AMENDED AND RESTATED TRUST INSTRUMENT
Colchester Street Trust
AMENDED AND RESTATED TRUST INSTRUMENT, made September 14,
2000 by each of the Trustees whose signature is affixed
hereto (the "Trustees").
WHEREAS, the Trustees desire to amend and restate this Trust
Instrument for the sole purpose of supplementing the Trust
Instrument to incorporate amendments duly adopted; and
WHEREAS, this Trust was initially made on June 20, 1991 by
Edward C. Johnson 3d, J. Gary Burkhead and John E. Ferris in
order to establish a trust for the investment and
reinvestment of funds contributed thereto;
NOW, THEREFORE, the Trustees declare that all money and
property contributed to the trust hereunder shall be held
and managed in trust under this Amended and Restated Trust
Instrument as herein set forth below.
_________________________________________________
ARTICLE I
NAME AND DEFINITIONS
NAME
Section 1.01. The name of the trust created hereby is the
"Colchester Street Trust."
DEFINITIONS.
Section 1.02. Wherever used herein, unless otherwise
required by the context or specifically provided:
(a) "Bylaws" means the Bylaws referred to in Article IV,
Section 4.01(e) hereof, as from time to time amended;
(b) The term "Commission" has the meaning given it in the
1940 Act. The terms "Affiliated Person," "Assignment,"
"Interested Person" and "Principal Underwriter" shall have
the meanings given them in the 1940 Act, as modified by or
interpreted by any applicable order or orders of the
Commission or any rules or regulations adopted or
interpretive releases of the Commission thereunder.
"Majority Shareholder Vote" shall have the same meaning as
the term "vote of a majority of the outstanding voting
securities" is given in the 1940 Act, as modified by or
interpreted by any applicable order or orders of the
Commission or any rules or regulations adopted or
interpretive releases of the Commission thereunder;
(c) The "Delaware Act" refers to Chapter 38 of Title 12 of
the Delaware Code entitled "Treatment of Delaware Business
Trusts," as it may be amended from time to time;
(d) "Net Asset Value" means the net asset value of each
Series of the Trust determined in the manner provided in
Article IX, Section 9.03 hereof;
(e) "Outstanding Shares" means those Shares shown from time
to time in the books of the Trust or its Transfer Agent as
then issued and outstanding, but shall not include Shares
which have been redeemed or repurchased by the Trust and
which are at the time held in the treasury of the Trust;
(f) "Series" means a series of Shares of the Trust
established in accordance with the provisions of Article II,
Section 2.06 hereof;
(g) "Shareholder" means a record owner of Outstanding Shares
of the Trust;
(h) "Shares" means the equal proportionate transferable
units of beneficial interest into which the beneficial
interest of each Series of the Trust or class thereof shall
be divided and may include fractions of Shares as well as
whole Shares;
(i) The "Trust" refers to Colchester Street Trust and
reference to the Trust, when applicable to one or more
Series of the Trust, shall refer to any such Series;
(j) The "Trustees" means the person or persons who has or
have signed this Trust Instrument, so long as he or they
shall continue in office in accordance with the terms
hereof, and all other persons who may from time to time be
duly qualified and serving as Trustees in accordance with
the provisions of Article III hereof and reference herein to
a Trustee or to the Trustees shall refer to the individual
Trustees in their capacity as Trustees hereunder;
(k) "Trust Property" means any and all property, real or
personal, tangible or intangible, which is owned or held by
or for the account of one or more of the Trust or any
Series, or the Trustees on behalf of the Trust or any
Series; and
(l) The "1940 Act" refers to the Investment Company Act of
1940, as amended from time to time.
ARTICLE II
BENEFICIAL INTEREST
SHARES OF BENEFICIAL INTEREST
Section 2.01. The beneficial interest in the Trust shall be
divided into such transferable Shares of one or more
separate and distinct Series or classes of a Series as the
Trustees shall from time to time create and establish. The
number of Shares of each Series, and class thereof,
authorized hereunder is unlimited. Each Share shall have no
par value. All Shares issued hereunder, including without
limitation, Shares issued in connection with a dividend in
Shares or a split or reverse split of Shares, shall be fully
paid and nonassessable.
ISSUANCE OF SHARES
Section 2.02. The Trustees in their discretion may, from
time to time, without vote of the Shareholders, issue
Shares, in addition to the then issued and outstanding
Shares and Shares held in the treasury, to such party or
parties and for such amount and type of consideration,
subject to applicable law, including cash or securities, at
such time or times and on such terms as the Trustees may
deem appropriate, 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 and Shares held in the
treasury. The Trustees may from time to time divide or
combine the Shares into a greater or lesser number without
thereby changing the proportionate beneficial interests in
the Trust. Contributions to the Trust may be accepted for,
and Shares shall be redeemed as, whole Shares and/or
1/1,000th of a Share or integral multiples thereof.
REGISTER OF SHARES AND SHARE CERTIFICATES
Section 2.03. A register shall be kept at the principal
office of the Trust or an office of the Trust's transfer
agent which shall contain the names and addresses of the
Shareholders of each Series, the number of Shares of that
Series (or any class or classes thereof) held by them
respectively and a record of all transfers thereof. As to
Shares for which no certificate has been issued, such
register shall be conclusive as to who are the holders of
the Shares and who shall be entitled to receive dividends or
other distributions or otherwise to exercise or enjoy the
rights of Shareholders. No Shareholder shall be entitled to
receive payment of any dividend or other 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. The
Trustees, in their discretion, may authorize the issuance of
share certificates and promulgate appropriate rules and
regulations as to their use. Such certificates may be
issuable for any purpose limited in the Trustees discretion.
In the event that one or more certificates are issued,
whether in the name of a shareholder or a nominee, such
certificate or certificates shall constitute evidence of
ownership of Shares for all purposes, including transfer,
assignment or sale of such Shares, subject to such
limitations as the Trustees may, in their discretion,
prescribe.
TRANSFER OF SHARES
Section 2.04. Except as otherwise provided by the Trustees,
Shares shall be transferable on the records of the Trust
only by the record holder thereof or by his agent thereunto
duly authorized in writing, upon delivery to the Trustees or
the Trust's transfer agent of a duly executed instrument of
transfer, together with a Share certificate, if one is
outstanding, and such evidence of the genuineness of each
such execution and authorization and of such other matters
as may be required by the Trustees. 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 the Trust, 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.
TREASURY SHARES
Section 2.05. Shares held in the treasury shall, until
reissued pursuant to Section 2.02 hereof, not confer any
voting rights on the Trustees, nor shall such Shares be
entitled to any dividends or other distributions declared
with respect to the Shares.
ESTABLISHMENT OF SERIES
Section 2.06. The Trust created hereby shall consist of one
or more Series and separate and distinct records shall be
maintained by the Trust for each Series and the assets
associated with any such Series shall be held and accounted
for separately from the assets of the Trust or any other
Series. The Trustees shall have full power and authority, in
their sole discretion, and without obtaining any prior
authorization or vote of the Shareholders of any Series of
the Trust, to establish and designate and to change in any
manner any such Series of Shares or any classes of initial
or additional Series and to fix such preferences, voting
powers, rights and privileges of such Series or classes
thereof as the Trustees may from time to time determine, to
divide or combine the Shares or any Series or classes
thereof into a greater or lesser number, to classify or
reclassify any issued Shares or any Series or classes
thereof into one or more Series or classes of Shares, and to
take such other action with respect to the Shares as the
Trustees may deem desirable. The establishment and
designation of any Series shall be effective upon the
adoption of a resolution by a majority of the Trustees
setting forth such establishment and designation and the
relative rights and preferences of the Shares of such
Series, whether directly in such resolution or by reference
to, or approval of, another document that sets forth such
relative rights and preferences of the Shares of such Series
including, without limitation, any registration statement of
the Trust, or as otherwise provided in such resolution. A
Series may issue any number of Shares and need not issue
shares. At any time that there are no Shares outstanding of
any particular Series previously established and designated,
the Trustees may by a majority vote abolish that Series and
the establishment and designation thereof.
All references to Shares in this Trust Instrument shall be
deemed to be Shares of any or all Series, or classes
thereof, as the context may require. All provisions herein
relating to the Trust shall apply equally to each Series of
the Trust, and each class thereof, except as the context
otherwise requires.
Each Share of a Series of the Trust shall represent an equal
beneficial interest in the net assets of such Series. Each
holder of Shares of a Series shall be entitled to receive
his pro rata share of distributions of income and capital
gains, if any, made with respect to such Series. Upon
redemption of his Shares, such Shareholder shall be paid
solely out of the funds and property of such Series of the
Trust.
INVESTMENT IN THE TRUST
Section 2.07. The Trustees shall accept investments in any
Series of the Trust from such persons and on such terms as
they may from time to time authorize. At the Trustees'
discretion, such investments, subject to applicable law, may
be in the form of cash or securities in which the affected
Series is authorized to invest, valued as provided in
Article IX, Section 9.03 hereof. Investments in a Series
shall be credited to each Shareholder's account in the form
of full Shares at the Net Asset Value per Share next
determined after the investment is received; provided,
however, that the Trustees may, in their sole discretion,
(a) fix the Net Asset Value per Share of the initial capital
contribution, (b) impose a sales charge or other fee upon
investments in the Trust in such manner and at such time
determined by the Trustees or (c) issue fractional Shares.
ASSETS AND LIABILITIES OF SERIES
Section 2.08. All consideration received by the Trust for
the issue or sale of Shares of a particular Series, together
with all assets in which such consideration is invested or
reinvested, all income, earnings, profits, and proceeds
thereof, including any proceeds derived from the sale,
exchange or liquidation of such assets, and any funds or
payments derived from any reinvestment of such proceeds in
whatever form the same may be, shall be held and accounted
for separately from the other assets of the Trust and of
every other Series and may be referred to herein as "assets
belonging to" that Series. The assets belonging to a
particular Series shall belong to that Series for all
purposes, and to no other Series, subject only to the rights
of creditors of that Series. In addition, any assets,
income, earnings, profits or funds, or payments and proceeds
with respect thereto, which are not readily identifiable as
belonging to any particular Series shall be allocated by the
Trustees between and among one or more of the Series in such
manner as the Trustees, in their sole discretion, deem fair
and equitable. Each such allocation shall be conclusive and
binding upon the Shareholders of all Series for all
purposes, and such assets, income, earnings, profits or
funds, or payments and proceeds with respect thereto shall
be assets belonging to that Series. The assets belonging to
a particular Series shall be so recorded upon the books of
the Trust, and shall be held by the Trustees in trust for
the benefit of the holders of Shares of that Series. The
assets belonging to each particular Series shall be charged
with the liabilities of that Series and all expenses, costs,
charges and reserves attributable to that Series. 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 between or among any one or more of the Series in
such manner as the Trustees in their sole discretion deem
fair and equitable. Each such allocation shall be conclusive
and binding upon the Shareholders of all Series for all
purposes. Without limitation of the foregoing provisions of
this Section 2.08, but subject to the right of the Trustees
in their discretion to allocate general liabilities,
expenses, costs, charges or reserves as herein provided, the
debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to a
particular Series shall be enforceable against the assets of
such Series only, and not against the assets of the Trust
generally. Notice of this limitation on inter-Series
liabilities may, in the Trustee's sole discretion, be set
forth in the certificate of trust of the Trust (whether
originally or by amendment) as filed or to be filed in the
Office of the Secretary of State of the State of Delaware
pursuant to the Delaware Act, and upon the giving of such
notice in the certificate of trust, the statutory provisions
of Section 3804 of the Delaware Act relating to limitations
on inter-Series liabilities (and the statutory effect under
Section 3804 of setting forth such notice in the certificate
of trust) shall become applicable to the Trust and each
Series. Any person extending credit to, contracting with or
having any claim against any Series may look only to the
assets of that Series to satisfy or enforce any debt,
liability, obligation or expense incurred, contracted for or
otherwise existing with respect to that Series. No
Shareholder or former Shareholder of any Series shall have a
claim on or any right to any assets allocated or belonging
to any other Series.
NO PREEMPTIVE RIGHTS
Section 2.09. Shareholders shall have no preemptive or other
right to subscribe to any additional Shares or other
securities issued by the Trust or the Trustees, whether of
the same or other Series.
PERSONAL LIABILITY OF SHAREHOLDERS
Section 2.10. Each Shareholder of the Trust and of each
Series shall not be personally liable for the debts,
liabilities, obligations and expenses incurred by,
contracted for, or otherwise existing with respect to, the
Trust or by or on behalf of any Series. The Trustees shall
have no power to bind any Shareholder personally or 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 by way of subscription
for any Shares or otherwise. Every note, bond, contract or
other undertaking issued by or on behalf of the Trust or the
Trustees relating to the Trust or to a Series shall include
a recitation limiting the obligation represented thereby to
the Trust or to one or more Series and its or their assets
(but the omission of such a recitation shall not operate to
bind any Shareholder or Trustee of the Trust).
ASSENT TO TRUST INSTRUMENT
Section 2.11. Every Shareholder, by virtue of having
purchased a Share shall become a Shareholder and shall be
held to have expressly assented and agreed to be bound by
the terms hereof.
ARTICLE III
THE TRUSTEES
MANAGEMENT OF THE TRUST
Section 3.01. 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 this Trust Instrument. 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 State of Delaware, in
any and all states of the United States of America, in the
District of Columbia, in any and all commonwealths,
territories, dependencies, colonies, or possessions of the
United States of America, and in any foreign jurisdiction
and to do all such other things and execute all such
instruments 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 this Trust Instrument, the
presumption shall be in favor of a grant of power to the
Trustees.
The enumeration of any specific power in this Trust
Instrument shall not be construed as limiting the aforesaid
power. The powers of the Trustees may be exercised without
order of or resort to any court.
Except for the Trustees named herein or appointed to fill
vacancies pursuant to Section 3.04 of this Article III, the
Trustees shall be elected by the Shareholders owning of
record a plurality of the Shares voting at a meeting of
Shareholders. Such a meeting shall be held on a date fixed
by the Trustees. In the event that less than a majority of
the Trustees holding office have been elected by
Shareholders, the Trustees then in office will call a
Shareholders' meeting for the election of Trustees.
INITIAL TRUSTEES
Section 3.02. The initial Trustees shall be the persons
named herein. On a date fixed by the Trustees, the
Shareholders shall elect at least three but not more than
twelve Trustees, as specified by the Trustees pursuant to
Section 3.06 of this Article III.
TERM OF OFFICE OF TRUSTEES
Section 3.03. The Trustees shall hold office during the
lifetime of this Trust, and until its termination as herein
provided; except (a) that any Trustee may resign his trust
by written instrument signed by him and delivered to the
other Trustees, which shall take effect upon such delivery
or upon such later date as is specified therein; (b) that
any Trustee may be removed at any time by written
instrument, signed by at least two-thirds of the number of
Trustees prior to such removal, specifying the date when
such removal shall become effective; (c) that any Trustee
who requests in writing to be retired or who has died,
become physically or mentally incapacitated by reason of
disease or otherwise, or is otherwise unable to serve, may
be retired by written instrument signed by a majority of the
other Trustees, specifying the date of his retirement; and
(d) that a Trustee may be removed at any meeting of the
Shareholders of the Trust by a vote of Shareholders owning
at least two-thirds of the outstanding Shares.
VACANCIES AND APPOINTMENT OF TRUSTEES
Section 3.04. In case of the declination to serve, death,
resignation, retirement, removal, physical or mental
incapacity by reason of disease or otherwise, or a Trustee
is otherwise unable to serve, or an increase in the number
of Trustees, a vacancy shall occur. Whenever a vacancy in
the Board of Trustees shall occur, until such vacancy is
filled, the other Trustees shall have all the powers
hereunder and the certificate of the other Trustees of such
vacancy shall be conclusive. In the case of an existing
vacancy, the remaining Trustees shall fill such vacancy by
appointing such other person as they in their discretion
shall see fit consistent with the limitations under the 1940
Act. Such appointment shall be evidenced by a written
instrument signed by a majority of the Trustees in office or
by resolution of the Trustees, duly adopted, which shall be
recorded in the minutes of a meeting of the Trustees,
whereupon the appointment shall take effect.
An appointment of a Trustee may be made by the Trustees then
in office in anticipation of a vacancy to occur by reason of
retirement, resignation or increase in number of Trustees
effective at a later date, provided that said appointment
shall become effective only at or after the effective date
of said retirement, resignation or increase in number of
Trustees. As soon as any Trustee appointed pursuant to this
Section 3.04 shall have accepted this trust, or at such date
as may be specified in the acceptance whenever made, the
trust estate shall vest in the new Trustee or Trustees,
together with the continuing Trustees, without any further
act or conveyance, and he shall be deemed a Trustee
hereunder. The power to appoint a Trustee pursuant to this
Section 3.04 is subject to the provisions of Section 16(a)
of the 1940 Act.
TEMPORARY ABSENCE OF TRUSTEE
Section 3.05. Any Trustee may, by power of attorney,
delegate his power for a period not exceeding six months at
any one time to any other Trustee or Trustees, provided that
in no case shall less than two Trustees personally exercise
the other powers hereunder except as herein otherwise
expressly provided.
NUMBER OF TRUSTEES
Section 3.06. The number of Trustees shall be at least
three, and thereafter shall be such number as shall be fixed
from time to time by a majority of the Trustees, provided,
however, that the number of Trustees shall in no event be
more than twelve (12).
EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE
Section 3.07. The declination to serve, death, resignation,
retirement, removal, incapacity, or inability of the
Trustees, or any one of them, shall not operate to terminate
the Trust or to revoke any existing agency created pursuant
to the terms of this Trust Instrument.
OWNERSHIP OF ASSETS OF THE TRUST
Section 3.08. The assets of the Trust and of each Series
shall be held separate and apart from any assets now or
hereafter held in any capacity other than as Trustee
hereunder by the Trustees or any successor Trustees. Legal
title in all of the assets of the Trust and the right to
conduct any business shall at all times be considered as
vested in the Trustees on behalf of the Trust, except that
the Trustees may cause legal title to any Trust Property to
be held by, or in the name of the Trust, or in the name of
any person as nominee. No Shareholder shall be deemed to
have a severable ownership in any individual asset of the
Trust or of any Series or any right of partition or
possession thereof, but each Shareholder shall have, except
as otherwise provided for herein, a proportionate undivided
beneficial interest in the Trust or Series. The Shares shall
be personal property giving only the rights specifically set
forth in this Trust Instrument.
ARTICLE IV
POWERS OF THE TRUSTEES
POWERS
Section 4.01. The Trustees in all instances shall act as
principals, and are and shall be free from the control of
the Shareholders. The Trustees shall have full power and
authority to do any and all acts and to make and execute any
and all contracts and instruments that they may consider
necessary or appropriate in connection with the management
of the Trust. The Trustees shall not in any way be bound or
limited by present or future laws or customs in regard to
trust investments, but shall have full authority and power
to make any and all investments which they, in their sole
discretion, shall deem proper to accomplish the purpose of
this Trust without recourse to any court or other authority.
Subject to any applicable limitation in this Trust
Instrument or the Bylaws of the Trust, the Trustees shall
have power and authority:
(a) 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, and to sell,
exchange, lend, pledge, mortgage, hypothecate, write options
on and lease any or all of the assets of the Trust;
(b) To operate as and carry on the business of an investment
company, and exercise all the powers necessary and
appropriate to the conduct of such operations;
(c) To borrow money and in this connection issue notes or
other evidence of indebtedness; to secure borrowings by
mortgaging, pledging or otherwise subjecting as security the
Trust Property; to endorse, guarantee, or undertake the
performance of an obligation or engagement of any other
Person and to lend Trust Property;
(d) To provide for the distribution of interests of the
Trust either through a principal underwriter in the manner
hereinafter provided for or by the Trust itself, or both, or
otherwise pursuant to a plan of distribution of any kind;
(e) To adopt Bylaws not inconsistent with this Trust
Instrument providing for the conduct of the business of the
Trust and to amend and repeal them to the extent that they
do not reserve that right to the Shareholders; such Bylaws
shall be deemed incorporated and included in this Trust
Instrument;
(f) To elect and remove such officers and appoint and
terminate such agents as they consider appropriate;
(g) To employ one or more banks, trust companies or
companies that are members of a national securities exchange
or such other entities as the Commission may permit as
custodians of any assets of the Trust subject to any
conditions set forth in this Trust Instrument or in the
Bylaws;
(h) To retain one or more transfer agents and shareholder
servicing agents, or both;
(i) To set record dates in the manner provided herein or in
the Bylaws;
(j) To delegate such authority as they consider desirable to
any officers of the Trust and to any investment adviser,
manager, custodian, underwriter or other agent or
independent contractor;
(k) To sell or exchange any or all of the assets of the
Trust, subject to the provisions of Article XI, Section
11.04(b) hereof;
(l) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or
property; and to execute and deliver powers of attorney to
such person or persons as the Trustees shall deem proper,
granting to such person or persons such power and discretion
with relation to securities or property as the Trustees
shall deem proper;
(m) To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of
securities;
(n) To hold any security or property in a form not
indicating any trust, whether in bearer, book entry,
unregistered or other negotiable form; or either in the name
of the Trust or in the name of a custodian or a nominee or
nominees, subject in either case to proper safeguards
according to the usual practice of Delaware business trusts
or investment companies;
(o) To establish separate and distinct Series with
separately defined investment objectives and policies and
distinct investment purposes in accordance with the
provisions of Article II hereof and to establish classes of
such Series having relative rights, powers and duties as
they may provide consistent with applicable law;
(p) Subject to the provisions of Section 3804 of the
Delaware Act, to allocate assets, liabilities and expenses
of the Trust to a particular Series or class thereof or to
apportion the same between or among two or more Series or
classes thereof, provided that any liabilities or expenses
incurred by a particular Series or class thereof shall be
payable solely out of the assets belonging to that Series as
provided for in Article II hereof;
(q) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation
or concern, any security of which is held in the Trust; to
consent to any contract, lease, mortgage, purchase, or sale
of property by such corporation or concern, and to pay calls
or subscriptions with respect to any security held in the
Trust;
(r) To compromise, arbitrate, or otherwise adjust claims in
favor of or against the Trust or any matter in controversy
including, but not limited to, claims for taxes;
(s) To make distributions of income and of capital gains to
Shareholders in the manner hereinafter provided;
(t) To establish, from time to time, a minimum investment
for Shareholders in the Trust or in one or more Series or
class, and to require the redemption of the Shares of any
Shareholders whose investment is less than such minimum upon
giving notice to such Shareholder;
(u) To establish one or more committees, to delegate any of
the powers of the Trustees to said committees and to adopt a
committee charter providing for such responsibilities,
membership (including Trustees, officers or other agents of
the Trust therein) and any other characteristics of said
committees as the Trustees may deem proper. Notwithstanding
the provisions of this Article IV, and in addition to such
provisions or any other provision of this Trust Instrument
or of the Bylaws, the Trustees may by resolution appoint a
committee consisting of less than the whole number of
Trustees then in office, which committee may be empowered to
act for and bind the Trustees and the Trust, as if the acts
of such committee were the acts of all the Trustees then in
office, with respect to the institution, prosecution,
dismissal, settlement, review or investigation of any
action, suit or proceeding which shall be pending or
threatened to be brought before any court, administrative
agency or other adjudicatory body;
(v) To interpret the investment policies, practices or
limitations of any Series;
(w) Notwithstanding any other provision hereof, to invest
all or a portion of the assets of any series in one or more
open-end investment companies, including investment by means
of a transfer of such assets in an exchange for an interest
or interests in such investment company or companies or by
any other method approved by the Trustees;
(x) To establish a registered office and have a registered
agent in the state of Delaware; and
(y) In general to carry on any other business in connection
with or incidental to any of the foregoing powers, to do
everything necessary, suitable or proper for the
accomplishment of any purpose or the attainment of any
object or the furtherance of any power hereinbefore set
forth, either alone or in association with others, and to do
every other act or thing incidental or appurtenant to or
growing out of or connected with the aforesaid business or
purposes, objects or powers.
The foregoing clauses shall be construed both as objects and
powers, and the foregoing enumeration of specific powers
shall not be held to limit or restrict in any manner the
general powers of the Trustees. Any action by one or more of
the Trustees in their capacity as such hereunder shall be
deemed an action on behalf of the Trust or the applicable
Series, and not an action in an individual capacity.
The Trustees shall not be limited to investing in
obligations maturing before the possible termination of the
Trust.
No one dealing with the Trustees shall be under any
obligation to make any inquiry concerning the authority of
the Trustees, or to see to the application of any payments
made or property transferred to the Trustees or upon their
order.
ISSUANCE AND REPURCHASE OF SHARES
Section 4.02. The Trustees shall have the power to issue,
sell, repurchase, redeem, retire, cancel, acquire, hold,
resell, reissue, dispose of, and otherwise deal in Shares
and, subject to the provisions set forth in Article II and
Article IX, to apply to any such repurchase, redemption,
retirement, cancellation or acquisition of Shares any funds
or property of the Trust, or the particular Series of the
Trust, with respect to which such Shares are issued.
TRUSTEES AND OFFICERS AS SHAREHOLDERS
Section 4.03. Any Trustee, officer or other agent of the
Trust may acquire, own and dispose of Shares to the same
extent as if he were not a Trustee, officer or agent; and
the Trustees may issue and sell or cause to be issued and
sold Shares to and buy such Shares from any such person or
any firm or company in which he is interested, subject only
to the general limitations herein contained as to the sale
and purchase of such Shares; and all subject to any
restrictions which may be contained in the Bylaws.
ACTION BY THE TRUSTEES
Section 4.04. The Trustees shall act by majority vote at a
meeting duly called or by unanimous written consent without
a meeting or by telephone meeting provided a quorum of
Trustees participate in any such telephone meeting, unless
the 1940 Act requires that a particular action be taken only
at a meeting at which the Trustees are present in person. At
any meeting of the Trustees, a majority of the Trustees
shall constitute a quorum. Meetings of the Trustees may be
called orally or in writing by the Chairman of the Board of
Trustees or by any two other Trustees. Notice of the time,
date and place of all meetings of the Trustees shall be
given by the party calling the meeting to each Trustee by
telephone, telefax, or telegram sent to his home or business
address at least twenty-four hours in advance of the meeting
or by written notice mailed to his home or business address
at least seventy-two hours in advance of the meeting. Notice
need not be given to any Trustee who attends the meeting
without objecting to the lack of notice or who executes a
written waiver of notice with respect to the meeting. Any
meeting conducted by telephone shall be deemed to take place
at the principal office of the Trust, as determined by the
Bylaws or by the Trustees. Subject to the requirements of
the 1940 Act, the Trustees by majority vote may delegate to
any one or more of their number their authority to approve
particular matters or take particular actions on behalf of
the Trust. Written consents or waivers of the Trustees may
be executed in one or more counterparts. Execution of a
written consent or waiver and delivery thereof to the Trust
may be accomplished by telefax.
CHAIRMAN OF THE TRUSTEES
Section 4.05. The Trustees shall appoint one of their number
to be Chairman of the Board of Trustees. The Chairman shall
preside at all meetings of the Trustees, shall be
responsible for the execution of policies established by the
Trustees and the administration of the Trust, and may be
(but is not required to be) the chief executive, financial
and/or accounting officer of the Trust.
PRINCIPAL TRANSACTIONS
Section 4.06. Except to the extent prohibited by applicable
law, the Trustees may, on behalf of the Trust, buy any
securities from or sell any securities to, or lend any
assets of the Trust to, any Trustee or officer of the Trust
or any firm of which any such Trustee or officer is a member
acting as principal, or have any such dealings with any
investment adviser, distributor or transfer agent for the
Trust or with any Interested Person of such person; and the
Trust may employ any such person, or firm or company in
which such person is an Interested Person, as broker, legal
counsel, registrar, investment adviser, distributor,
transfer agent, dividend disbursing agent, custodian or in
any other capacity upon customary terms.
ARTICLE V
EXPENSES OF THE TRUST
TRUSTEE REIMBURSEMENT
Section 5.01. Subject to the provisions of Article II,
Section 2.08 hereof, the Trustees shall be reimbursed from
the Trust estate or the assets belonging to the appropriate
Series for their expenses and disbursements, including,
without limitation, fees and expenses of Trustees who are
not Interested Persons of the Trust, interest expense,
taxes, fees and commissions of every kind, expenses of
pricing Trust portfolio securities, expenses of issue,
repurchase and redemption of shares, including expenses
attributable to a program of periodic repurchases or
redemptions, expenses of registering and qualifying the
Trust and its Shares under Federal and State laws and
regulations or under the laws of any foreign jurisdiction,
charges of third parties, including investment advisers,
managers, custodians, transfer agents, portfolio accounting
and/or pricing agents, and registrars, expenses of preparing
and setting up in type prospectuses and statements of
additional information and other related Trust documents,
expenses of printing and distributing prospectuses sent to
existing Shareholders, auditing and legal expenses, reports
to Shareholders, expenses of meetings of Shareholders and
proxy solicitations therefor, insurance expenses,
association membership dues and for such non-recurring items
as may arise, including litigation to which the Trust (or a
Trustee acting as such) is a party, and for all losses and
liabilities by them incurred in administering the Trust, and
for the payment of such expenses, disbursements, losses and
liabilities the Trustees shall have a lien on the assets
belonging to the appropriate Series, or in the case of an
expense allocable to more than one Series, on the assets of
each such Series, prior to any rights or interests of the
Shareholders thereto. This section shall not preclude the
Trust from directly paying any of the aforementioned fees
and expenses.
ARTICLE VI
INVESTMENT ADVISER, PRINCIPAL UNDERWRITER AND TRANSFER AGENT
INVESTMENT ADVISER
Section 6.01. The Trustees may in their discretion, from
time to time, enter into an investment advisory or
management contract or contracts with respect to the Trust
or any Series whereby the other party or parties to such
contract or contracts shall undertake to furnish the
Trustees with such management, investment advisory,
statistical and research facilities and services and such
other facilities and services, if any, and all upon such
terms and conditions, as the Trustees may in their
discretion determine; provided, however, that the initial
approval and entering into of such contract or contracts
shall be subject to a Majority Shareholder Vote.
Notwithstanding any other provision of this Trust
Instrument, the Trustees may authorize any investment
adviser (subject to such general or specific instructions as
the Trustees may from time to time adopt) to effect
purchases, sales or exchanges of portfolio securities, other
investment instruments of the Trust, or other Trust Property
on behalf of the Trustees, or may authorize any officer,
agent, or Trustee to effect such purchases, sales or
exchanges pursuant to recommendations of the investment
adviser (and all without further action by the Trustees).
Any such purchases, sales and exchanges shall be deemed to
have been authorized by all of the Trustees.
The Trustees may authorize, subject to applicable
requirements of the 1940 Act, including those relating to
Shareholder approval, the investment adviser to employ, from
time to time, one or more sub-advisers to perform such of
the acts and services of the investment adviser, and upon
such terms and conditions, as may be agreed upon between the
investment adviser and sub-adviser. Any reference in this
Trust Instrument to the investment adviser shall be deemed
to include such sub-advisers, unless the context otherwise
requires.
PRINCIPAL UNDERWRITER
Section 6.02. The Trustees may in their discretion from time
to time enter into an exclusive or non-exclusive
underwriting contract or contracts providing for the sale of
Shares, whereby the Trust may either agree to sell Shares to
the other party to the contract or appoint such other party
its sales agent for such Shares. In either case, the
contract shall be on such terms and conditions, if any, as
may be prescribed in the Bylaws, and such further terms and
conditions as the Trustees may in their discretion determine
not inconsistent with the provisions of this Article VI, or
of the Bylaws; and such contract may also provide for the
repurchase or sale of Shares by such other party as
principal or as agent of the Trust.
TRANSFER AGENT
Section 6.03. The Trustees may in their discretion from time
to time enter into one or more transfer agency and
Shareholder service contracts whereby the other party or
parties shall undertake to furnish the Trustees with
transfer agency and Shareholder services. The contract or
contracts shall be on such terms and conditions as the
Trustees may in their discretion determine not inconsistent
with the provisions of this Trust Instrument or of the
Bylaws.
PARTIES TO CONTRACT
Section 6.04. Any contract of the character described in
Sections 6.01, 6.02 and 6.03 of this Article VI or any
contract of the character described in Article VIII hereof
may be entered into with any corporation, firm, partnership,
trust or association, 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 void or voidable by reason of the existence of any
relationship, nor shall any person holding such relationship
be disqualified from voting on or executing the same in his
capacity as Shareholder and/or Trustee, 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 VI or Article VIII hereof or of
the Bylaws. The same person (including a firm, corporation,
partnership, trust, or association) may be the other party
to contracts entered into pursuant to Sections 6.01, 6.02
and 6.03 of this Article VI or pursuant to Article VIII
hereof, 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 6.04.
PROVISIONS AND AMENDMENTS
Section 6.05. Any contract entered into pursuant to Sections
6.01 or 6.02 of this Article VI shall be consistent with and
subject to the requirements of Section 15 of the 1940 Act or
other applicable Act of Congress hereafter enacted with
respect to its continuance in effect, its termination, and
the method of authorization and approval of such contract or
renewal thereof, and no amendment to any contract, entered
into pursuant to Section 6.01 of this Article VI shall be
effective unless assented to in a manner consistent with the
requirements of said Section 15, as modified by any
applicable rule, regulation or order of the Commission.
ARTICLE VII
SHAREHOLDERS' VOTING POWERS AND MEETINGS
VOTING POWERS
Section 7.01. The Shareholders shall have power to vote only
(i) for the election of Trustees as provided in Article III,
Sections 3.01 and 3.02 hereof, (ii) for the removal of
Trustees as provided in Article III, Section 3.03(d) hereof,
(iii) with respect to any investment advisory or management
contract as provided in Article VI, Sections 6.01 and 6.05
hereof, and (iv) with respect to such additional matters
relating to the Trust as may be required by law, by this
Trust Instrument, or the Bylaws or any registration of the
Trust with the Commission or any State, or as the Trustees
may consider desirable.
On any matter submitted to a vote of the Shareholders, all
Shares shall be voted separately by individual Series,
except (i) when required by the 1940 Act, Shares shall be
voted in the aggregate and not by individual Series; and
(ii) when the Trustees have determined that the matter
affects the interests of more than one Series, then the
Shareholders of all such Series shall be entitled to vote
thereon. The Trustees may also determine that a matter
affects only the interests of one or more classes of a
Series, in which case any such matter shall be voted on by
such class or classes. A shareholder of each Series shall be
entitled to one vote for each dollar of net asset value
(number of shares owned times net asset value per share) of
such Series on any matter on which such shareholder is
entitled to vote and each fractional dollar amount shall be
entitled to a proportionate fractional vote. There shall be
no cumulative voting in the election of Trustees. Shares may
be voted in person or by proxy or in any manner provided for
in the Bylaws. A proxy may be given in writing. The Bylaws
may provide that proxies may also, or may instead, be given
by any electronic or telecommunications device or in any
other manner. Notwithstanding anything else herein or in the
Bylaws, in the event a proposal by anyone other than the
officers or Trustees of the Trust is submitted to a vote of
the Shareholders of one or more Series or of the Trust, or
in the event of any proxy contest or proxy solicitation or
proposal in opposition to any proposal by the officers or
Trustees of the Trust, Shares may be voted only in person or
by written proxy. Until Shares are issued, the Trustees may
exercise all rights of Shareholders and may take any action
required or permitted by law, this Trust Instrument or any
of the Bylaws of the Trust to be taken by Shareholders.
MEETINGS
Section 7.02. The first Shareholders' meeting shall be held
in order to elect Trustees as specified in Section 3.02 of
Article III hereof at the principal office of the Trust or
such other place as the Trustees may designate. Meetings may
be held within or without the State of Delaware. Special
meetings of the Shareholders of any Series may be called by
the Trustees and shall be called by the Trustees upon the
written request of Shareholders owning at least one-tenth of
the Outstanding Shares entitled to vote. Whenever ten or
more Shareholders meeting the qualifications set forth in
Section 16(c) of the 1940 Act, as the same may be amended
from time to time, seek the opportunity of furnishing
materials to the other Shareholders with a view to obtaining
signatures on such a request for a meeting, the Trustees
shall comply with the provisions of said Section 16(c) with
respect to providing such Shareholders access to the list of
the Shareholders of record of the Trust or the mailing of
such materials to such Shareholders of record, subject to
any rights provided to the Trust or any Trustees provided by
said Section 16(c). Shareholders shall be entitled to at
least fifteen (15) days' notice of any meeting.
QUORUM AND REQUIRED VOTE
Section 7.03. One-third of Shares entitled to vote in person
or by proxy shall be a quorum for the transaction of
business at a Shareholders' meeting, except that where any
provision of law or of this Trust Instrument permits or
requires that holders of any Series shall vote as a Series
(or that holders of a class shall vote as a class), then one-
third of the aggregate number of Shares of that Series (or
that class) entitled to vote shall be necessary to
constitute a quorum for the transaction of business by that
Series (or that class). 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. Except when a larger vote is required by law
or by any provision of this Trust Instrument or the Bylaws,
a majority of the Shares voted in person or by proxy shall
decide any questions and a plurality shall elect a Trustee,
provided that where any provision of law or of this Trust
Instrument permits or requires that the holders of any
Series shall vote as a Series (or that the holders of any
class shall vote as a class), then a majority of the Shares
present in person or by proxy of that Series or, if required
by law, a Majority Shareholder Vote of that Series (or
class), voted on the matter in person or by proxy shall
decide that matter insofar as that Series (or class) is
concerned. Shareholders may act by unanimous written
consent. Actions taken by Series (or class) may be consented
to unanimously in writing by Shareholders of that Series.
DERIVATIVE ACTIONS
Section 7.04. In addition to the requirements set forth in
Section 3816 of the Delaware Act, a Shareholder may bring
derivative action on behalf of the Trust only if the
Shareholder or Shareholders first make a pre-suit demand
upon the Trustees to bring the subject action unless an
effort to cause the Trustees to bring such action is
excused. A demand on the Trustees shall only be excused if a
majority of the Board of Trustees, or a majority of any
committee established to consider the merits of such action,
has a personal financial interest in the action at issue. A
Trustee shall not be deemed to have a personal financial
interest in an action or otherwise be disqualified from
ruling on a Shareholder demand by virtue of the fact that
such Trustee receives remuneration from his service on the
Board of Trustees of the Trust or on the boards of one or
more investment companies with the same or an affiliated
investment advisor or underwriter.
ARTICLE VIII
CUSTODIAN
APPOINTMENT AND DUTIES
Section 8.01. The Trustees shall at all times employ a bank,
a company that is a member of a national securities
exchange, or a trust company, each having capital, surplus
and undivided profits of at least two million dollars
($2,000,000) as custodian with authority as its agent, but
subject to such restrictions, limitations and other
requirements, if any, as may be contained in the Bylaws of
the Trust:
(1) to hold the securities owned by the Trust and deliver
the same upon written order or oral order confirmed in
writing, or by such electro-mechanical or electronic devices
as are agreed to by the Trust and the custodian, if such
procedures have been authorized in writing by the Trust;
(2) to receive and receipt for any moneys due to the Trust
and deposit the same in its own banking department or else
where as the Trustees may direct;
(3) to disburse such funds upon orders or vouchers;
and the Trust may also employ such custodian as its agent:
(4) to keep the books and accounts of the Trust or of any
Series or class and furnish clerical and accounting
services;
and
(5) to compute, if authorized to do so by the Trustees, the
Net Asset Value of any Series, or class thereof, in
accordance with the provisions hereof;
all upon such basis of compensation as may be agreed upon
between the Trustees and the custodian.
The Trustees may also authorize the custodian to employ one
or more sub-custodians from time to time to perform such of
the acts and services of the custodian, and upon such terms
and conditions, as may be agreed upon between the custodian
and such sub-custodian and approved by the Trustees,
provided that in every case such sub-custodian shall be a
bank, a company that is a member of a national securities
exchange, or a trust company organized under the laws of the
United States or one of the states thereof and having
capital, surplus and undivided profits of at least two
million dollars ($2,000,000) or such other person as may be
permitted by the Commission, or otherwise in accordance with
the 1940 Act.
CENTRAL CERTIFICATE SYSTEM
Section 8.02. Subject to such rules, regulations and orders
as the Commission may adopt, the Trustees may direct the
custodian to deposit all or any part of the securities owned
by the Trust in a system for the central handling of
securities established by a national securities exchange or
a national securities association registered with the
Commission under the Securities Exchange Act of 1934, as
amended, or such other person as may be permitted by the
Commission, or otherwise in accordance with the 1940 Act,
pursuant to which system all securities of any particular
class or series of any issuer deposited within the system
are treated as fungible and may be transferred or pledged by
bookkeeping entry without physical delivery of such
securities, provided that all such deposits shall be subject
to withdrawal only upon the order of the Trust or its
custodians, subcustodians or other agents.
ARTICLE IX
DISTRIBUTIONS AND REDEMPTIONS
DISTRIBUTIONS
Section 9.01.
(a) The Trustees may from time to time declare and pay
dividends or other distributions with respect to any Series.
The amount of such dividends or distributions and the
payment of them and whether they are in cash or any other
Trust Property shall be wholly in the discretion of the
Trustees.
(b) Dividends and other distributions may be paid or made to
the Shareholders of record at the time of declaring a
dividend or other distribution or among the Shareholders of
record at such other date or time or dates or times as the
Trustees shall determine, which dividends or distributions,
at the election of the Trustees, may be paid pursuant to a
standing resolution or resolutions adopted only once or with
such frequency as the Trustees may determine. The Trustees
may adopt and offer to Shareholders such dividend
reinvestment plans, cash dividend payout plans or related
plans as the Trustees shall deem appropriate.
(c) Anything in this Trust Instrument to the contrary
notwithstanding, the Trustees may at any time declare and
distribute a dividend of stock or other property pro rata
among the Shareholders of a particular Series, or class
thereof, as of the record date of that Series fixed as
provided in Section (b) hereof.
REDEMPTIONS
Section 9.02. In case any holder of record of Shares of a
particular Series desires to dispose of his Shares or any
portion thereof, he may deposit at the office of the
transfer agent or other authorized agent of that Series a
written request or such other form of request as the
Trustees may from time to time authorize, requesting that
the Series purchase the Shares in accordance with this
Section 9.02; and the Shareholder so requesting shall be
entitled to require the Series to purchase, and the Series
or the principal underwriter of the Series shall purchase
his said Shares, but only at the Net Asset Value thereof (as
described in Section 9.03 of this Article IX). The Series
shall make payment for any such Shares to be redeemed, as
aforesaid, in cash or property from the assets of that
Series and payment for such Shares less any applicable
deferred sales charge and/or fees shall be made by the
Series or the principal underwriter of the Series to the
Shareholder of record within seven (7) days after the date
upon which the request is effective. Upon redemption, shares
shall become Treasury shares and may be re-issued from time
to time.
DETERMINATION OF NET ASSET VALUE AND VALUATION OF PORTFOLIO
ASSETS
Section 9.03. The term "Net Asset Value" of any Series shall
mean that amount by which the assets of that Series exceed
its liabilities, all as determined by or under the direction
of the Trustees. Such value shall be determined separately
for each Series and shall be determined on such days and at
such times as the Trustees may determine. Such determination
shall be made with respect to securities for which market
quotations are readily available, at the market value of
such securities; and with respect to other securities and
assets, at the fair value as determined in good faith by the
Trustees; provided, however, that the Trustees, without
Shareholder approval, may alter the method of valuing
portfolio securities insofar as permitted under the 1940 Act
and the rules, regulations and interpretations thereof
promulgated or issued by the Commission or insofar as
permitted by any Order of the Commission applicable to the
Series. The Trustees may delegate any of their powers and
duties under this Section 9.03 with respect to valuation of
assets and liabilities. The resulting amount, which shall
represent the total Net Asset Value of the particular
Series, shall be divided by the total number of shares of
that Series outstanding at the time and the quotient so
obtained shall be the Net Asset Value per Share of that
Series. At any time, the Trustees may cause the Net Asset
Value per Share last determined to be determined again in
similar manner and may fix the time when such redetermined
value shall become effective. If, for any reason, the net
income of any Series, determined at any time, is a negative
amount, the Trustees shall have the power with respect to
that Series (i) to offset each Shareholder's pro rata share
of such negative amount from the accrued dividend account of
such Shareholder, or (ii) to reduce the number of
Outstanding Shares of such Series by reducing the number of
Shares in the account of each Shareholder by a pro rata
portion of that number of full and fractional Shares which
represents the amount of such excess negative net income, or
(iii) to cause to be recorded on the books of such Series an
asset account in the amount of such negative net income
(provided that the same shall thereupon become the property
of such Series with respect to such Series and shall not be
paid to any Shareholder), which account may be reduced by
the amount, of dividends declared thereafter upon the
Outstanding Shares of such Series on the day such negative
net income is experienced, until such asset account is
reduced to zero; (iv) to combine the methods described in
clauses (i) and (ii) and (iii) of this sentence; or (v) to
take any other action they deem appropriate, in order to
cause (or in order to assist in causing) the Net Asset Value
per Share of such Series to remain at a constant amount per
Outstanding Share immediately after each such determination
and declaration. The Trustees shall also have the power not
to declare a dividend out of net income for the purpose of
causing the Net Asset Value per Share to be increased. The
Trustees shall not be required to adopt, but may at any time
adopt, discontinue or amend the practice of maintaining the
Net Asset Value per Share of the Series at a constant
amount.
SUSPENSION OF THE RIGHT OF REDEMPTION
Section 9.04. The Trustees may declare a suspension of the
right of redemption or postpone the date of payment as
permitted under the 1940 Act. Such suspension shall take
effect at such time as the Trustees 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 until the
Trustees shall declare the suspension at an end. In the case
of a suspension of the right of redemption, a Shareholder
may either withdraw his request for redemption or receive
payment based on the Net Asset Value per Share next
determined after the termination of the suspension. In the
event that any Series is divided into classes, the
provisions of this Section 9.04, to the extent applicable as
determined in the discretion of the Trustees and consistent
with applicable law, may be equally applied to each such
class.
REDEMPTION OF SHARES
Section 9.05. The Trustees may require Shareholders to
redeem Shares for any reason under terms set by the
Trustees, including, but not limited to, (i) the
determination of the Trustees that direct or indirect
ownership of Shares of any Series has or may become
concentrated in such Shareholder to an extent that would
disqualify any Series as a regulated investment company
under the Internal Revenue Code of 1986, as amended (or any
successor statute thereto), (ii) the failure of a
Shareholder to supply a tax identification number if
required to do so, or (iii) the failure of a Shareholder to
pay when due for the purchase of Shares issued to him. The
redemption shall be effected at the redemption price and in
the manner provided in this Article IX.
The holders of Shares shall upon demand disclose to the
Trustees in writing such information with respect to direct
and indirect ownership of Shares as the Trustees deem
necessary to comply with the provisions of the Internal
Revenue Code, or to comply with the requirements of any
other taxing authority.
ARTICLE X
LIMITATION OF LIABILITY AND INDEMNIFICATION
LIMITATION OF LIABILITY
Section 10.01. Neither a Trustee nor an officer of the Trust
when acting in such capacity, shall be personally liable to
any person other than the Trust or a beneficial owner for
any act, omission or obligation of the Trust, any Trustee or
any officer of the Trust. Neither a Trustee nor an officer
of the Trust shall be liable for any act or omission or any
conduct whatsoever in his capacity as Trustee or officer of
the Trust, provided that nothing contained herein or in the
Delaware Act shall protect any Trustee or any officer of the
Trust against any liability to the Trust or to Shareholders
to which he would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the
office of Trustee or Officer hereunder.
INDEMNIFICATION
Section 10.02.
(a) Subject to the exceptions and limitations contained in
Section (b) below:
(i) every Person who is, or has been, a Trustee or officer
of the Trust (hereinafter referred to as a "Covered Person")
shall be indemnified by the Trust to the fullest extent
permitted by law against liability and against all expenses
reasonably incurred or paid by him in connection with any
claim, action, suit or proceeding in which he becomes
involved as a party or otherwise by virtue of his being or
having been a Trustee or officer and against amounts paid or
incurred by him in the settlement thereof;
(ii) the words "claim," "action," "suit," or "proceeding"
shall apply to all claims, actions, suits or proceedings
(civil, criminal or other, including appeals), actual or
threatened while in office or thereafter, and the words
"liability" and "expenses" shall include, without
limitation, attorneys' fees, costs, judgments, amounts paid
in settlement, fines, penalties and other liabilities.
(b) No indemnification shall be provided hereunder to a
Covered Person:
(i) who shall have been adjudicated by a court or body
before which the proceeding was brought (A) to be liable to
the Trust or its Shareholders by reason of willful
misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his
office or (B) not to have acted in good faith in the
reasonable belief that his action was in the best interest
of the Trust; or
(ii) in the event of a settlement, unless there has been a
determination that such Trustee or officer did not engage in
willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his
office,
(A) by the court or other body approving the settlement;
(B) by at least a majority of those Trustees who are neither
Interested Persons of the Trust nor are parties to the
matter based upon a review of readily available facts (as
opposed to a full trial-type inquiry); or
(C) by written opinion of independent legal counsel based
upon a review of readily available facts (as opposed to a
full trial-type inquiry);
provided, however, that any Shareholder may, by appropriate
legal proceedings, challenge any such determination by the
Trustees or by independent counsel.
(c) The rights of indemnification herein provided may be
insured against by policies maintained by the Trust, shall
be severable, shall not be exclusive of or affect any other
rights to which any Covered Person may now or hereafter be
entitled, shall continue as to a person who has ceased to be
a Covered Person and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Nothing contained herein shall affect any rights to
indemnification to which Trust personnel, other than Covered
Persons, and other persons may be entitled by contract or
otherwise under law.
(d) Expenses in connection with the preparation and
presentation of a defense to any claim, action, suit or
proceeding of the character described in paragraph (a) of
this Section 10.02 may be paid by the Trust or Series from
time to time prior to final disposition thereof upon receipt
of an undertaking by or on behalf of such Covered Person
that such amount will be paid over by him to the Trust or
Series if it is ultimately determined that he is not
entitled to indemnification under this Section 10.02;
provided, however, that either (a) such Covered Person shall
have provided appropriate security for such undertaking, (b)
the Trust is insured against losses arising out of any such
advance payments or (c) either a majority of the Trustees
who are neither Interested Persons of the Trust nor parties
to the matter, or independent legal counsel in a written
opinion, shall have determined, based upon a review of
readily available facts (as opposed to a trial-type inquiry
or full investigation), that there is reason to believe that
such Covered Person will be found entitled to
indemnification under this Section 10.02.
SHAREHOLDERS
Section 10.03. In case any Shareholder or former Shareholder
of any Series shall be held to be personally liable solely
by reason of his being or having been a Shareholder of such
Series and not because of his acts or omissions or for some
other reason, 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 belonging to the applicable
Series to be held harmless from and indemnified against all
loss and expense arising from such liability. The Trust, on
behalf of the affected Series, shall, upon request by the
Shareholder, assume the defense of any claim made against
the Shareholder for any act or obligation of the Series and
satisfy any judgment thereon from the assets of the Series.
ARTICLE XI
MISCELLANEOUS
TRUST NOT A PARTNERSHIP
Section 11.01. It is the intention of the Trustees to create
a business trust pursuant to the Delaware Act. 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
business trust pursuant to the Delaware Act. No Trustee
hereunder shall have any power to bind personally either the
Trust's officers or any Shareholder. All persons extending
credit to, contracting with or having any claim against the
Trust or the Trustees shall look only to the assets of the
appropriate Series or (if the Trustees shall have yet to
have established Series) of the Trust for payment under such
credit, contract or claim; and neither the Shareholders nor
the Trustees, nor any of their agents, whether past, present
or future, shall be personally liable therefor. Nothing in
this Trust Instrument shall protect a Trustee against any
liability to which the Trustee would otherwise be subject by
reason of willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct
of the office of Trustee hereunder.
TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR
SURETY
Section 11.02. The exercise by the Trustees or the officers
of the Trust of their powers and discretions hereunder in
good faith and with reasonable care under the circumstances
then prevailing shall be binding upon everyone interested.
Subject to the provisions of Article X hereof and to Section
11.01 of this Article XI, the Trustees or the officers of
the Trust shall not be liable for errors of judgment or
mistakes of fact or law. The Trustees and the officers of
the Trust may take advice of counsel or other experts with
respect to the meaning and operation of this Trust
Instrument, and subject to the provisions of Article X
hereof and Section 11.01 of this Article XI, shall be under
no liability for any act or omission in accordance with such
advice or for failing to follow such advice. The Trustees
and the officers of the Trust shall not be required to give
any bond as such, nor any surety if a bond is obtained.
ESTABLISHMENT OF RECORD DATES
Section 11.03. The Trustees may close the Share transfer
books of the Trust for a period not exceeding sixty (60)
days preceding the date of any meeting of Shareholders, or
the date for the payment of any dividends or other
distributions, or the date for the allotment of rights, or
the date when any change or conversion or exchange of Shares
shall go into effect; or in lieu of closing the stock
transfer books as aforesaid, the Trustees may fix in advance
a date, not exceeding sixty (60) days preceding the date of
any meeting of Shareholders, or the date for payment of any
dividend or other distribution, or the date for the
allotment of rights, or the date when any change or
conversion or exchange of Shares shall go into effect, as a
record date for the determination of the Shareholders
entitled to notice of, and to vote at, any such meeting, or
entitled to receive payment of any such dividend or other
distribution, or to any such allotment of rights, or to
exercise the rights in respect of any such change,
conversion or exchange of Shares, and in such case such
Shareholders and only such Shareholders as shall be
Shareholders of record on the date so fixed shall be
entitled to such notice of, and to vote at, such meeting, or
to receive payment of such dividend or other distribution,
or to receive such allotment or rights, or to exercise such
rights, as the case may be, notwithstanding any transfer of
any Shares on the books of the Trust after any such record
date fixed as aforesaid.
TERMINATION OF TRUST
Section 11.04.
(a) This Trust shall continue without limitation of time but
subject to the provisions of sub-section (b) of this Section
11.04.
(b) The Trustees may, subject to a Majority Shareholder Vote
of each Series affected by the matter or, if applicable, to
a Majority Shareholder Vote of the Trust, and subject to a
vote of a majority of the Trustees,
(i) sell and convey all or substantially all of the assets
of the Trust or any affected Series to another trust,
partnership, association or corporation, or to a separate
series of shares thereof, organized under the laws of any
state which trust, partnership, association or corporation
is an open-end management investment company as defined in
the 1940 Act, or is a series thereof, for adequate
consideration which may include the assumption of all
outstanding obligations, taxes and other liabilities,
accrued or contingent, of the Trust or any affected Series,
and which may include shares of beneficial interest, stock
or other ownership interests of such trust, partnership,
association or corporation or of a series thereof; or
(ii) at any time sell and convert into money all of the
assets of the Trust or any affected Series.
Upon making reasonable provision, in the determination of
the Trustees, for the payment of all such liabilities in
either (i) or (ii), by such assumption or otherwise, the
Trustees shall distribute the remaining proceeds or assets
(as the case may be) of each Series (or class) ratably among
the holders of Shares of that Series then outstanding.
(c) Upon completion of the distribution of the remaining
proceeds or the remaining assets as provided in sub-section
(b), the Trust or any affected Series shall terminate and
the Trustees and the Trust shall be discharged of any and
all further liabilities and duties hereunder and the right,
title and interest of all parties with respect to the Trust
or Series shall be cancelled and discharged.
Upon termination of the Trust, following completion of
winding up of its business, the Trustees shall cause a
certificate of cancellation of the Trust's certificate of
trust to be filed in accordance with the Delaware Act, which
certificate of cancellation may be signed by any one
Trustee.
MERGERS
Section 11.05. (a) Notwithstanding anything else herein, the
Trustees, in order to change the form of organization of the
Trust, may, without prior Shareholder approval, (i) cause
the Trust to merge or consolidate with or into one or more
trusts, partnerships (general or limited), associations,
limited liability companies or corporations so long as the
surviving or resulting entity is an open-end management
investment company under the 1940 Act, or is a Series
thereof, that will succeed to or assume the Trust's
registration under that Act and which is formed, organized
or existing under the laws of a state, commonwealth,
possession or colony of the United States or (ii) cause the
Trust to incorporate under the laws of Delaware.
(b) The Trustees may, subject to a Majority Shareholder Vote
of the Trust, and subject to a vote of a majority of the
Trustees, cause the Trust to merge or consolidate with or
into one or more trusts, partnerships (general or limited),
associations, limited liability companies or corporations.
(c) Any agreement of merger or consolidation or certificate
of merger or consolidation may be signed by a majority of
Trustees and facsimile signatures conveyed by electronic or
telecommunication means shall be valid.
(d) Pursuant to and in accordance with the provisions of
Section 3815(f) of the Delaware Act, and notwithstanding
anything to the contrary contained in this Trust Instrument,
an agreement of merger or consolidation approved by the
Trustees in accordance with paragraphs (a) or (b) of this
Section 11.05 may effect any amendment to the Trust
Instrument or effect the adoption of a new Trust Instrument
of the Trust if it is the surviving or resulting trust in
the merger or consolidation.
FILING OF COPIES, REFERENCES, HEADINGS
Section 11.06. The original or a copy of this Trust
Instrument and of each amendment hereof or Trust Instrument
supplemental hereto shall be kept at the office of the Trust
where it may be inspected by any Shareholder. A supplemental
trust instrument executed by any one Trustee may be relied
upon as a Supplement hereof. Anyone dealing with the Trust
may rely on a certificate by an officer or Trustee of the
Trust as to whether or not any such amendments or
supplements have been made and as to any matters in
connection with the Trust hereunder, and with the same
effect as if it were the original, may rely on a copy
certified by an officer or Trustee of the Trust to be a copy
of this Trust Instrument or of any such amendment or
supplemental Trust Instrument. In this Trust Instrument or
in any such amendment or supplemental Trust Instrument,
references to this Trust Instrument, and all expressions
like "herein," "hereof" and "hereunder," shall be deemed to
refer to this Trust Instrument as amended or affected by any
such supplemental Trust Instrument. All expressions like
"his", "he" and "him", shall be deemed to include the
feminine and neuter, as well as masculine, genders. Headings
are placed herein for convenience of reference only and in
case of any conflict, the text of this Trust Instrument,
rather than the headings, shall control. This Trust
Instrument may be executed in any number of counterparts
each of which shall be deemed an original.
APPLICABLE LAW
Section 11.07. The trust set forth in this instrument is
made in the State of Delaware, and the Trust and this Trust
Instrument, and the rights and obligations of the Trustees
and Shareholders hereunder, are to be governed by and
construed and administered according to the Delaware Act and
the laws of said State; provided, however, that there shall
not be applicable to the Trust, the Trustees or this Trust
Instrument (a) the provisions of Section 3540 of Title 12 of
the Delaware Code or (b) any provisions of the laws
(statutory or common) of the State of Delaware (other than
the Delaware Act) pertaining to trusts which relate to or
regulate (i) the filing with any court or governmental body
or agency of trustee accounts or schedules of trustee fees
and charges, (ii) affirmative requirements to post bonds for
trustees, officers, agents or employees of a trust, (iii)
the necessity for obtaining court or other governmental
approval concerning the acquisition, holding or disposition
of real or personal property, (iv) fees or other sums
payable to trustees, officers, agents or employees of a
trust, (v) the allocation of receipts and expenditures to
income or principal, (vi) restrictions or limitations on the
permissible nature, amount or concentration of trust
investments or requirements relating to the titling, storage
or other manner of holding of trust assets, or (vii) the
establishment of fiduciary or other standards or
responsibilities or limitations on the acts or powers of
trustees, which are inconsistent with the limitations or
liabilities or authorities and powers of the Trustees set
forth or referenced in this Trust Instrument. The Trust
shall be of the type commonly called a "business trust", and
without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a
trust under Delaware law. The Trust specifically reserves
the right to exercise any of the powers or privileges
afforded to trusts or actions that may be engaged in by
trusts under the Delaware Act, and the absence of a specific
reference herein to any such power, privilege or action
shall not imply that the Trust may not exercise such power
or privilege or take such actions.
AMENDMENTS
Section 11.08. Except as specifically provided herein, the
Trustees may, without shareholder vote, amend or otherwise
supplement this Trust Instrument by making an amendment, a
Trust Instrument supplemental hereto or an amended and
restated Trust Instrument. Shareholders shall have the right
to vote (i) on any amendment which would affect their right
to vote granted in Section 7.01 of Article VII hereof, (ii)
on any amendment to this Section 11.08, (iii) on any
amendment as may be required by law or by the Trust's
registration statement filed with the Commission and (iv) on
any amendment submitted to them by the Trustees. Any
amendment required or permitted to be submitted to
Shareholders which, as the Trustees determine, shall affect
the Shareholders of one or more Series shall be authorized
by vote of the Shareholders of each Series affected and no
vote of shareholders of a Series not affected shall be
required. Notwithstanding anything else herein, any
amendment to Article 10 hereof shall not limit the rights to
indemnification or insurance provided therein with respect
to action or omission of Covered Persons prior to such
amendment.
FISCAL YEAR
Section 11.09. The fiscal year of the Trust shall end on a
specified date as set forth in the Bylaws, provided,
however, that the Trustees may, without Shareholder
approval, change the fiscal year of the Trust.
USE OF THE WORD "FIDELITY"
Section 11.10. Fidelity Management & Research Company
("FMR") has consented to, and granted a non-exclusive
license for, the use by any Series or by the Trust of the
identifying word "Fidelity" or "Spartan" in the name of any
Series or of the Trust. Such consent is subject to
revocation by FMR in its discretion, if FMR or subsidiary or
affiliate thereof is not employed as the investment adviser
of each Series of the Trust. As between the Trust and FMR,
FMR controls the use of the name of the Trust insofar as
such name contains the identifying word "Fidelity" or
"Spartan." FMR may, from time to time, use the identifying
word "Fidelity" or "Spartan" in other connections and for
other purposes, including, without limitation, in the names
of other investment companies, corporations or businesses
which it may manage, advise, sponsor or own or in which it
may have a financial interest. FMR may require the Trust or
any Series thereof to cease using the identifying word
"Fidelity" or "Spartan" in the name of the Trust or any
Series thereof if the Trust or any Series thereof ceases to
employ FMR or a subsidiary or affiliate thereof as
investment adviser.
PROVISIONS IN CONFLICT WITH LAW
Section 11.11. The provisions of this Trust Instrument 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 Internal Revenue Code or with other
applicable laws and regulations, the conflicting provision
shall be deemed never to have constituted a part of this
Trust Instrument; provided, however, that such determination
shall not affect any of the remaining provisions of this
Trust Instrument or render invalid or improper any action
taken or omitted prior to such determination. If any
provision of this Trust Instrument shall be held invalid or
unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such
provisions in any other jurisdiction or any other provision
of this Trust Instrument in any jurisdiction.
IN WITNESS WHEREOF, the undersigned, being all of the
Trustees of the Trust, have executed this instrument as of
the date set forth above.
/s/Edward C. Johnson 3d /s/Peter S. Lynch
Edward C. Johnson 3d* Peter S. Lynch*
/s/Ralph F. Cox /s/William O. McCoy
Ralph F. Cox William O. McCoy
/s/Phyllis Burke Davis /s/Gerald C. McDonough
Phyllis Burke Davis Gerald C. McDonough
/s/Robert M. Gates /s/Marvin L. Mann
Robert M. Gates Marvin L. Mann
/s/Donald J. Kirk /s/Robert C. Pozen
Donald J. Kirk Robert C. Pozen*
/s/Ned C. Lautenbach /s/Thomas R. Williams
Ned C. Lautenbach Thomas R. Williams
*Interested Trustees
The business addresses of the
members of the Board of
Trustees are:
Interested Trustees (*):
82 Devonshire Street
Boston, MA 02109
Non-Interested Trustees:
82 Devonshire Street
Boston, MA 02109
Mailing Address:
P.O. Box 9235
Boston, MA 02205-9235
