to their number,
elect and remove such officers and appoint and terminate such
agents or employees as they consider appropriate, and appoint
from their own number, and terminate, any one or more
committees which may exercise some or all of the power and
authority of the Trustees as the Trustees may determine;
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(d) purchase and pay for out of Trust Property or the property of
the appropriate Series of the Trust, insurance policies
insuring the Shareholders, Trustees, officers, employees,
agents, investment advisers, distributors, selected dealers or
independent contractors of the Trust against all claims
arising by reason of holding any such position or by reason of
any action taken or omitted to be taken by any such Person in
such capacity, whether or not constituting negligence, or
whether or not the Trust would have the power to indemnify
such Person against such liability;
(e) establish pension, profit-sharing, Share purchase, and other
retirement, incentive and benefit plans for any Trustees,
officers, employees and agents of the Trust;
(f) indemnify, to the extent permitted by law, any person with
whom the Trust or any Series thereof has dealings, including
any Investment Adviser, Administrator, Distributor, Transfer
Agent and selected dealers, to such extent as the Trustees
shall determine;
(g) guarantee indebtedness or contractual obligations of others;
(h) determine and change the fiscal year of the Trust or any
Series thereof and the method by which its accounts shall be
kept; and
(i) adopt a seal for the Trust but the absence of such seal shall
not impair the validity of any instrument executed on behalf
of the Trust.
SECTION 3.11 LITIGATION. The Trustees shall have the power to engage in
and to prosecute, defend, compromise, abandon, or adjust, by arbitration, or
otherwise, any actions, suits, proceedings, disputes, claims, and demands
relating to the Trust, and out of the assets of the Trust or any Series thereof
to pay or to satisfy any debts, claims or expenses incurred in connection
therewith, including those of litigation, and such power shall include, without
limitation, the power of the Trustees or any appropriate committee thereof, in
the exercise of their or its good faith business judgment, to dismiss any
action, suit, proceeding, dispute, claim, or demand, derivative or otherwise,
brought by any person, including a Shareholder in its own name or the name of
the Trust, whether or not the Trust or any of the Trustees may be named
individually therein or the subject matter arises by reason of business for or
on behalf of the Trust.
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ARTICLE IV
INVESTMENT ADVISER,
MANAGER, DISTRIBUTOR, CUSTODIAN
AND TRANSFER AGENT
SECTION 4.1 INVESTMENT ADVISER AND MANAGER. Subject to applicable
provisions of the 1940 Act, the Trustees may in their discretion from time to
time enter into one or more investment advisory and management contracts or, if
the Trustees establish multiple Series, separate investment advisory and
management contracts with respect to one or more Series whereby the other party
or parties to any such contracts shall undertake to furnish the Trust or such
Series such management, investment advisory, administration, accounting, legal,
statistical and research facilities and services, promotional or marketing
activities, and such other facilities and services, if any, as the Trustees
shall from time to time consider desirable and all upon such terms and
conditions as the Trustees may in their discretion determine. Notwithstanding
any provisions of the Declaration, the Trustees may authorize the Investment
Advisers, or any of them, under any such contracts (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 and other
investments of the Trust on behalf of the Trustees or may authorize any officer,
employee or Trustee to effect such purchases, sales, loans or exchanges pursuant
to recommendations of such Investment Advisers, or any of them (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.
SECTION 4.2 ADMINISTRATIVE SERVICES. The Trustees may in their
discretion from time to time enter into an administration contract whereby the
other party shall agree to provide the Trustees or the Trust administrative
personnel and services to operate the Trust on a daily or other basis, on such
terms and conditions as the Trustees may in their discretion determine. Such
services may be provided by one or more persons or entities.
SECTION 4.3 DISTRIBUTOR. The Trustees may in their discretion from time
to time enter into one or more contracts, providing for the sale of Shares to
net the Trust or the applicable Series of the Trust not less than the net asset
value per Share (as described in Article VIII hereof) and pursuant to which the
Trust may either agree to sell the Shares to the other parties to the contracts,
or any of them, or appoint any such other party its sales agent for such Shares.
In either case, any such contract shall be on such terms and conditions as the
Trustees may in their discretion determine not inconsistent with the provisions
of this Article IV including, without limitation, the provision for the
repurchase or sale of Shares of the Trust by such other party as principal or as
agent of the Trust.
SECTION 4.4 TRANSFER AGENT. The Trustees may, in their discretion, from
time to time enter into a transfer agency and shareholder service contract
whereby the other party to such contract shall undertake to furnish transfer
agency and shareholder services to the Trust and its Shareholders. The contract
shall have such terms and conditions as the Trustees may, in their discretion,
determine not inconsistent with the Declaration. Such service may be provided by
one or more Persons.
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SECTION 4.5 CUSTODIAN. The Trustees may appoint or otherwise engage one
or more banks, broker-dealers or trust companies, to serve as custodian with
authority as its agent, but subject to applicable requirements of the 1940 Act
and to such restrictions, limitations and other requirements, if any, as may be
contained in the Bylaws of the Trust.
SECTION 4.6 PARTIES TO CONTRACT. Any contract of the character
described in Sections 4.1, 4.2, 4.3, 4.4 or 4.5 of this Article IV and any other
contract may be entered into with any Person, although one or more of the
Trustees or officers of the Trust may be an officer, director, trustee,
Shareholder, or member of such other party to the contract, and no such contract
shall be invalidated or rendered voidable by reason of the existence of any such
relationship; nor shall any Person holding such relationship be liable merely by
reason of such relationship for any loss or expense to the Trust under or by
reason of said contract or accountable for any profit realized directly or
indirectly therefrom, provided that the contract when entered into was not
inconsistent with the provisions of this Article IV. The same Person may be the
other party to any contracts entered into pursuant to Sections 4.1, 4.2, 4.3,
4.4 or 4.5 above or otherwise, and any individual may be financially interested
or otherwise affiliated with Persons who are parties to any or all of the
contracts mentioned in this Section 4.6.
ARTICLE V
LIMITATIONS OF LIABILITIES OF SHAREHOLDERS,
TRUSTEES AND OTHERS
SECTION 5.1 NO PERSONAL LIABILITY OF SHAREHOLDERS, TRUSTEES, ETC. No
Shareholder shall be subject to any personal liability whatsoever to any Person
in connection with Trust Property or the acts, obligations or affairs of the
Trust. The Trust shall indemnify out of the property of the Trust and hold each
Shareholder harmless from and against all claims and liabilities, to which such
Shareholder may become subject by reason of his being or having been a
Shareholder, and shall reimburse such Shareholder for all legal and other
expenses reasonably incurred by him in connection with any such claim or
liability; provided that, in the event the Trust shall consist of more than one
Series, Shareholders of a particular Series who are faced with claims or
liabilities solely by reason of their status as Shareholders of that Series
shall be limited to the assets of that Series for recovery of such loss and
related expenses. The rights accruing to a Shareholder under this Section 5.1
shall not exclude any other right to which such Shareholder may be lawfully
entitled, nor shall anything herein contained restrict the right of the Trust to
indemnify or reimburse a Shareholder in any appropriate situation even though
not specifically provided herein.
SECTION 5.2 NONLIABILITY OF TRUSTEES, ETC. No Trustee, officer,
employee or agent of the Trust shall be liable to the Trust or its Shareholders
for any action or failure to act (including, without limitation, the failure to
compel in any way any former or acting Trustee to redress any breach of trust)
except for his or her own bad faith, willful misfeasance, gross negligence or
reckless disregard of his or her duties, and all such Persons shall look solely
to the Trust Property, or to the Property of one or more specific Series of the
Trust if the claim arises from the conduct of such Trustee, officer, employee or
agent with respect to only such Series, for satisfaction of claims of any nature
arising in connection with the affairs of the Trust.
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SECTION 5.3 INDEMNIFICATION.
(a) The Trustees shall provide for indemnification by the
Trust, or by one or more Series thereof if the claim
arises from his or her conduct with respect to only
such Series, of any person who is, or has been, a
Trustee, officer, employee or agent of the Trust
against all liability and against all expenses
reasonably incurred or paid by him or her in
connection with any claim, action, suit or proceeding
in which he or she becomes involved as a party or
otherwise by virtue of his or her being or having
been a Trustee, officer, employee or agent and
against amounts paid or incurred by him or her in the
settlement thereof, in such manner as the Trustees
may provide from time to time in the Bylaws.
(b) The word "claim," "action," "suit," or "proceeding"
shall apply to all claims, actions, suits and
proceedings (civil, criminal, or other, including
appeals), actual or threatened; and the words
"liability" and "expenses" shall include, without
limitation, attorneys' fees, costs, judgments,
amounts paid in settlement, fines, penalties and
other liabilities.
SECTION 5.4 NO BOND REQUIRED OF TRUSTEES. No Trustee shall be obligated
to give any bond or other security for the performance of any of his or her
duties hereunder.
SECTION 5.5 NO DUTY OF INVESTIGATION; NOTICE IN TRUST INSTRUMENTS, ETC.
No purchaser, lender, transfer agent or other Person dealing with the Trustees
or any officer, employee or agent of the Trust or a Series thereof shall be
bound to make any inquiry concerning the validity of any transaction purporting
to be made by the Trustees or by said officer, employee or agent or be liable
for the application of money or property paid, loaned or delivered to or on the
order of the Trustees or of said officer, employee or agent. Every obligation,
contract, instrument, certificate, Share, other security of the Trust or a
Series thereof or undertaking, and every other act or thing whatsoever executed
in connection with the Trust shall be conclusively presumed to have been
executed or done by the executors thereof only in their capacity as officers,
employees or agents of the Trust or a Series thereof. Every written obligation,
contract, instrument, certificate, Share, other security of the Trust or
undertaking made or issued by the Trustees shall recite that the same is
executed or made by them not individually, but as Trustees under the
Declaration, and that the obligations of the Trust or a Series thereof under any
such instrument are not binding upon any of the Trustees or Shareholders,
individually, but bind only the Trust Property (or, in the event the Trust shall
consist of more than one Series, in the case of any such obligation which
relates to a specific Series, only the Series which is a party thereto), and may
contain any further recital which they or he or she may deem appropriate, but
the omission of such recital shall not affect the validity of such obligation,
contract instrument, certificate, Share, security or undertaking and shall not
operate to bind the Trustees, officers, employees or agents, individually. The
Trustees shall at all times maintain insurance for the protection of the Trust
Property, its Shareholders, Trustees, officers, employees and agents in such
amount as the Trustees shall deem adequate to cover
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possible tort liability, and such other insurance as the Trustees in their sole
judgment shall deem advisable.
SECTION 5.6 RELIANCE ON EXPERTS, ETC. Each Trustee and officer or
employee of the Trust shall, in the performance of his or her duties, be fully
and completely justified and protected with regard to any act or any failure to
act resulting from reliance in good faith upon the books of account or other
records of the Trust, upon an opinion of counsel, or upon reports made to the
Trust by any of its officers or employees or by any Investment Adviser,
Distributor, Transfer Agent, selected dealers, accountants, appraisers or other
experts or consultants selected with reasonable care by the Trustees, officers
or employees of the Trust, regardless of whether such counsel or expert may also
be a Trustee.
ARTICLE VI
SHARES OF BENEFICIAL INTEREST
SECTION 6.1 SHARES. The interests of beneficiaries hereunder shall be
divided into transferable Shares of $.01 par value. The number of such Shares
authorized hereunder is unlimited. The Trustees shall have the authority to
establish and designate one or more Series or classes of Shares. Each Share of
any Series shall represent an equal proportionate Share in the assets of that
Series with each other Share in that Series. The Trustees may divide or combine
the Shares of any Series into a greater or lesser number of Shares of that
Series without thereby changing the proportionate interest of the assets of that
Series. Subject to the provisions of Section 6.9 hereof, the Trustees may also
authorize the creation of additional series of Shares (the proceeds of which may
be invested in separate, independently managed portfolios) and additional
classes of Shares within any series. All Shares issued hereunder including,
without limitation, Shares issued in connection with a dividend in Shares or a
split in Shares, shall be fully paid and nonassessable.
SECTION 6.2 RIGHTS OF SHAREHOLDERS. The ownership of the Trust Property
of every description and the right to conduct any business herein before
described are vested exclusively in the Trustees, and the Shareholders shall
have no interest therein other than the beneficial interest conferred by their
Shares, and they shall have no right to call for any partition of division of
any property, profits, rights or interest of the Trust nor can they be called
upon to assume any losses of the Trust or suffer an assessment of any kind by
virtue of their ownership of Shares. The Shares shall be personal property
giving only the rights in the Declaration specifically set forth.
The Shares shall not entitle the Shareholder to preference, preemptive,
appraisal, conversion or exchange rights, except as the Trustees may determine
with respect to any series of Shares.
SECTION 6.3 TRUST ONLY. It is the intention of the Trustees to create
only the relationship of Trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention of the Trustees to create
a general partnership, limited partnership, joint stock association,
corporation, bailment or any form of legal relationship other than a trust.
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Nothing in the Declaration shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
SECTION 6.4 ISSUANCE OF SHARES. The Trustees, in their discretion may,
from time to time without vote of the Shareholders, issue Shares of any Series,
in addition to the then issued and outstanding Shares and Shares held in the
treasury, to such party or parties and for such amount and type of
consideration, including cash or property, at such time or times and on such
terms as the Trustees may deem best, and may in such manner acquire other assets
(including the acquisition of assets subject to, and in connection with the
assumption of liabilities) and businesses. In connection with any issuance of
Shares, the Trustees may issue fractional Shares. The Trustees may from time to
time divide or combine the Shares of any Series into a greater or lesser number
without thereby changing the proportionate beneficial interest of that Series.
Contributions to the Trust may be accepted for, and Shares shall be redeemed as,
whole Shares and/or fractions of a Share as described in the Registration
Statement.
SECTION 6.5 REGISTER OF SHARES. A register shall be kept in respect of
each Series at the principal office of the Trust or at an office of the Transfer
Agent which shall contain the names and addresses of the Shareholders and the
number of Shares of each Series held by them respectively and a record of all
transfers thereof. Such register may be in written form or any other form
capable of being converted into written form within a reasonable time for visual
inspection. Such register shall be conclusive as to who are the Shareholders and
who shall be entitled to receive dividends or distributions or otherwise to
exercise or enjoy the rights of Shareholders. No Shareholder shall be entitled
to receive payment of any dividend or distribution, nor to have notice given to
him as herein or in the Bylaws provided, until he has given his address to the
Transfer Agent or such other officer or agent of the Trustees as shall keep the
said register for entry thereon. It is not contemplated that certificates will
be issued for the Shares; however, the Trustees, in their discretion, may
authorize the issuance of Share certificates and promulgate appropriate rules
and regulations as to their use.
SECTION 6.6 TRANSFER OF SHARES. Shares shall be transferable on the
records of the Trust only by the record Shareholder or by his agent thereunto
duly authorized in writing, upon delivery to the Trustees or the Transfer Agent
of a duly executed instrument of transfer, together with such evidence of the
genuineness of each such execution and authorization and of other matters as may
reasonably be required. Upon such delivery the transfer shall be recorded on the
register of the Trust. Until such record is made, the "Shareholder of record"
shall be deemed to be the holder of such Shares for all purposes hereunder and
neither the Trustees nor any Transfer Agent or registrar nor any officer,
employee or agent of the Trust shall be affected by any notice of the proposed
transfer. Any person becoming entitled to any Shares in consequence of the
death, bankruptcy, or incompetence of any Shareholder, or otherwise by operation
of law, shall be recorded on the register of Shares as the holder of such Shares
upon production of the proper evidence thereof to the Trustees or the Transfer
Agent, but until such record is made, the Shareholder of record shall be deemed
to be the holder of such Shares for all purposes hereunder and neither the
Trustees nor any Transfer Agent or registrar, nor any officer or agent of the
Trust shall be affected by any notice of such death, bankruptcy or incompetence,
or other operation of law, except as may otherwise be provided by the laws of
The Commonwealth of Massachusetts.
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SECTION 6.7 NOTICES. Any and all notices to which any Shareholder may
be entitled and any and all communications shall be deemed duly served or given
if mailed, postage prepaid, addressed to any Shareholder of record at his last
known address as recorded on the register of the Trust. Annual reports and proxy
statements need not be sent to a Shareholder if: (i) an annual report and proxy
statement for two consecutive annual meetings, or (ii) all, and at least two,
checks (if sent by first class mail) in payment of dividends or Share and Shares
during a twelve month period have been mailed to such Shareholder's address and
have been returned undelivered. However, delivery of such annual reports and
proxy statements shall resume once a Shareholder's current address is
determined.
SECTION 6.8 VOTING POWERS. The Shareholders shall have power to vote
only (i) for the election of Trustees as provided in Section 2.2 hereof, (ii)
for the removal of Trustees as provided in Section 2.3 hereof, (iii) with
respect to termination of the Trust as provided in Section 9.2, (iv) with
respect to any amendment of the Declaration to the extent and as provided in
Section 9.3, (v) with respect to any merger, consolidation or sale of assets as
provided in Section 9.4, (vi) with respect to incorporation of the Trust to the
extent and as provided in Section 9.5, (vii) to the same extent as the
stockholders of a Massachusetts business corporation as to whether or not a
court action, proceeding or claim should or should not be brought or maintained
derivatively or as a class action on behalf of the Trust or the Shareholders
(provided that Shareholders of a Series are not entitled to vote in connection
with the bringing of a derivative or class action with respect to any matter
which only affects another Series or its Shareholders), and (viii) with respect
to such additional matters relating to the Trust as may be required by law, the
Declaration, the Bylaws or any registration of the Trust with the Commission (or
any successor agency) or any state, or as and when the Trustees may consider
necessary or desirable. Each whole Share shall be entitled to one vote as to any
matter on which it is entitled to vote and each fractional Share shall be
entitled to a proportionate fractional vote, except that Shares held in the
treasury of the Trust as of the record date, as determined in accordance with
the Bylaws, shall not be voted. On any matter submitted to a vote of
Shareholders, all Shares shall be voted by individual Series except (1) when
required by the 1940 Act, Shares shall be voted in the aggregate and not by
individual Series; and (2) when the Trustees have determined that the matter
affects only the interest of one or more Series, then only the Shareholders of
such Series shall be entitled to vote thereon. The Trustees may, in conjunction
with the establishment of any further Series or any classes of Shares, establish
conditions under which the several series or classes of Shares shall have
separate voting rights or no voting rights. There shall be no cumulative voting
in the election of Trustees. Until Shares are issued, the Trustees may exercise
all rights of Shareholders and may take any action required by law, the
Declaration or the Bylaws to be taken by Shareholders. The Bylaws may include
further provisions for Shareholders' votes and meetings and related matters.
SECTION 6.9 SERIES OR CLASSES OF SHARES. The following provisions are
applicable regarding the Series of Shares of the Trust established pursuant to
Section 6.1 hereof, and all provisions relating to the Trust shall apply equally
to each Series thereof except as the context requires:
a) The number of Shares that may be issued shall be unlimited.
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b) All consideration received by the Trust for the issue or sale
of Shares of a particular Series or class together with all
assets in which such consideration is invested or reinvested,
all income, earnings, profits, and proceeds thereof, including
any proceeds derived from the sale, exchange or liquidation of
such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may
be, shall irrevocably belong to that Series or class for all
purposes, subject only to the rights of creditors, and shall
be so recorded upon the books of account of the Trust. In the
event that there are any assets, income, earnings, profits,
and proceeds thereof, funds, or payments which are not readily
identifiable as belonging to any particular Series or class,
the Trustees, or their designees, shall allocate them among
any one or more of the Series or classes established and
designated from time to time in such manner and on such basis
as they, in their sole discretion, deem fair and equitable.
Each such allocation by the Trustees shall be conclusive and
binding upon the Shareholders of all Series or classes for all
purposes. No Shareholder of any Series shall have any claim on
or right to any assets allocated or belonging to any other
Series.
c) The assets belonging to each particular Series shall be
charged with the liabilities of the Trust in respect of that
Series and all expenses, costs, charges and reserves
attributable to that Series. All expenses and liabilities
incurred or arising in connection with a particular Series, or
in connection with the management thereof, shall be payable
solely out of the assets of that Series and creditors of a
particular Series shall be entitled to look solely to the
property of such Series for satisfaction of their claims. Any
general liabilities, expenses, costs, charges or reserves of
the Trust which are not readily identifiable as belonging to
any particular Series shall be allocated and charged by the
Trustees, or their designees, to and among any one or more of
the Series established and designated from time to time in
such manner and on such basis as the Trustees, or their
designees, in their sole discretion deem fair and equitable.
Each allocation of liabilities, expenses, costs, charges and
reserves by the Trustees shall be conclusive and binding upon
the Shareholders of all Series for all purposes. The Trustees
shall have full discretion 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.
d) The power of the Trustees to pay dividends and make
distributions shall be governed by Section 8.2 of this
Declaration with respect to any one or more Series or classes
of Shares which represents the interest of the assets of the
Trust immediately prior to the
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establishment of any additional Series or classes. With
respect to any other Series or class, dividends and
distributions on Shares of a particular Series or class 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 or
class, from such of the income and capital gains, accrued or
realized, from the assets belonging to that Series or class,
as the Trustees may determine, after providing for actual and
accrued liabilities belonging to that Series or class. All
dividends and distributions on Shares of a particular Series
or class shall be distributed pro rata to the Shareholders of
that Series or class in proportion to the number of Shares of
that Series or Class held by such Shareholders at the date and
time of record established for the payment of such dividends
or distributions.
e) The Trustees shall have the power to determine the
designations, preferences, privileges, limitations and rights,
including voting and dividend rights, of each class and Series
of Shares.
f) The establishment and designation of any Series or class of
Shares pursuant to Section 6.1 hereof shall be effective by
resolution adopted by a majority of the then Trustees setting
forth such establishment and designation and the relative
rights, preferences, voting powers, restrictions, limitations
as to dividends, qualifications, and terms and conditions of
Redemption of such Series or class, or as otherwise provided
in such instrument. At any time that there are no Shares
outstanding of any particular Series or class previously
established and designated, the Trustees may, by a resolution
adopted by a majority of their number, abolish that Series or
class and the establishment and designation thereof.
g) Each Share shall represent an interest in the net assets of
such Series. Each Shareholder of Shares of a Series shall be
entitled to receive his pro rata Share of distributions of
income and capital gains made with respect to such Series. In
the event of the liquidation of a particular Series, the
Shareholders of that Series which has been established and
designated and which is being liquidated shall be entitled to
receive, when and as declared by the Trustees, the excess of
the assets belonging to that Series over the liabilities
belonging to that Series. The Shareholders of any Series shall
not be entitled hereby to any distribution upon liquidation of
any other Series. The assets so distributable to the
Shareholders of any Series shall be distributed among such
Shareholders in proportion to the Shares of that Series held
by them and recorded on the books of the Trust. The
liquidation of any particular Series in which there are Shares
then outstanding
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may be authorized by an instrument in writing, without a
meeting, signed by a majority of the Trustees then in office,
subject to the approval of a Majority Shareholder Vote.
h) Subject to compliance with the requirements of the 1940 Act,
the Trustees shall have the authority to provide that the
holders of Shares of any Series or class shall have the right
to convert or exchange said Shares into Shares of one or more
Series of Shares in accordance with such requirements and
procedures as may be established by the Trustees.
ARTICLE VII
REDEMPTIONS
SECTION 7.1 REDEMPTIONS. Each Shareholder of a particular Series shall
have the right at such times as may be permitted by the Trust to require the
Trust to redeem all or any part of his Shares of that Series, upon and subject
to the terms and conditions provided in this Article VII, in accordance with and
pursuant to procedures or methods prescribed or approved by the Trustees and, in
the case of any Series now or hereafter authorized, if so determined by the
Trustees, shall be redeemable only in aggregations of such number of Shares and
at such times as may be determined by, or determined pursuant to procedures or
methods prescribed by or approved by, the Trustees from time to time with
respect to such Series. The number of Shares comprising an aggregation for
purposes of redemption or repurchase so determined from time to time with
respect to any Series shall be referred to herein as a "Creation Unit" and
collectively, as "Creation Units". The Trustees shall have the unrestricted
power to determine from time to time the number of Shares constituting a
Creation Unit by resolutions adopted at any regular or special meeting of the
Trustees. Each Shareholder of a Creation Unit aggregation of a Series, upon
request to the Trust accompanied by surrender of the appropriate stock
certificate or certificates in proper form for transfer if certificates have
been issued to such Shareholder, or in accordance with such other procedures as
may from time to time be in effect if certificates have not been issued, shall
be entitled to require the Trust to redeem all or any number of such
Shareholder's Shares standing in the name of such Shareholder on the books of
the Trust, but in the case of Shares of any Series as to which the Trustees have
determined that such Shares shall be redeemable only in Creation Unit
aggregations, only in such Creation Unit aggregations of Shares of such Series
as the Trustees may determine from time to time in accordance with this Section
7.1. The Trust shall, upon application of any Shareholder or pursuant to
authorization from any Shareholder, redeem or repurchase from such Shareholder
outstanding Shares for an amount per Share determined by the Trustees in
accordance with any applicable laws and regulations; provided that (i) such
amount per Share shall not exceed the cash equivalent of the proportionate Share
of each Share or of any class or Series of Shares of the assets of the Trust at
the time of the redemption or repurchase and (ii) if so authorized by the
Trustees, the Trust may, at any time and from time to time, charge fees for
effecting such redemption or repurchase, at such rates as the Trustees may
establish, as and to the extent permitted under the 1940 Act, and may, at any
time and from time to time, pursuant to such Act and such rules and regulations,
suspend such right of redemption. The procedures for effecting and suspending
redemption shall be as set forth in the Registration Statement from time to
time. Payment may be in cash,
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securities or a combination thereof, as determined by or pursuant to the
direction of the Trustees from time to time.
SECTION 7.2 REDEMPTION AT THE OPTION OF THE TRUST. Each Share of the
Trust or any Series of the Trust 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 Section 7.1: (i) at any time,
if the Trustees determine in their sole discretion that failure to so redeem may
have materially adverse consequences to the Shareholders of the Trust or of any
Series, 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 Registration Statement. 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.
SECTION 7.3 EFFECT OF SUSPENSION OF DETERMINATION OF NET ASSET VALUE.
If, pursuant to Section 7.4 hereof, the Trustees shall declare a suspension of
the determination of net asset value with respect to Shares of the Trust or of
any Series thereof, the rights of Shareholders (including those who shall have
applied for redemption pursuant to Section 7.1 hereof but who shall not yet have
received payment) to have Shares redeemed and paid for by the Trust or a Series
thereof shall be suspended until the termination of such suspension is declared.
Any record Shareholder who shall have his redemption right so suspended may,
during the period of such suspension, by appropriate written notice of
revocation at the office or agency where application was made, revoke any
application for redemption not honored and withdraw any certificates on deposit.
The redemption price of Shares for which redemption applications have not been
revoked shall be the net asset value of such Shares next determined as set forth
in Section 8.1 after the termination of such suspension.
SECTION 7.4 SUSPENSION OF RIGHT OF REDEMPTION. The Trust may declare a
suspension of the right of redemption or postpone the date of payment or
redemption for the whole or any part of any period (i) during which the New York
Stock Exchange is closed other than customary weekend and holiday closings, (ii)
during which trading on the New York Stock Exchange is restricted, (iii) during
which an emergency exists as a result of which disposal by the Trust or a Series
thereof of securities owned by it is not reasonably practicable or it is not
reasonably practicable for the Trust or a Series thereof fairly to determine the
value of its net assets, or (iv) during any other period when the Commission
may, for the protection of Shareholders of the Trust, by order permit suspension
of the rights of redemption or postponement of the date of payment or
redemption; provided that applicable rules and regulations of the Commission
shall govern as to whether the conditions prescribed in (ii), (iii) or (iv)
exist. Such suspension shall take effect at such time as the Trust shall specify
but not later than the close of business on the business day next following the
declaration of suspension, and thereafter there shall be no right of redemption
or payment on redemption until the Trust shall declare the suspension at an end,
except that the suspension shall terminate in any event on the first day on
which said stock exchange shall have reopened or the period specified in (ii) or
(iii) shall have expired (as to which, in the absence of an official ruling by
the Commission, the determination of the Trust shall be conclusive). In the case
of a suspension of the right of
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redemption, a Shareholder may either withdraw his request for redemption or
receive payment based on the net asset value existing after the termination of
the suspension.
ARTICLE VIII
DETERMINATION OF NET ASSET VALUE,
NET INCOME AND DISTRIBUTIONS
SECTION 8.1 NET ASSET VALUE. The net asset value of each outstanding
Share of each Series of the Trust shall be determined on such days and at such
time or times as the Trustees may determine. The method of determination of net
asset value shall be determined by the Trustees and shall be as set forth in the
Registration Statement. The power and duty to make the daily calculations may be
delegated by the Trustees to any Investment Adviser, Manager, the Custodian, the
Transfer Agent or such other person as the Trustees by resolution may determine.
The Trustees may suspend the daily determination of net asset value to the
extent permitted by the 1940 Act.
SECTION 8.2 DISTRIBUTIONS TO SHAREHOLDERS. The Trustees shall from time
to time distribute ratably among the Shareholders of the Trust or of any Series
such proportion of the net income, earnings, profits, gains, surplus (including
paid-in surplus), capital, or assets of the Trust or of such Series held by the
Trustees as they may deem proper. Such distribution may be made in cash or
property including, without limitation, any type of obligations of the Trust or
of such Series or any assets thereof, and the Trustees may distribute ratably
among the Shareholders of the Trust or of that Series additional Shares issuable
hereunder in such manner, at such times, and on such terms as the Trustees may
deem proper. Such distributions may be among the Shareholders of record
(determined in accordance with the Registration Statement) of the Trust or of
such Series at the time of declaring a distribution, or among the Shareholders
of record of the Trust or of such Series at such later date as the Trustees
shall determine. The Trustees may always retain from the net income, earnings,
profits or gains of the Trust or of such Series such amount as they may deem
necessary to pay the debts or expenses of the Trust or of such Series or to meet
obligations of the Trust or of such Series, or as they may deem desirable to use
in the conduct of its affairs or to retain for future requirements or extensions
of the business. The Trustees may adopt and offer to Shareholders of the Trust
or of any Series such dividend reinvestment plans, cash dividend payout plans or
related plans as the Trustees deem appropriate.
Inasmuch as the computation of net income and gains for Federal income
tax purposes may vary from the computation thereof on the books, the above
provisions shall be interpreted to give the Trustees the power in their
discretion to distribute for any fiscal year as ordinary dividends and as
capital gains distributions, respectively, additional amounts sufficient to
enable the Trust to avoid or reduce liability for taxes.
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SECTION 8.3 DETERMINATION OF NET INCOME. The Trustees shall have the
power to determine the net income of any Series of the Trust and from time to
time to distribute such net income ratably among the Shareholders as dividends
in cash or additional Shares of such Series issuable hereunder. The
determination of net income and the resultant declaration of dividends shall be
as set forth in the Registration Statement. The Trustees shall have full
discretion to determine whether any cash or property received by any Series of
the Trust shall be treated as income or as principal and whether any item of
expense shall be charged to the income or the principal account, and their
determination made in good faith shall be conclusive upon the Shareholders. In
the case of stock dividends received, the Trustees shall have full discretion to
determine, in the light of the particular circumstances, how much, if any, of
the value thereof shall be treated as income, the balance, if any, to be treated
as principal.
SECTION 8.4 POWER TO MODIFY FOREGOING PROCEDURES. Notwithstanding any
of the foregoing provisions of this Article VIII, the Trustees may prescribe, in
their absolute discretion, such other bases and times for determining the per
Share net asset value of the Shares or net income, or the declaration and
payment of dividends and distributions, as they may deem necessary or desirable
to enable the Trust to comply with any provision of the 1940 Act, including any
rule or regulation adopted pursuant to Section 22 of the 1940 Act by the
Commission or any securities association registered under the Securities
Exchange Act of 1934, or any order of exemption issued by said Commission, all
as in effect now or hereafter amended or modified. Without limiting the
generality of the foregoing, the Trustees may establish classes or additional
Series of Shares in accordance with Section 6.9.
ARTICLE IX
DURATION; TERMINATION OF TRUST; AMENDMENT; MERGERS,ETC.
SECTION 9.1 DURATION. The Trust shall continue without limitation of
time but subject to the provisions of this Article IX.
SECTION 9.2 TERMINATION OF TRUST OR A SERIES. The Trust or any Series
may be terminated either by (i) resolution of the Board of Trustees with notice
in writing to the Shareholders, (ii) the affirmative vote of Shareholders
holding not less than two-thirds of the Shares at any meeting of Shareholders of
the Trust or the appropriate Series thereof, or (iii) by a Majority Shareholder
Vote if such termination is recommended by the Trustees. The foregoing
provisions may not be amended except by the approval by Shareholders holding not
less than two-thirds of the Shares. Upon the termination of the Trust or the
Series:
(a) The Trust or the Series shall carry on no business except for
the purpose of winding up its affairs.
(b) The Trustees shall proceed to wind up the affairs of the Trust
or the Series and all of the powers of the Trustees under this
Declaration shall continue until the affairs of the Trust
shall have been wound up, including the power to fulfill or
discharge the contracts of the Trust or the Series, collect
its assets, sell, convey, assign, exchange, transfer or
otherwise dispose of all or any part of the remaining Trust
Property or
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Trust Property allocated or belonging to such Series to one or
more persons at public or private sale for consideration which
may consist in whole or in part of cash, securities or other
property of any kind, discharge or pay its liabilities, and to
do all other acts appropriate to liquidate its business.
(c) After paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities
and refunding agreements, as they deem necessary for their
protection, the Trustees may distribute the remaining Trust
Property or Trust Property allocated or belonging to such
Series, in cash or in kind or partly each, among the
Shareholders of the Trust according to their respective
rights.
SECTION 9.3 AMENDMENT PROCEDURE.
(a) This Declaration may be amended by a Majority Shareholder Vote
or such greater vote as may be prescribed in this Declaration,
at a meeting of Shareholders, or by written consent without a
meeting. The provisions of the preceding sentence may not be
amended except by vote of Shareholders holding not less than
two-thirds of the Shares. The Trustees may also amend this
Declaration without the vote or consent of Shareholders (i) to
change the name of the Trust or any Series or classes of
Shares, (ii) to supply any omission, or cure, correct or
supplement any ambiguous, defective or inconsistent provision
hereof, (iii) if they deem it necessary to conform this
declaration to the requirements of applicable federal or state
laws or regulations or the requirements of the Code, or to
eliminate or reduce any federal, state or local taxes which
are or may be payable by the Trust or the Shareholders, but
the Trustees shall not be liable for failing to do so, or (iv)
for any other purpose which does not adversely affect the
rights of any Shareholder with respect to which the amendment
is or purports to be applicable.
(b) No amendment may be made under this Section 9.3 which would
change any rights with respect to any Shares of the Trust or
of any Series of the Trust by reducing the amount payable
thereon upon liquidation of the Trust or of such Series of the
Trust or by diminishing or eliminating any voting rights
pertaining thereto, except with the vote or consent of
Shareholders holding not less than two-thirds of any Shares of
the Trust or of such Series, or by such other vote as may be
established by the Trustees with respect to any Series or
class. Nothing contained in this Declaration shall permit the
amendment of this Declaration to impair the exemption from
personal liability of the Shareholders, Trustees, officers,
employees and agents of the Trust or to permit assessment upon
Shareholders.
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(c) Not withstanding any other provision hereof until such time as
Shares are first sold, this Declaration may be terminated or
amended in any respect by the affirmative vote of a majority
of the Trustees at any meeting of Trustees or by an instrument
executed by a majority of the Trustees.
SECTION 9.4 MERGER, CONSOLIDATION AND SALE OF ASSETS. The Trust, or any
Series thereof, may merge or consolidate with any other corporation,
association, trust or other organization or may sell, lease or exchange all or
substantially all of the Trust Property or Trust Property allocated or belonging
to such Series, including good will, upon such terms and conditions and for such
consideration when and as authorized by the Trustees.
SECTION 9.5 INCORPORATION. Upon a Majority Shareholder Vote, the
Trustees may cause to be organized or assist in organizing a corporation or
corporations under the law of any jurisdiction or any other trust, partnership,
association or other organization to take over the Trust Property or the Trust
Property allocated or belonging to such Series or to carry on any business in
which the Trust shall directly or indirectly have any Share, and to sell, convey
and transfer the Trust Property or the Trust Property allocated or belonging to
such Series to any such corporation, trust, partnership, association or
organization in exchange for the equity Shares thereof or otherwise, and to lend
money to, subscribe for the equity Shares of, and enter into any contract with
any such corporation, trust, partnership, association or other organization or
any corporation, trust, partnership, association or other organization in which
the Trust or such Series holds or is about to acquire equity interest. The
Trustees may also cause a merger or consolidation between the Trust or any
successor thereto and any such corporation, trust, partnership, association or
other organization if and to the extent permitted by law, as provided under the
law then in effect. Nothing contained herein 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 selling, conveying or transferring a portion of the Trust
Property to one or more of such organizations or entities.
ARTICLE X
REPORTS TO SHAREHOLDERS
The Trustees shall at least semiannually submit or cause the officers
of the Trust to submit to the Shareholders a written financial report of each
Series of the Trust, including financial statements which shall at least
annually be certified by independent public accountants.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1 FILING. This Declaration and any amendment hereto shall be
filed in the office of the Department of State of The Commonwealth of
Massachusetts and in such other places as may be required under the laws of The
Commonwealth of Massachusetts. A restated Declaration, integrating into a single
instrument all of the provisions of the Declaration which are then in effect and
operative, may be executed from time to time by a majority of the Trustees and
shall, upon filing with the Secretary of The Commonwealth of Massachusetts, be
conclusive evidence of all amendments contained therein and may thereafter be
referred to in lieu of the original Declaration and the various amendments
thereto.
SECTION 11.2 GOVERNING LAW. This Declaration is executed by the
Trustees and delivered in The Commonwealth of Massachusetts and with reference
to the laws thereof and the rights of all parties and the validity and
construction of every provision hereof shall be subject to and construed
according to the laws of said State.
SECTION 11.3 COUNTERPARTS. The Declaration may be simultaneously
executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts, together, shall constitute one and the same
instrument, which shall be sufficiently evidenced by any such original
counterpart.
SECTION 11.4 RELIANCE BY THIRD PARTIES. Any certificate executed by an
individual who, according to the records of the Trust, appears to be a Trustee
hereunder, or Secretary or Assistant Secretary of the Trust, 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 at 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, (e) the form of any Bylaws
adopted by or the identity of any officers elected by the Trustees, or (f) the
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 and their successors.
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SECTION 11.5 PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a) The provisions of the Declaration are severable, and if the
Trustees shall determine, with the advice of counsel, that any
of such provisions is in conflict with the 1940 Act, the
regulated investment company provisions of the Code or with
other applicable laws and regulations, the conflicting
provisions shall be deemed superseded by such law or
regulation to the extent necessary to eliminate such conflict;
provided, however, that such determination shall not affect
any of the remaining provisions of the Declaration or render
invalid or improper any action taken or omitted prior to such
determination.
(b) If any provision of the Declaration shall be held invalid or
unenforceable in any jurisdiction, such invalidity or
unenforceability shall pertain only to such provision in such
jurisdiction and shall not in any manner affect such provision
in any other jurisdiction or any other provision of the
Declaration in any jurisdiction.
SECTION 11.6 PRINCIPAL PLACE OF BUSINESS; RESIDENT AGENT. The principal
place of business of the Trust shall be 225 Franklin Street, Boston,
Massachusetts 02110, or such other location as the Trustees may designate from
time to time. To the extent required, the Trustees shall have the power to
appoint a resident agent for service of process on the Trust and from time to
time to replace the resident agent so appointed. State Street Bank and Trust
Company, 225 Franklin Street, Boston, Massachusetts 02110, is hereby designated
as the initial resident agent for the Trust in Massachusetts. The Trustees may,
without the approval of the Shareholders, change the resident agent of the Trust
or the principal place of business of the Trust.
IN WITNESS WHEREOF, the undersigned has executed this Declaration of Trust this
6th day of September, 2000.
/s/ Edmund J. Burke, Trustee
Edmund J. Burke, as trustee and not individually
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STATE OF COLORADO )
)ss.:
COUNTY OF DENVER )
On this 6th day of September 2000, Edmund J. Burke, known to me and
known to be the individual described in and who executed the foregoing
instrument, personally appeared before me and acknowledged the foregoing
instrument to be his free act and deed.
Notary Public
/s/ Patricia J. Lobeth
My commission expires: 10/27/2000
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