<PAGE> PAGE 1
000 A000000 02/28/98
000 C000000 0000703887
000 D000000 N
000 E000000 NF
000 F000000 Y
000 G000000 N
000 H000000 N
000 I000000 3.0
000 J000000 A
001 A000000 PAINEWEBBER AMERICA FUND
001 B000000 811-3502
001 C000000 2127132421
002 A000000 1285 AVENUE OF THE AMERICAS
002 B000000 NEW YORK
002 C000000 NY
002 D010000 10019
003 000000 N
004 000000 N
005 000000 N
006 000000 N
007 A000000 Y
007 B000000 1
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007 C020100 PAINEWEBBER GROWTH & INCOME FUND
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020 A000001 BEAR, STERNS & COMPANY
020 B000001 13-3299429
020 C000001 86
020 A000002 MERRILL LYNCH PIERCE
020 B000002 13-5674085
020 C000002 63
020 A000003 MORGAN STANLEY AND CO INC
020 B000003 13-2655998
020 C000003 60
020 A000004 CS FIRST BOSTON CORP
020 B000004 13-5015677
020 C000004 60
020 A000005 DONALDSON, LUFKIN & JENRETTE
020 B000005 13-2741729
020 C000005 57
020 A000006 J.P. MORGAN SECURITIES
020 B000006 13-3224016
<PAGE> PAGE 2
020 C000006 52
020 A000007 BERNSTEIN (SANFORD) & CO
020 B000007 13-2625874
020 C000007 35
020 A000008 PRUDENTIAL SECURITIES INCORPORATED
020 B000008 22-2347336
020 C000008 33
020 A000009 BRIDGE TRADING CO
020 B000009 43-1450530
020 C000009 25
020 A000010 LEHMAN BROTHERS
020 B000010 13-2518466
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021 000000 839
022 A000001 STATE STREET BANK AND TRUST CO.
022 B000001 04-1867445
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022 B000004 87-0432248
022 C000004 754571
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022 A000005 SALOMON BROTHERS
022 B000005 13-3082694
022 C000005 505996
022 D000005 1828
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022 B000006 13-5680329
022 C000006 131250
022 D000006 0
022 A000007 CITICORP SECURITIES MARKETS INC
022 B000007 13-2765182
022 C000007 127337
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022 A000008 YAMAICHI INTERNATIONAL (AMERICA)
022 B000008 13-5659656
022 C000008 63287
022 D000008 0
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022 B000009 13-2655998
022 C000009 38050
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<PAGE> PAGE 3
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<PAGE> PAGE 4
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<PAGE> PAGE 5
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<PAGE> PAGE 6
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<PAGE> PAGE 7
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SIGNATURE JULIAN SLUYTERS
TITLE TREASURER
For period ending February 28, 1998
File number 811-3502
77. A. Is the Registrant filing any of the following attachments
with the current
filing of Form N-SAR? (ANSWER FOR ALL SERIES AS A GROUP) Y
Y/N
NOTE: If answer is "Y" (Yes), mark those items below being
filed as an attachment to this
form or incorporated by reference. __
Y/N
B. Accountant s report on internal control __
C. Matters submitted to a vote of security holders N
D. Policies with respect to security investments N
E. Legal proceedings N
F. Changes in security for debt N
G. Defaults and arrears on senior securities N
H. Changes in control of Registrant N
I. Terms of new or amended securities N
J. Revaluation of assets or restatement of capital
share account N
K. Changes in Registrant s certifying accountant N
L. Changes in accounting principles and practices N
M. Mergers N
N. Actions required to be reported pursuant to Rule 2a-7 N
O. Transactions effected pursuant to Rule 10f-3 Y
P. Information required to be filed pursuant to existing
exemptive orders N
Attachment Information (Cont. On Screen 39)
<PAGE>
For period ending February 28, 1998
File number 811-3502
Attachment Information (Cont. from Screen 38)
77. Q. 1. Exhibits Y
Y/N
2. Any information called for by
instructions to sub-item 77Q2 N
Y/N
3. Any information called for by instructions to sub-item
77Q3 N
Y/N
SCREEN NUMBER: 39
__ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __
__ __ __ __ __ __ __ __
79. List the "811" numbers and names of Registrant s
wholly-owned investment
company subsidiariesconsolidated in this report.
811 Number Subsidiary Name
<PAGE>
FORM 10f-3 FUND: PW Growth and Income
Record of Securities Purchased Under the Fund's Rule 10f-3
Procedures
1. Issuer: Knoll Inc.
2. Date of Purchase: 5/9/97 3. Date offering commenced:5/9/97
4. Underwriters from whom purchased: Merrill Lynch
5. "Affiliated Underwriter" managing or participating in syndicate:
PaineWebber
6. Aggregate principal amount of purchase: $2,480,900
7. Aggregate principal amount of offering: $136,000,000
8. Purchase price (net of fees and expenses): $17
9. Initial public offering price: $17
10. Commission, spread or profit: % $0.60
11. Have the following conditions been satisfied?
YES
NO
a. The securities are part of an issue registered under
the Securities Act of 1933 which is
being offered to the public or are "municipal
securities" as defined in Section 3(a)(29) of
the Securities Exchange Act of 1934.
X
___
b. The securities were purchased prior to the end of
the end first full business day of the
offering at not more than the initial offering price
(or, if a rights offering, , the securities
were purchased on or before the fourth day preceding
the day on which the offering
terminated.
X
___
c. The underwriting was a firm commitment underwriting.
X
___
d. The commission, spread or profit was reasonable
and fair in relation to that being
received by others for underwriting similar securities
during the same period.
X
___
e. (1) If securities are registered under the
Securities Act of 1933, the issuer of the
securities and its predecessor have been in continuous
operation for not less than three
years.
X
___
(2) If securities are municipal securities,
the issue of securities has received an
investment grade rating from a nationally recognized
statistical rating organization or,
if the issuer or entity supplying the revenues from which the issue
is to be paid shall
have been in continuous operation for less than
three years (including any
predecessor), the issue has received one of the three
highest ratings from at least one
such rating organization.
N/A
___
f. The amount of such securities purchased by all of
the investment companies advised
by Mitchell Hutchins did not exceed 4% of the principal amount o
f the offering or
$500,000 in principal amount, whichever is greater, provided
that in no event did such
amount exceed 10% of the principal amount of the offering.
X
___
g. The purchase price was less than 3% of the Fund's
total assets.
X
___
h. No Affiliated Underwriter was a direct or indirect
participant in or beneficiary of the sale
or, with respect to municipal securities, no purchases were
designated as group sales
or otherwise allocated to the account of any Affiliated Underwriter.
X
___
Approved:Mark Tincher Date: 5/12/97<PAGE>
FORM 10f-3 FUND:
PW Growth and Income
Record of Securities Purchased Under the Fund's Rule 10f-3 Procedures
1. Issuer: Boston Properties
2. Date of Purchase: 6/17/97
3. Date offering commenced: 6/17/96
4. Underwriters from whom purchased: Merrill Lynch
5. "Affiliated Underwriter" managing or participating
in syndicate: PaineWebber
6. Aggregate principal amount of purchase: $575,000
7. Aggregate principal amount of offering: $785,000,000
8. Purchase price (net of fees and expenses): $25
9. Initial public offering price: $25
10. Commission, spread or profit: % $0.95
11. Have the following conditions been satisfied?
YES
NO
a. The securities are part of an issue
registered under the Securities Act of 1933 which is
being offered to the public or are "municipal securities"
as defined in Section 3(a)(29) of
the Securities Exchange Act of 1934.
X
___
b. The securities were purchased prior to the
end of the end first full business day of the
offering at not more than the initial offering price
(or, if a rights offering, , the securities
were purchased on or before the fourth day preceding
the day on which the offering
terminated.
X
___
c. The underwriting was a firm commitment underwriting.
X
___
d. The commission, spread or profit was
reasonable and fair in relation to that being
received by others for underwriting similar securities during
the same period.
X
___
e. (1) If securities are registered under the Securities
Act of 1933, the issuer of the
securities and its predecessor have been in continuous operation
for not less
than three
years.
X
___
(2) If securities are municipal securities, the issue
of securities has received an
investment grade rating from a nationally recognized statistical
rating organization or,
if the issuer or entity supplying the revenues from which the issue
is to be paid shall
have been in continuous operation for less than
three years (including any
predecessor), the issue has received one of the three
highest ratings from at least one
such rating organization.
N/A
___
f. The amount of such securities purchased by
all of the investment companies advised
by Mitchell Hutchins did not exceed 4% of the principal
amount of the offering or
$500,000 in principal amount, whichever is greater, provided
that in no event did such
amount exceed 10% of the principal amount of the offering.
X
___
g. The purchase price was less than 3% of the Fund's total assets.
X
___
h. No Affiliated Underwriter was a direct or indirect participant
in or beneficiary of the sale
or, with respect to municipal securities, no purchases were designated
as group sales
or otherwise allocated to the account of any Affiliated Underwriter.
X
___
Approved: Mark Tincher Date: 6/19/97
FORM 10f-3 FUND: PW Growth and Income
Record of Securities Purchased Under the Fund's Rule 10f-3 Procedures
1. Issuer: MCN Energy Group
2. Date of Purchase: 6/24/97
3. Date offering commenced: 6/24/97
4. Underwriters from whom purchased: Merrill Lynch
5. "Affiliated Underwriter" managing or participating
in syndicate: PaineWebber
6. Aggregate principal amount of purchase: $1,628,087
7. Aggregate principal amount of offering: $247,562,500
8. Purchase price (net of fees and expenses): $29.5
9. Initial public offering price: $29.5
10. Commission, spread or profit: % $0.50
11. Have the following conditions been satisfied?
YES
NO
a. The securities are part of an issue registered under
the Securities Act of 1933 which is
being offered to the public or are "municipal
securities" as defined in Section 3(a)(29) of
the Securities Exchange Act of 1934.
X
___
b. The securities were purchased prior to the end of the end
first full business day of the
offering at not more than the initial offering price
(or, if a rights offering, , the securities
were purchased on or before the fourth day preceding
the day on which the offering
terminated.
X
___
c. The underwriting was a firm commitment underwriting.
X
___
d. The commission, spread or profit was reasonable
and fair in relation to that being
received by others for underwriting similar securities during
the same period.
X
___
e. (1) If securities are registered under
the Securities Act of 1933, the issuer of the
securities and its predecessor have been in continuous
operation for not less than three
years.
X
___
(2) If securities are municipal securities,
the issue of securities has received an
investment grade rating from a nationally recognized
statistical rating organization or,
if the issuer or entity supplying the revenues from
which the issue is to be paid shall
have been in continuous operation for less than
three years (including any
predecessor), the issue has received one of the three highest
ratings from at least one
such rating organization.
N/A
___
f. The amount of such securities purchased by all of the investment
companies advised
by Mitchell Hutchins did not exceed 4% of the principal
amount of the offering or
$500,000 in principal amount, whichever is greater,
provided that in no event did such
amount exceed 10% of the principal amount of the offering.
X
___
g. The purchase price was less than 3% of the Fund's total assets.
X
___
h. No Affiliated Underwriter was a direct or indirect
participant in or beneficiary of the sale
or, with respect to municipal securities, no
purchases were designated as group sales
or otherwise allocated to the account of any Affiliated Underwriter.
X
___
Approved:Mark Tincher Date:
6/30/97<PAGE>
FORM 10f-3 FUND: PW Growth and Income
Record of Securities Purchased Under the Fund's Rule 10f-3
Procedures
1. Issuer: Equity Office
2. Date of Purchase: 7/7/97
3. Date offering commenced: 7/7/97
4. Underwriters from whom purchased: Merrill Lynch
5. "Affiliated Underwriter" managing or participating in syndicate:
PaineWebber
6. Aggregate principal amount of purchase: $252,000
7. Aggregate principal amount of offering: $525,000,000
8. Purchase price (net of fees and expenses): $21
9. Initial public offering price: $21
10. Commission, spread or profit: % $0.82
11. Have the following conditions been satisfied?
YES
NO
a. The securities are part of an issue registered under the
Securities Act of 1933 which is
being offered to the public or are "municipal securities" as
defined in Section 3(a)(29) of
the Securities Exchange Act of 1934.
X
___
b. The securities were purchased prior to the end of the end
first full business day of the
offering at not more than the initial offering price (or,
if a rights offering, , the securities
were purchased on or before the fourth day preceding the
day on which the offering
terminated.
X
___
c. The underwriting was a firm commitment underwriting.
X
___
d. The commission, spread or profit was reasonable and fair
in relation to that being
received by others for underwriting similar securities during
the same period.
X
___
e. (1) If securities are registered under the
Securities Act of 1933, the issuer of the
securities and its predecessor have been in continuous operation
for not less than three
years.
X
___
(2) If securities are municipal securities,
the issue of securities has received an
investment grade rating from a nationally recognized statistical
rating organization or,
if the issuer or entity supplying the revenues
from which the issue is to be paid shall
have been in continuous operation for less than three years
(including any
predecessor), the issue has received one of the three highest
ratings from at least one
such rating organization.
N/A
___
f. The amount of such securities purchased by all of the
investment companies advised
by Mitchell Hutchins did not exceed 4% of the principal
amount of the offering or
$500,000 in principal amount, whichever is greater, provided
that in no event did such
amount exceed 10% of the principal amount of the offering.
X
___
g. The purchase price was less than 3% of the Fund's total assets.
X
___
h. No Affiliated Underwriter was a direct or indirect
participant in or beneficiary of the sale
or, with respect to municipal securities, no purchases were
designated as group sales
or otherwise allocated to the account of any Affiliated Underwriter.
X
___
Approved:Mark Tincher Date: 7/8/97
<PAGE>
FORM 10f-3 FUND: PW Growth and Income
Record of Securities Purchased Under the Fund's Rule 10f-3 Procedures
1. Issuer: Tower Automotive
2. Date of Purchase: 7/24/97
3. Date offering commenced: 7/24/97
4. Underwriters from whom purchased: Donaldson Lufkin (DLJ)
5. "Affiliated Underwriter" managing or participating
in syndicate: PaineWebber
6. Aggregate principal amount of purchase: $65,000
7. Aggregate principal amount of offering: $15,000,000
8. Purchase price (net of fees and expenses): $100
9. Initial public offering price: $100
10. Commission, spread or profit: % $16.50
11. Have the following conditions been satisfied?
YES
NO
a. The securities are part of an issue registered under
the Securities Act of 1933 which is
being offered to the public or are "municipal securities" as
defined in Section 3(a)(29) of
the Securities Exchange Act of 1934.
X
___
b. The securities were purchased prior to the end of
the end first full business day of the
offering at not more than the initial
offering price (or, if a rights offering, the securities
were purchased on or before the fourth day
preceding the day on which the offering
terminated.
X
___
c. The underwriting was a firm commitment underwriting.
X
___
d. The commission, spread or profit was
reasonable and fair in relation to that being
received by others for underwriting similar securities
during the same period.
X
___
e. (1) If securities are registered under the
Securities Act of 1933, the issuer of the
securities and its predecessor have been in
continuous operation for not less than three
years.
X
___
(2) If securities are municipal securities,
the issue of securities has received an
investment grade rating from a nationally recognized
statistical rating organization or,
if the issuer or entity supplying the revenues from which
the issue is to be paid shall
have been in continuous operation for less than three
years (including any
predecessor), the issue has received one of the three
highest ratings from at least one
such rating organization.
N/A
___
f. The amount of such securities purchased by all of
the investment companies advised
by Mitchell Hutchins did not exceed 4% of the principal amount
of the offering or
$500,000 in principal amount, whichever is greater, provided
that in no event did such
amount exceed 10% of the principal amount of the offering.
X
___
g. The purchase price was less than 3% of the Fund's total assets.
X
___
h. No Affiliated Underwriter was a direct or
indirect participant in or beneficiary of the sale
or, with respect to municipal securities, no purchases
were designated as group sales
or otherwise allocated to the account of any Affiliated
Underwriter.
X
___
Approved: Mark Tincher
Date: 7/29/97<PAGE>
FORM 10f-3 FUND: PW Growth and Income
Record of Securities Purchased Under the Fund's Rule 10f-3 Procedures
1. Issuer: Ispat International
2. Date of Purchase: 8/7/97
3. Date offering commenced: 8/7/97
4. Underwriters from whom purchased: First Boston
5. "Affiliated Underwriter" managing or participating
in syndicate: PaineWebber
6. Aggregate principal amount of purchase: $1,471,000
7. Aggregate principal amount of offering: $519,750,000
8. Purchase price (net of fees and expenses): $27
9. Initial public offering price: $27
10. Commission, spread or profit: % $0.73
11. Have the following conditions been satisfied?
YES
NO
a. The securities are part of an issue registered
under the Securities Act of 1933 which is
being offered to the public or are "municipal securities" as
defined in Section 3(a)(29) of
the Securities Exchange Act of 1934.
X
___
b. The securities were purchased prior to the end
of the end first full business day of the
offering at not more than the initial offering
price (or, if a rights offering, , the securities
were purchased on or before the fourth day preceding
the day on which the offering
terminated.
X
___
c. The underwriting was a firm commitment underwriting.
X
___
d. The commission, spread or profit was reasonable and
fair in relation to that being
received by others for underwriting similar
securities during the same period.
X
___
e. (1) If securities are registered under the Securities Act
of 1933, the issuer of the
securities and its predecessor have been in continuous operation
for not less than three
years.
X
___
(2) If securities are municipal securities, the issue of
securities has received an
investment grade rating from a nationally recognized statistical
rating organization or,
if the issuer or entity supplying the revenues from which the issue
is to be paid shall
have been in continuous operation for less than three years
(including any
predecessor), the issue has received one of the three highest ratings
from at least one
such rating organization.
N/A
___
f. The amount of such securities purchased by all of the
investment companies advised
by Mitchell Hutchins did not exceed 4% of the principal amount of
the offering or
$500,000 in principal amount, whichever is greater, provided that
in no event did such
amount exceed 10% of the principal amount of the offering.
X
___
g. The purchase price was less than 3%
of the Fund's total assets.
X
___
h. No Affiliated Underwriter was a direct or indirect
participant
in or beneficiary of the sale
or, with respect to municipal securities, no purchases were designated
as group sales
or otherwise allocated to the account of any Affiliated Underwriter.
X
___
Approved: Mark Tincher Date: 8/7/97<PAGE>
FORM 10f-3
FUND: PW Growth and Income
Record of Securities Purchased Under the Fund's Rule 10f-3 Procedures
1. Issuer: Steel Dynamics
2. Date of Purchase: 8/13/97
3. Date offering commenced: 8/13/97
4. Underwriters from whom purchased: McDonald & Co.
5. "Affiliated Underwriter" managing or participating in syndicate:
PaineWebber
6. Aggregate principal amount of purchase: $250,500
7. Aggregate principal amount of offering: $210,000,000
8. Purchase price (net of fees and expenses): $25
9. Initial public offering price: $25
10. Commission, spread or profit: % $0.60
11. Have the following conditions been satisfied?
YES
NO
a. The securities are part of an issue registered
under the Securities Act of 1933 which is
being offered to the public or are "municipal securities"
as defined in Section 3(a)(29) of
the Securities Exchange Act of 1934.
X
___
b. The securities were purchased prior to the end
of the end first full business day of the
offering at not more than the initial offering price
(or, if a rights offering, , the securities
were purchased on or before the fourth day preceding the
day on which the offering
terminated.
X
__
c. The underwriting was a firm commitment underwriting.
X
___
d. The commission,
spread or profit was reasonable and fair in relation
to that being
received by others for underwriting similar securities
during the same period.
X
___
e. (1) If securities are registered under the Securities
Act of 1933, the issuer of the
securities and its predecessor have been in continuous
operation for not less than three
years.
X
___
(2) If securities are municipal securities,
the issue of securities has received an
investment grade rating from a nationally recognized statistical
rating organization or,
if the issuer or entity supplying the revenues from which the issue
is to be paid shall
have been in continuous operation for less than three years
(including any
predecessor), the issue has received one of the three highest
ratings from at least one
such rating organization.
N/A
___
f. The amount of such securities
purchased by all of the investment companies advised
by Mitchell Hutchins did not exceed 4% of the principal
amount of the offering or
$500,000 in principal amount, whichever is greater,
provided that in no event did such
amount exceed 10% of the principal amount of the offering.
X
___
g. The purchase price was less
than 3% of the Fund's total assets.
X
___
h. No Affiliated Underwriter was a direct or
indirect participant in or
beneficiary of the sale
or, with respect to municipal securities, no purchases were
designated as group sales
or otherwise allocated to the account of any Affiliated Underwriter.
X
___
Approved: Mark Tincher Date: 8/24/97<PAGE>
FORM 10f-3
FUND: PW Growth and Income
Record of Securities Purchased Under the Fund's Rule 10f-3 Procedures
1. Issuer: Steel Dynamics
2. Date of Purchase: 8/13/97
3. Date offering commenced: 8/13/97
4. Underwriters from whom purchased: Salomon Bros
5. "Affiliated Underwriter" managing or participating
in syndicate: PaineWebber
6. Aggregate principal amount of purchase: $250,000
7. Aggregate principal amount of offering: $210,000,000
8. Purchase price (net of fees and expenses): $25
9. Initial public offering price: $25
10. Commission, spread or profit: % $0.60
11. Have the following conditions been satisfied?
YES
NO
a. The securities are part of an issue registered under
the Securities Act of 1933 which is
being offered to the public or are "municipal securities" as
defined in Section
3(a)(29) of
the Securities Exchange Act of 1934.
X
___
b. The securities were purchased prior to the end
of the end first full business day of the
offering at not more than the initial offering price
(or, if a rights offering, , the securities
were purchased on or before the fourth day preceding the day
on which the offering
terminated.
X
___
c. The underwriting was a firm commitment underwriting.
X
___
d. The commission, spread or profit was
reasonable and fair in relation to that being
received by others for underwriting similar securities
during the same period.
X
___
e. (1) If securities are registered under the
Securities Act of 1933, the issuer of the
securities and its predecessor have been in continuous
operation for not less than three
years.
X
___
(2) If securities are municipal securities,
the issue of securities has received an
investment grade rating from a nationally recognized
statistical rating organization or,
if the issuer or entity supplying the
revenues from which the issue is to be paid shall
have been in continuous operation for less than
three years (including any
predecessor), the issue has received one of the
three highest ratings from at least one
such rating organization.
N/A
__
f. The amount of such securities
purchased by all of the investment companies advised
by Mitchell Hutchins did not exceed 4% of the principal
amount of the offering or
$500,000 in principal amount, whichever is greater,
provided that in no event did such
amount exceed 10% of the principal amount of the offering.
X
___
g. The purchase price was less than 3% of
the Fund's total assets.
X
___
h. No Affiliated Underwriter was a direct
or indirect participant in or beneficiary of the sale
or, with respect to municipal securities, no purchases were
designated as group sales
or otherwise allocated to the account of any Affiliated Underwriter.
X
___
Approved: Mark Tincher
Date: 9/14/97
FORM 10f-3 FUND: PW Growth and Income
1. Issuer: Security Capital
2. Date of Purchase: 9/18/97
3. Date offering commenced: 9/18/97
4. Underwriters from whom purchased: J.P. Morgan
5. "Affiliated Underwriter" managing or participating
in syndicate: PaineWebber
6. Aggregate principal amount of purchase: $588,000
7. Aggregate principal amount of offering: $422,800,000
8. Purchase price (net of fees and expenses): $28
9. Initial public offering price: $28
10. Commission, spread or profit: % $1.10
11. Have the following conditions been satisfied?
YES
NO
a. The securities are part of an issue
registered under the Securities Act of
1933 which is
being offered to the public or are
"municipal securities" as defined
in Section 3(a)(29) of
the Securities Exchange Act of 1934.
X
___
b. The securities were purchased prior to the end of the
end first full business day of the
offering at not more than the initial
offering price (or, if a rights offering, , the securities
were purchased on or before the fourth day preceding the
day on which the offering
terminated.
X
___
c. The underwriting was a firm commitment underwriting.
X
___
d. The commission, spread or profit was reasonable
and fair in relation to that being
received by others for underwriting similar securities during
the same period.
X
___
e. (1) If securities are registered under the
Securities Act of 1933, the issuer of the
securities and its predecessor have been in continuous operation
for not less than three
years.
X
___
(2) If securities are municipal securities,
the issue of
securities has received an
investment grade rating from a nationally recognized
statistical
rating organization or,
if the issuer or entity supplying the revenues from
which the issue
is to be paid shall
have been in continuous operation for less than three
years (including any
predecessor), the issue has received one of the three
highest ratings from
at least one
such rating organization.
N/A
___
f. The amount of such securities
purchased by all of the investment companies advised
by Mitchell Hutchins did not exceed 4% of the
principal amount of the offering or
$500,000 in principal amount, whichever is greater,
provided that in no event did such
amount exceed 10% of the principal amount of the offering.
X
___
g. The purchase price was less than 3% of the Fund's
total assets.
X
___
h. No Affiliated Underwriter was a direct or indirect
participant in or beneficiary of the sale
or, with respect to municipal securities, no purchases were
designated as group sales
or otherwise allocated to the account of any Affiliated Underwriter.
X
___
Approved: Mark Tincher Date: 9/27/97 <PAGE>
FORM 10f-3
FUND: PW Growth and Income
1. Issuer: Petersen Co.
2. Date of Purchase: 10/1/97
3. Date offering commenced: 10/1/97
4. Underwriters from whom purchased: Morgan Stanley
5. "Affiliated Underwriter" managing or participating
in syndicate: PaineWebber
6. Aggregate principal amount of purchase: $297,500
7. Aggregate principal amount of offering: $122,500,000
8. Purchase price (net of fees and expenses): $17.5
9. Initial public offering price: $17.5
10. Commission, spread or profit: % $0.72
11. Have the following conditions been satisfied?
YES
NO
a. The securities are part of an issue registered
under the Securities Act of 1933 which is
being offered to the public or are "municipal securities" as defined
in Section 3(a)(29) of
the Securities Exchange Act of 1934.
X
___
b. The securities were purchased prior to the end of
the end first full business day of the
offering at not more than the initial offering price
(or, if a rights offering, , the securities
were purchased on or before the fourth day preceding the
day on which the offering
terminated.
X
___
c. The underwriting was a firm commitment underwriting.
X
___
d. The commission, spread or profit was reasonable and
fair in relation to that being
received by others for underwriting similar securities during
the same period.
X
___
e. (1) If securities are registered under
the Securities Act of 1933, the issuer of the
securities and its predecessor have been in continuous operation for
not less than three
years.
X
___
(2) If securities are municipal securities,
the issue of securities has received an
investment grade rating from a nationally recognized statistical
rating organization or,
if the issuer or entity supplying the revenues from which the issue
is to be paid shall
have been in continuous operation for less than three years
(including any
predecessor), the issue has received one of the three
highest ratings from at least one
such rating organization.
N/A
___
f. The amount of such securities purchased by all of the
investment companies advised
by Mitchell Hutchins did not exceed 4% of the principal amount of
the offering or
$500,000 in principal amount, whichever is greater, provided that
in no event did such
amount exceed 10% of the principal amount of the offering.
X
___
g. The purchase price was less than 3% of the Fund's
total assets.
X
___
h. No Affiliated Underwriter was a direct or indirect
participant in or beneficiary of the sale
or, with respect to municipal securities, no purchases were
designated as group sales
or otherwise allocated to the account of any Affiliated
Underwriter.
X
___
Approved: Mark Tincher Date: 10/2/97
<PAGE>
FORM 10f-3 FUND: PW Growth and Income
1. Issuer: Sunstone Hotel.
2. Date of Purchase: 10/8/97
3. Date offering commenced: 10/8/97
4. Underwriters from whom purchased: Merrill Lynch
5. "Affiliated Underwriter" managing or participating
in syndicate: PaineWebber
6. Aggregate principal amount of purchase: $1,854,375
7. Aggregate principal amount of offering: $155,250,000
8. Purchase price (net of fees and expenses): $17.5
9. Initial public offering price: $17.5
10. Commission, spread or profit: % $0.51
11. Have the following conditions been satisfied?
YES
NO
a. The securities are part of an issue registered under
the Securities Act of 1933 which is
being offered to the public or are "municipal securities" as defined
in Section 3(a)(29) of
the Securities Exchange Act of 1934.
X
___
b. The securities were purchased prior
to the end of the end first full business day of the
offering at not more than the initial offering price (or, if
a rights offering, , the securities
were purchased on or before the fourth day preceding the day
on which the offering
terminated.
X
___
c. The underwriting was a firm commitment underwriting.
X
___
d. The commission, spread or profit was reasonable
and fair in relation to that being
received by others for underwriting similar securities during the
same period.
X
___
e. (1) If securities are registered under the
Securities Act of 1933, the issuer of the
securities and its predecessor have been in continuous
operation for not less than three
years.
X
___
(2) If securities are municipal securities, the issue
of securities has received an
investment grade rating from a nationally recognized statistical
rating organization or,
if the issuer or entity supplying the revenues from which the issue
is to be paid shall
have been in continuous operation for less than three years
(including any
predecessor), the issue has received one of the three highest ratings
from at least one
such rating organization.
N/A
___
f. The amount of
such securities purchased by all of the
investment companies advised
by Mitchell Hutchins did not exceed 4% of the principal
amount of the offering or
$500,000 in principal amount, whichever is greater,
provided that in no event did such
amount exceed 10% of the principal amount of the offering.
X
___
g. The purchase price was less than 3% of the
Fund's total assets.
X
___
h. No Affiliated Underwriter was a direct or indirect
participant in or beneficiary of the sale
or, with respect to municipal securities, no purchases
were designated as group sales
or otherwise allocated to the account of any Affiliated Underwriter.
X
___
Approved: Mark Tincher Date: 10/9/97
<PAGE>
FORM 10f-3 FUND: PW Growth and Income
Record of Securities Purchased Under the Fund's Rule 10f-3 Procedures
1. Issuer: Stoneridge
2. Date of Purchase: 10/9/97
3. Date offering commenced: 10/9/97
4. Underwriters from whom purchased: Morgan Stanley
5. "Affiliated Underwriter" managing or participating
in syndicate: PaineWebber
6. Aggregate principal amount of purchase: $577,500
7. Aggregate principal amount of offering: $102,375,000
8. Purchase price (net of fees and expenses): $17.5
9. Initial public offering price: $17.5
10. Commission, spread or profit:
% $.74
11. Have the following conditions been satisfied?
YES
NO
a. The securities are part of an issue registered
under the Securities Act of 1933 which is
being offered to the public or are "municipal securities"
as defined in Section 3(a)(29) of
the Securities Exchange Act of 1934.
X
___
b. The securities were purchased prior to the end
of the end first full business day of the
offering at not more than the initial offering price
(or, if a rights offering, , the securities
were purchased on or before the fourth day preceding
the day on which the offering
terminated.
X
___
c. The underwriting was a firm commitment underwriting.
X
___
d. The commission, spread or profit was
reasonable and fair in relation to that being
received by others for underwriting similar securities
during the same period.
X
___
e. (1) If securities are registered under the
Securities Act of 1933, the issuer of the
securities and its predecessor have been in continuous
operation for not less than three
years.
X
___
(2) If securities are municipal securities,
the issue of securities has received an
investment grade rating from a nationally recognized
statistical rating organization or,
if the issuer or entity supplying the
revenues from which the issue is to be paid shall
have been in continuous operation for less than
three years (including any
predecessor), the issue has received one of the three
highest ratings from at least one
such rating organization.
N/A
__
f. The amount of such securities purchased
by all of the investment companies advised
by Mitchell Hutchins did not exceed 4% of
the principal amount of the offering or
$500,000 in principal amount, whichever is greater,
provided that in no event did such
amount exceed 10% of the principal amount of the offering.
X
___
g. The purchase price was less than 3% of
the Fund's total assets.
X
___
h. No Affiliated Underwriter was a direct or
indirect participant in or beneficiary of the sale
or, with respect to municipal securities, no purchases were
designated as group sales
or otherwise allocated to the account of any Affiliated Underwriter.
X
___
Approved: Mark Tincher
Date: 10/10/97<PAGE>
FORM 10f-3
Registered Domestic Securities
FUND: PW Growth and Income Fund
1. Issuer: Varnado Realty
2. Date of Purchase: 10/21/97
3. Date offering commenced: 10/21/97
4. Underwriters from whom purchased: Merrill Lynch
5. "Affiliated Underwriter" managing or participating in syndicate:
PaineWebber
6. Aggregate principal amount of purchase: $1,912,000
7. Aggregate principal amount of offering: $450,000,000
8. Purchase price (net of fees and expenses): $45
9. Initial public offering price: $45
10. Commission, spread or profit: % $1.20
11. Have the following conditions been satisfied?
YES
NO
a. The securities are part of an issue registered
under the Securities Act of 1933
that is being offered to the public.
X
___
b. The securities were purchased prior to the end of the
end first day on which any
sales were made (or, if a rights offering, , the securities were
purchased on
or before the fourth day preceding the day on which the
offering terminated).
X
___
c. The securities were purchased at a price not more than
the price paid by
each other purchaser in the offering
X
___
d. The underwriting was a firm commitment underwriting.
X
___
e. The commission, spread or profit was reasonable
and fair in relation to that
being received by others for underwriting similar securities
during the same
period.
X
___
f. The issuer of the securities and any predecessor
have been in continuous
operation for not less than three years.
X
___
g. The amount of such securities purchased by all of
the investment companies
advised by Mitchell Hutchins (or the Fund s Sub-Adviser,
if applicable) did not
exceed 25% of the principal amount of the offering.
X
___
h. No Affiliated Underwriter was a direct or indirect participant
in or beneficiary of
the sale.
X
___
Note: Refer to the Rule 10f-3 Procedures for the definitions of the
capitalized terms above. In particular, "Affiliated
Underwriter" is defined as PaineWebber Group Inc.
and any of its affiliates, including PaienWebber incorporated. In
the case of a Fund advised by a Sub-Advisor, "Affiliated
Underwriter" shall also include any brokerage affiliate of the
Sub-Adviser.
Approved: Mark Tincher Date: 11/3/97 <PAGE>
FORM 10f-3
Registered Domestic Securities
FUND: PW Growth and Income Fund
1. Issuer: Mettler Toledo
2. Date of Purchase: 11/13/97
3. Date offering commenced: 11/13/97
4. Underwriters from whom purchased: Merrill Lynch
5. "Affiliated Underwriter" managing or participating in syndicate:
PaineWebber
6. Aggregate principal amount of purchase: $1,953,000
7. Aggregate principal amount of offering: $93,324,000
8. Purchase price (net of fees and expenses): $14
9. Initial public offering price: $14
10. Commission, spread or profit: % $.55
11. Have the following conditions been satisfied?
YES
NO
a. The securities are part of an issue
registered under the Securities Act of 1933
that is being offered to the public.
X
___
b. The securities were purchased
prior to the end of the end first day on which any
sales were made (or, if a rights offering, , the
securities were purchased on
or before the fourth day preceding the day on which the
offering terminated).
X
___
c. The securities were purchased at a price not
more than the price paid by
each other purchaser in the offering
X
___
d. The underwriting was a firm commitment underwriting.
X
___
e. The commission, spread or profit was reasonable and
fair in relation to that
being received by others for underwriting similar securities
during the same
period.
X
___
f. The issuer of the securities and any predecessor have
been in continuous
operation for not less than three years.
X
___
g. The amount of such securities purchased by all of
the investment companies
advised by Mitchell Hutchins (or the Fund s Sub-Adviser,
if applicable) did not
exceed 25% of the principal amount of the offering.
X
___
h. No Affiliated Underwriter was a direct or indirect participant
in or beneficiary of
the sale.
X
___
Note: Refer to the Rule 10f-3 Procedures for the definitions of the
capitalized terms above. In particular, "Affiliated
Underwriter" is defined as PaineWebber Group Inc. and any of its
affiliates, including PaienWebber incorporated. In
the case of a Fund advised by a Sub-Advisor, "Affiliated
Underwriter" shall also include any brokerage affiliate of the
Sub-Adviser.
Approved: Mark Tincher
Date: 11/17/96<PAGE>
FORM 10f-3
Registered Domestic Securities
FUND: PW Growth and Income Fund
1. Issuer: Virgin Express
2. Date of Purchase: 11/13/97
3. Date offering commenced: 11/13/97
4. Underwriters from whom purchased: Merrill Lynch
5. "Affiliated Underwriter" managing or participating in syndicate:
PaineWebber
6. Aggregate principal amount of purchase: $37,500
7. Aggregate principal amount of offering: $96,300,000
8. Purchase price (net of fees and expenses): $15
9. Initial public offering price: $15
10. Commission, spread or profit: % $0.54
11. Have the following conditions been satisfied?
YES
NO
a. The securities are part of an issue registered under
the Securities Act of 1933
that is being offered to the public.
X
___
b. The securities were purchased prior to the end of the end
first day on which any
sales were made (or, if a rights offering, , the securities were
purchased on
or before the fourth day preceding the day on which the offering
terminated).
X
___
c. The securities were purchased at a price not more
than the price paid by
each other purchaser in the offering
X
___
d. The underwriting was a firm commitment underwriting.
X
___
e. The commission, spread or profit was reasonable and
fair in relation to that
being received by others for underwriting similar securities
during the same
period.
X
___
f. The issuer of the securities and any predecessor
have been in continuous
operation for not less than three years.
X
___
g. The amount of such securities purchased by all of the
investment companies
advised by Mitchell Hutchins (or the Fund s
Sub-Adviser, if applicable) did not
exceed 25% of the principal amount of the offering.
X
___
h. No Affiliated Underwriter was a direct or indirect
participant in or beneficiary of
the sale.
X
___
Note: Refer to the Rule 10f-3 Procedures for the definitions
of the capitalized terms above. In particular, "Affiliated
Underwriter" is defined as PaineWebber Group Inc. and any
of its affiliates, including PaienWebber incorporated. In
the case of a Fund advised by a Sub-Advisor, "Affiliated
Underwriter" shall also include any brokerage affiliate of the
Sub-Adviser.
Approved: Mark Tincher
Date: <PAGE>
PAINEWEBBER AMERICA FUND
AMENDED AND RESTATED DECLARATION OF TRUST
DECLARATION OF TRUST, made at Boston, Massachusetts, this 31st day of
October 1986 and amended and restated this 19th day of
November, 1997 by the Trustees:
WHEREAS, the Trustees desire to
establish a trust fund for the investment
and reinvestment of funds contributed thereto;
NOW, THEREFORE, the Trustees declare that all money
and property contributed to the trust fund hereunder
shall be held and
managed in trust under this Declaration of
Trust as herein set forth below.
ARTICLE I
NAME AND DEFINITIONS
NAME
Section 1. This Trust shall be known as "PaineWebber
America Fund." The resident agent for the Trust in
Massachusetts shall
be CT Corporation System, whose address is 2 Oliver Street,
Boston, Massachusetts, or such other person as the Trustees
may from time
to time designate.
DEFINITIONS
Section 2. Wherever used herein, unless otherwise
required by the context or specifically provided:
(a) The Terms "Affiliated Person", "Assignment",
"Commission", "Interested Person", "Majority
Shareholder Vote" (the
67% or 50% requirement of the third sentence
of Section 2(a)(42) of the 1940 Act, whichever
may be applicable) and "Principal
Underwriter" shall have the meanings given
them in the 1940 Act, as amended from time to time;
(b) The "Trust" refers to PaineWebber America
Fund and reference to the Trust, when applicable
to one or more Series
of the Trust, shall refer to any such Series;
(c) "Net Asset Value" means the net asset value of
each Series of the Trust determined in the manner
provided in Article
IX, Section 3;
(d) "Shareholder" means a record owner of Shares of the Trust;
(e) The "Trustees" means the person who has signed this
Declaration of Trust so long as he 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 of Article IV
hereof, and reference herein to a Trustee or the Trustees
shall refer to such person
or persons in his capacity or their capacities as trustees hereunder.
(f) "Shares" means the equal proportionate transferable
units of interest into which the beneficial interest of each Series
or Class thereof shall be divided from time to time and includes
fractions of shares as well as whole shares (all of the
transferable units
of a Series or of a single Class may be referred to as
"Shares" as the context may require);
(g) The "1940 Act" refers to the
Investment Company Act of 1940, as amended from time to time;
(h) "Series" refers to series of Shares of the
Trust established in accordance with the provisions of Article III;
(i) "Class" refers to the class of Shares of a Series of the
Trust established in accordance with the Provisions of Article III.
ARTICLE II
PURPOSE OF TRUST
The purpose of this Trust is to provide investors a continuous
source of managed investment in securities.
ARTICLE III
BENEFICIAL INTEREST
SHARES OF BENEFICIAL INTEREST
Section 1. The beneficial interest in the Trust
shall be divided into such transferable Shares of one or
more separate and distinct
Series or Classes thereof as the
Trustees shall from time to time create and establish.
The number of Shares is unlimited and each Share
shall have a par value of $0.001 per Share and upon
issuance in accordance with the terms hereof shall
be fully paid and nonassessable.
The Trustees shall have full power and authority,
in their sole discretion and without obtaining any
prior authorization or vote of the
Shareholders of the Trust, to create and establish
(and to change in any manner) Shares with such
preferences, terms of conversion, voting
powers, rights and privileges as the Trustees
may from time to time determine, to divide or
combine the Shares into a greater or lesser
number, to classify or reclassify any unissued
Shares into one or more Series or Classes of Shares,
to abolish any 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 Trustees, in their
discretion without a vote of the Shareholders,
may divide the Shares of any Series into Classes.
In such event, each Class of a Series shall
represent interests in the assets of that Series
and have identical voting, dividend, liquidation and
other rights and the same terms and
conditions, except that expenses allocated
yo a Class of a Series may be borne solely
by such Class as shall be determined by the Trustees
and a Class of a Series may have exclusive
voting rights with respect to matters affecting
only that Class. Without limiting the authority
of the Trustees set forth in this Section 1 to
establish and designate any further Series or
Classes, the Trustees have established and
designated the Series of Shares and Classes
listed in Schedule A attached hereto and made a part hereof.
ESTABLISHMENT OF SERIES OR CLASS
Section 2. The establishment of
any Series or Class in addition to those set forth
in Section 1 shall be effective upon the adoption
of a resolution by a majority of the then Trustees setting
forth such establishment and designation and the relative
rights and preferences
of the Shares of such Series or Class thereof.
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. At any
time that there are no shares outstanding
of any particular Class of a Series, the Trustees
may by a majority vote abolish that Class and the
establishment and designation thereof. The Trustees
by a majority vote may change the name of any Series or Class.
OWNERSHIP OF SHARES
Section 3. The ownership of Shares shall be
recorded in the books of the Trust. The Trustees may
make such rules as they
consider appropriate for the transfer of Shares and similar matters.
The record books of the Trust shall be conclusive as to who are the
holders of Shares and as to the number of Shares held from time to
time by each Shareholder.
INVESTMENT IN THE TRUST
Section 4. The Trustees shall accept investments in the Trust
from such persons and on such terms as they may from time to time
authorize. Such investments may be in the form of cash or securities
in which the appropriate Series is authorized to invest, valued as
provided in Article IX, Section 3. After the date of the initial
contribution of capital, the number of Shares to represent the initial
contribution may in the Trustees' discretion be considered as
outstanding and the amount received by the Trustees on account of the
contribution shall be treated as an asset of the Trust or a Series
thereof, as appropriate. Subsequent investments in the Trust 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) impose a sales charge upon investments in the
Trust or
Series and (b) issue fractional Shares. The Trustees shall have
the right to refuse to accept investments in the Trust or any Series
at any
time without any cause or reason therefor whatsoever.
ASSETS AND LIABILITIES OF SERIES
Section 5. 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 referred to as
"assets belonging to" that Series. In addition, any assets, income,
earnings, profits,
and proceeds thereof, funds, or payments 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 they, 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 shall be
referred to as 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
except that liabilities and expenses
allocated solely to a particular Class shall be borne by that
Class. Any general liabilities, expenses, costs, charges
or reserves of the Trust
or Series which are not readily identifiable as belonging
to any particular Series or Class shall be allocated and
charged by the Trustees
between or among any one or more of the Series or Classes
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 or Classes for all purposes.
Any creditor of any
Series may look only to the assets of that Series to
satisfy such creditor's debt. See Article X, Section 1.
NO PREEMPTIVE RIGHTS
Section 6. Shareholders shall have no preemptive
or other right to subscribe to any additional Shares
or other securities issued
by the Trust or the Trustees.
STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY
Section 7. Shares shall be deemed to be personal
property giving only the rights provided in this
Declaration of Trust. Every
Shareholder by virtue of having become a Shareholder
shall be held expressly to have assented and agreed
to the terms of this Declaration
of Trust and to have become a party hereto.
The death of a Shareholder during the continuance of
the Trust shall not operate to terminate
the Trust nor entitle the representative of any deceased
Shareholder to an accounting or to take any action in court
or elsewhere against
the Trust or the Trustees, but only to the rights of said
decedent under this Trust. Ownership of Shares shall not
entitle the Shareholder
to any title in or to the whole or any part of the Trust
property or right to call for a partition or division of the
same or for an accounting,
nor shall the ownership of Shares constitute the Shareholders
partners. Neither the Trust nor the Trustees shall have any
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.
ARTICLE IV
THE TRUSTEES
MANAGEMENT OF THE TRUST
Section 1. The business and affairs of the Trust shall
be managed by the Trustees, and they shall have all powers
necessary and
desirable to carry out that responsibility.
A Trustee shall not be required to be a Shareholder of the Trust.
ELECTION OF TRUSTEES AND APPOINTMENT OF INITIAL TRUSTEE
Section 2. On a date fixed by the Trustees, the Shareholders
shall elect the Trustees. Until such election, the Trustees
shall be
the initial Trustee and such other persons as may be hereafter
appointed pursuant to Section 4 of this Article IV. The initial
Trustee shall
be Dianne E. O Donnell.
TERM OF OFFICE OF TRUSTEES
Section 3. The Trustees shall hold office during the
lifetime of this Trust, and until its termination as
hereinafter provided; except
(a) that any Trustee may resign his trust by written instrument
signed by him and delivered to the other Trustees or to any officer of the
Trust, which shall take effect upon such delivery or upon such later
date as is specified therein; (b) that any Trustee may be removed with
or without cause 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 become
incapacitated by illness or injury may be retired by written
instrument signed by a majority of other Trustees, specifying
the date of his
retirement; and (d) that any Trustee may be removed at any Special
Meeting of the Trust by a vote of at least two-thirds of the outstanding
Shares.
RESIGNATION AND APPOINTMENT OF TRUSTEES
Section 4. In case of the declination, death, resignation,
retirement, removal, incapacity, or inability of any of
the Trustees, or
in case a vacancy shall exist by reason of an increase in number or
for any other reason, the remaining Trustees shall fill such vacancy by
appointment of 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 a recording in the records of
the Trust, whereupon the appointment shall take effect. An appointment
of a Trustee may be made by the Trustees then in office as
aforesaid 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 so appointed
shall have accepted this trust, 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 of appointment is subject to the provisions of Section
16(a) of the 1940 Act.
TEMPORARY ABSENCE OF TRUSTEE
Section 5. 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 6. The number of Trustees shall initially be
one (1) and thereafter shall be such number as shall
be fixed from time to
time by a written instrument signed by a majority of the Trustees
(or by an officer of the Trust pursuant to a vote of
the majority of such
Trustees); provided, however, that the number of Trustees serving
hereunder at any time shall in no event be less than one (1) nor more
than fifteen (15).
Whenever a vacancy in the Board of Trustees shall occur, until
such vacancy is filled, or while any Trustee is absent from his state
of domicile (unless said Trustee has made arrangements to be
informed about, and to participate in, the affairs of the Trust during such
absence), or is physically or mentally incapacitated by reason of disease
or otherwise, the other Trustees shall have all the powers hereunder
and the certificate of the other Trustees of such vacancy, absence
or incapacity, shall be conclusive.
EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE
Section 7. The death, declination, resignation,
retirement, removal, incapacity, or inability of the Trustee,
or any one of them,
shall not operate to annul the Trust or to revoke any existing
agency created pursuant to the terms of this Declaration of Trust.
OWNERSHIP OF ASSETS OF THE TRUST
Section 8. The assets of the Trust 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.
All of the assets of the Trust shall at all times be considered as vested
in the Trustees.
ARTICLE V
POWERS OF THE TRUSTEES
POWERS
Section 1. 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 uncontrolled discretion, shall deem
proper to accomplish the purposes of this Trust. Subject to any
applicable limitation in this Declaration of Trust or the By-Laws
of the Trust, the Trustees shall have power and authority, without
limitation:
(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; to purchase and sell (or write) options on securities,
currencies,
indices, futures contracts and other financial instruments and
enter into closing transactions in connection therewith; to
enter into all types
of commodities contracts, including without limitation the purchase
and sale of futures contracts and forward contracts on securities,
indices, currencies, and other financial instruments; to engage in
forward commitment, "when issued" and delayed delivery transactions;
to enter into repurchase agreements and reverse repurchase agreements;
and to employ all kinds of hedging techniques and investment
management strategies.
(b) To adopt By-Laws not inconsistent with this Declaration
of Trust providing for the conduct of the business of the Trust
and to amend and repeal them to the extent that they do not reserve
the right to the Shareholders.
(c) To elect and remove such officers and appoint and
terminate such agents as they consider appropriate.
(d) To employ as custodian of any assets of the Trust
subject to any conditions set forth in this Declaration of
Trust or in
the By-Laws, if any, a bank, trust company, or other entity permitted
by the Commission to serve as such.
(e) To retain a transfer agent and Shareholder servicing
agent, or both.
(f) 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.
(g) To set record dates in the manner hereinafter provided for.
(h) To delegate such authority as they consider desirable to any
officers of the Trust and to any agent, independent contractor,
custodian or underwriter.
(i) To sell or exchange any or all of the assets of the Trust,
subject to the provisions of Article XI, Section 4(b) hereof.
(j) 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.
(k) To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of
securities.
(l) To hold any security or property in a form not indicating
any trust, whether in bearer, unregistered or other negotiable
form; or either in its own name 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 Massachusetts
trust companies or investment companies.
(m) To establish separate and distinct Series with separately
defined investment objectives and policies and distinct
investment purposes in accordance with the provisions of Article
III and to establish separate Classes thereof.
(n) To allocate assets, liabilities and expenses of the
Trust to a particular Series and liabilities and expenses
to a particular
Class thereof or to apportion the same between or among two or
more Series or Classes, provided that any liabilities or expenses
incurred
by a particular Series or Class shall be payable solely out of the
assets belonging to that Series or Class as provided for in Article III.
(o) 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.
(p) 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.
(q) To make distributions of income and of capital gains to
Shareholders in the manner hereinafter provided for.
(r) To borrow money.
(s) To establish, from time to time, a minimum total investment
for Shareholders, and to require the redemption of the
Shares of any Shareholders whose investment is less than such minimum
upon giving notice to such Shareholder.
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.
TRUSTEES AND OFFICERS AS SHAREHOLDERS
Section 2. Any Trustee, officer, other agent or independent
contractor of the Trust may acquire, own and dispose of Shares to
the same extent as if he were not a Trustee, officer, agent or
independent contractor; 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 By-Laws.
ACTION BY THE TRUSTEES
Section 3. The Trustees shall act by majority vote at a meeting
duly called or by unanimous written consent without a meeting
or by telephone consent provided a quorum of Trustees participate
in any such telephonic meeting, unless the 1940 Act requires that a
particular action be taken only at a meeting in person of the
Trustees. 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 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 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 either
before or after such meeting. Subject to the requirements of the 1940
Act, the Trustees by majority vote may delegate to any one of their
number their authority to approve particular matters or take
particular actions on behalf of the Trust.
CHAIRMAN OF THE TRUSTEES
Section 4. The Trustees may 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 the chief executive, financial and/or accounting
officer of the Trust.
ARTICLE VI
EXPENSES OF THE TRUST
TRUSTEE REIMBURSEMENT
Section 1. Subject to the provisions of Article III, Section 5,
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 distributing its Shares and providing
services to Shareholders, expenses of registering and qualifying the Trust
and its Shares under Federal and State laws and regulations, charges of
investment advisers, administrators, custodians, transfer agents,
and registrars, expenses of preparing and setting in type prospectuses
and statements of additional information, expenses of printing and
distributing prospectuses and statements of additional information
sent to existing Shareholders, auditing and legal expenses, reports to
Shareholders, expenses of meetings of Shareholders and proxy
solicitations therefor, insurance expense, association membership dues and
for such non-recurring items as may arise, including litigation to which
the Trust is a party (except those losses and expenses the
indemnification of which is not permitted under Article X
hereof), 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 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 VII
INVESTMENT ADVISER, PRINCIPAL UNDERWRITER AND TRANSFER AGENT
INVESTMENT ADVISER
Section 1. Subject to a Majority Shareholder Vote, the
Trustees may in their discretion from time to time enter
into an investment
advisory or management contract(s) with respect to the Trust or
any Series thereof whereby the other party(ies) to such contract(s) shall
undertake to furnish the Trustees 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.
Notwithstanding
any provisions of this Declaration of Trust, the Trustees may
authorize the investment adviser(s) (subject to such general
or specific
instruments as the Trustees may from time to time adopt) to
effect purchases, sales or exchanges of portfolio securities
and other investment
instruments of the Trust 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, subject to applicable requirements of
the 1940 Act, including those relating to Shareholder
approval, authorize
the investment adviser to employ one or more sub-advisers
from time to time 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.
PRINCIPAL UNDERWRITER
Section 2. The Trustees may in their discretion from time
to time enter into one or more contract(s) providing for the
sale of the
Shares, whereby the Trust may either agree to sell the 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 as may be prescribed in the By-Laws,
if any, and such
further terms and conditions as the Trustees may in their
discretion determine not inconsistent with the provisions
of this Article VII, or
of the By-Laws, if any; 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. The Trustees may in their discretion adopt a
plan or plans of distribution and enter into any related
agreements whereby the
Trust finances directly or indirectly any activity that
is primarily intended to result in sales of Shares. Such
plan or plans of distribution
and any related agreements may contain such terms and
conditions as the Trustees may in their discretion determine
subject to the
requirements of Section 12 of the 1940 Act, Rule 12b-1 thereunder
and any other applicable rules and regulations.
TRANSFER AGENT
Section 3. The Trustees may in their discretion from
time to time enter into a transfer agency and Shareholder
service contract
whereby the other party shall undertake to furnish the Trustees
and Trust with transfer agency and shareholder services. The
contract shall
be on such terms and conditions as the Trustees may in their
discretion determine not inconsistent with the provisions of
this Declaration
of Trust or of the By-Laws, if any. Such services may be
provided by one or more entities, including one or more agents
of such other party.
PARTIES TO CONTRACT
Section 4. Any contract of the character described in
Sections 1, 2 and 3 of this Article VII or that relates
to the provision of
custodian services to the Trust may be entered into with any
corporation, firm, partnership, trust or association, although
one 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 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 reasonable and fair
and not inconsistent with the provisions of this Article VII or the
By-Laws, if any. The same person (including a firm, corporation,
partnership, trust, or association) may be the other party to
contracts entered into pursuant to Sections 1, 2 and 3 above or
with respect
to the provision of custodian services to the Trust, and any
individual may be financially interested in or otherwise
affiliated with persons
who are parties to any or all of the contracts mentioned
in this Section 4.
PROVISIONS AND AMENDMENTS
Section 5. Any contract entered into pursuant to
Sections 1 and 2 of this Article VII shall be consistent
with and subject to the
applicable requirements of Sections 12 and 15 of the 1940 Act
and the rules and orders thereunder (including any amendments
thereto
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.
ARTICLE VIII
SHAREHOLDERS' VOTING POWERS AND MEETINGS
VOTING POWERS
Section 1. The Shareholders shall have power to vote
(i) for the election of Trustees as provided in Article
IV, Section 2, (ii)
for the removal of Trustees as provided in Article IV,
Section 3(d), (iii) with respect to any investment advisory
or management contract
as provided in Article VII, Section 1, (iv) with respect to
any termination or reorganization of the Trust as provided
in Article XI, Section
4, (v) with respect to the amendment of this Declaration of
Trust to the extent and as provided in Article XI, Section 7,
(vi) to the same
extent as the shareholders of a Massachusetts business corporation,
as to whether or not a court action, proceeding or claim should be
brought or maintained derivatively or as a class action on behalf
of the Trust or the Shareholders, provided, however, that a Shareholder
of a particular Series shall not be entitled to bring any derivative or
class action on behalf of any other Series of the Trust, and provided
further that, within a Series, a Shareholder of a particular Class
shall not be entitled to bring any derivative or class action on
behalf of any
other Class except with respect to matters sharing a common fact
pattern with said Shareholder's own Class; and (vii) with respect
to such
additional matters relating to the Trust as may be required or
authorized by law, by this Declaration of Trust, or the By-Laws
of the Trust,
if any, 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
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 only the
interests of one or more Classes, then only the Shareholders of such
Class or Classes shall be entitled to vote thereon. 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. There shall be no cumulative voting in the election
of Trustees. Shares may be voted in person or by proxy. Until Shares
are issued, the Trustees may exercise all rights of Shareholders and
may take any action required or permitted by law, this Declaration of
Trust or any By-Laws of the Trust to be taken by Shareholders.
MEETINGS
Section 2. The first Shareholders' meeting shall be held
as specified in Section 2 of Article IV at the principal
office of the Trust
or such other place as the Trustees may designate. Special
meetings of the Shareholders or any Series or Class thereof
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) and any rules or orders
thereunder 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. Shareholders shall be
entitled to at least fifteen days' notice of any meeting.
QUORUM AND REQUIRED VOTE
Section 3. A majority 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 Declaration of Trust permits or requires that
holders of any Series
or Class thereof shall vote as a Series or Class, then a
majority of the aggregate number of Shares of that Series
or Class thereof entitled
to vote shall be necessary to constitute a quorum for the
transaction of business by that Series or 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 any provision of this Declaration of
Trust or the
By-Laws, 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 Declaration of Trust permits or
requires that the holders of any Series or Class shall vote as a
Series or Class, then a majority of the Shares of that Series or
Class voted on the matter shall decide that matter insofar as that
Series or
Class is concerned.
ARTICLE IX
DISTRIBUTIONS AND REDEMPTIONS
DISTRIBUTIONS
Section 1.
(a) The Trustees may from time to time declare and pay
dividends and other distributions. The amount of such dividends
and the payment of them shall be wholly in the discretion of the Trustees.
(b) The Trustees shall have power, to the fullest extent permitted
by the laws of the Commonwealth of Massachusetts, at
any time to declare and cause to be paid dividends on Shares of
a particular Series, from the assets belonging to that Series, which
dividends and other distributions, at the election of the Trustees,
may be paid daily or otherwise pursuant to a standing resolution or
resolutions adopted only once or with such frequency as the Trustees
may determine, and may be payable in Shares of that Series or Class
thereof, as appropriate, at the election of each Shareholder of that
Series or Class. All dividends and distributions on Shares of a
particular
Series shall be distributed pro rata to the holders of that Series
in proportion to the number of Shares of that Series held by such
holders
at the date and time of record established for the payment of such
dividends or distributions, except that such dividends and distributions
shall appropriately reflect expenses allocated to a particular Class of
such Series.
(c) Anything in this instrument to the contrary notwithstanding,
the Trustees may at any time declare and distribute a "stock
dividend" pro rata among the Shareholders of a particular Series
or of a Class thereof as of the record date of that Series (fixed
as provided
in Section 3 of Article XI hereof).
REDEMPTIONS
Section 2. In case any holder of record of Shares of a particular
Series or Class desires to dispose of his Shares, 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 2; 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 of the Series or Class held
by the Shareholder (as described in Section 3 hereof) minus any
applicable sales charge or redemption or repurchase fee. 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 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; provided, however, that
if Shares being redeemed have been purchased by check, the Trust
may postpone payment until the Trust has assurance that good payment
has been collected for the purchase of the Shares. The Trust may
require Shareholders to pay a sales charge to the Trust, the underwriter
or any other person designated by the Trustees upon redemption or
repurchase of Shares of any Series or Class thereof, in such amount
as shall be determined from time to time by the Trustees. The
amount of such sales charge may but need not vary depending on various
factors, including without limitation the holding period of the
redeemed or repurchased Shares. The Trustees may also charge a redemption
or repurchase fee in such amount as may be determined from time to
time by the Trustees.
DETERMINATION OF NET ASSET VALUE AND VALUATION OF PORTFOLIO ASSETS
Section 3. 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. Net Asset Value per Share shall be determined separately
for each
Series of Shares and shall be determined on such days and at such
times as the Trustees may determine. Such determination may be made
on a Series-by-Series or Class-by-Class basis, as appropriate, and
shall include any expenses allocated to a specific Series or Class. The
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 appraising 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 3
with respect
to appraisal of assets and liabilities. At any time the
Trustees may cause the Net Asset Value per Share last
determined to be determined
again in a similar manner and may fix the time when such
redetermined values shall become effective.
SUSPENSION OF THE RIGHT OF REDEMPTION
Section 4. Notwithstanding Section 2 hereof, 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 existing after
the termination of the suspension.
ARTICLE X
LIMITATION OF LIABILITY AND INDEMNIFICATION
LIMITATION OF LIABILITY
Section 1. All persons extending credit to, contracting with
or having any claim against the Trust or a particular Series
shall look
only to the assets of the Trust or such Series, as the case may be,
for payment under such credit, contract or claim; and neither the
Shareholders nor the Trustees, nor any of the Trust's officers,
employees or agents, whether past, present or future, nor any
other Series
shall be personally liable therefor.
Every note, bond, contract, instrument, certificate or
undertaking and every other act or thing whatsoever executed
or done by
or on behalf of the Trust, any Series, or the Trustees or any of
them in connection with the Trust shall be conclusively deemed to
have been
executed or done only in or with respect to their or his capacity
as Trustees or Trustee and neither such Trustees or Trustee nor the
Shareholders shall be personally liable thereon. Every note, bond,
contract, instrument, certificate or undertaking made or issued by the
Trustees or by any officers or officer shall give notice that the same
was executed or made by them on behalf of the Trust or by them as
Trustees or Trustee or as officers or officer and not individually
and that the obligations of such instrument are not binding upon any of
them or the Shareholders individually but are binding only upon the
assets and property of the Trust or the particular Series in question,
as the case may be, but the omission thereof shall not operate to bind
any Trustees or Trustee or officers or officer or Shareholders or
Shareholder individually.
Section 2. Provided they have exercised reasonable care and
have acted under the reasonable belief that their actions are in the
best interest of the Trust, the Trustees and officers of the Trust
shall not be responsible for or liable in any event for neglect or
wrongdoing
of them or any officer, agent, employee, investment adviser or
independent contractor of the Trust, but nothing contained in
this Declaration
of Trust shall protect any Trustee or officer against any
liability 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 his office.
INDEMNIFICATION
Section 3.
(a) Subject to the exceptions and limitations contained
in Section 3(b) below:
(i) every person who is, or has been a Trustee or
officer of the Trust (hereinafter referred to as
"Covered Person")
shall be indemnified by the appropriate Series 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 such Trustee or officer 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 Trustees
and officers,
and other persons may be entitled to 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 3
may be paid by the applicable 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
applicable
Series if it is ultimately determined that he is not entitled to
indemnification under this Section 3; 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 not be
disqualified from indemnification
under this Section 3.
SHAREHOLDERS
Section 4. In case any Shareholder or former Shareholder
if any Series of the Trust shall be held to be personally
liable solely
by reason of his being or having been a Shareholder 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 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.
ARTICLE XI
MISCELLANEOUS
TRUST NOT A PARTNERSHIP
Section 1. It is hereby expressly declared that a trust
and not a partnership is created hereby. No Trustee hereunder
shall have
any power to bind personally either the Trust's officers or any
Shareholder.
TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY
Section 2. The exercise by the Trustees of their powers
and discretion 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, the Trustees
shall
not be liable for errors of judgment or mistakes of fact or law.
The Trustees may take advice of counsel or other experts with
respect to
the meaning and operation of this Declaration of Trust, and
subject to the provisions of Article X, shall be under no
liability for any act
or omission in accordance with such advice or for failing
to follow such advice. The Trustees shall not be required
to give any bond as
such, nor any surety if a bond is obtained.
ESTABLISHMENT OF RECORD DATES
Section 3. The Trustees may close the stock transfer books
if 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 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 ninety (90) days preceding the
date of any meeting of Shareholders, or the date for payment of
any dividend, 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 to receive payment of
such dividend, or to receive such allotment or rights, or to exercise
such 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 to receive such allotment of 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 or aforesaid.
TERMINATION OF TRUST
Section 4.
(a) This Trust shall continue without limitation of time but
subject to the provisions of sub-section (b) of this Section 4.
(b) Subject to a Majority Shareholder Vote of each Series affected
by the matter or, if applicable, to a Majority Shareholder
Vote of the Trust, the Trustees may
(i) sell, convey, merge and transfer all or substantially
all of the assets of the Trust or any affected Series to
another
Series or to a trust, partnership, association or corporation
organized under the laws of any state which is an investment
company as defined
in the 1940 Act, 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 or stock of such
Series, trust,
partnership, association or corporation; or
(ii) at any time sell and convert into money all or
substantially all of the assets of the Trust or any
affected Series.
Upon making provision for the payment of all known liabilities
of the Trust or any affected Series in either (i) or (ii),
by such
assumption or otherwise, the Trustees shall distribute the remaining
proceeds or assets (as the case may be) ratably among the holders of
the Shares of the Trust or any affected Series then outstanding;
however, the payment to any particular Class within such Series may be
reduced by any fees, expenses or charges allocated to that Class.
Nothing in this Declaration of Trust shall preclude the Trustees from
distributing such remaining proceeds or assets so that holders of the
Shares of a particular Class of the Trust or any affected Series receive
as their ratable distribution shares solely of an analogous class, as
determined by the Trustees, of such trust, partnership, association or
corporation.
The Trustees may take any of the actions specified in clauses (i)
and (ii) above without obtaining a Majority Shareholder Vote
of any Series or the Trust if a majority of the Trustees makes a
determination that the continuation of a Series or the Trust is not
in the best
interests of such Series, the Trust or their respective Shareholders
as a result of factors or events adversely affecting the ability of such
Series or the Trust to conduct its business and operations in an
economically viable manner. Such factors and events may include the
inability of a Series or the Trust to maintain its assets at an
appropriate size, changes in laws or regulations governing the Series
or Trust
or affecting assets of the type in which such Series or the Trust
invests or economic developments or trends having a significant
adverse
impact on the business or operations of such Series or the Trust.
(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
shall be discharged of any and all further liabilities and duties
hereunder
with respect thereto and the right, title and interest of all
parties therein shall be canceled and discharged.
FILING OF COPIES, REFERENCES, HEADINGS
Section 5. The original or a copy of this instrument and
of each amendment hereto shall be kept at the office of the
Trust where
it may be inspected by any shareholder. A copy of this instrument
and of each amendment hereto shall be filed by the Trustees with the
Secretary of the Commonwealth of Massachusetts and the Boston City
Clerk, as well as any other governmental office where such filing
may from time to time be required. Anyone dealing with the Trust
may rely on a certificate by an officer or Trustee of the Trust as to
whether or not any such amendments to this Declaration of Trust 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 instrument or of any such amendments. In this instrument
or in any such amendments, references to this instrument, and all
expressions like "herein," "hereof" and "hereunder," shall be
deemed to refer to this instrument as amended from time to time. The
masculine gender shall include the feminine and neuter genders.
Headings are placed herein for convenience of reference only, and in case
of any conflict, the text of this instrument, rather than the headings,
shall control. This instrument may be executed in any number of
counterparts each of which shall be deemed an original.
APPLICABLE LAW
Section 6. The Trust set forth in this instrument is made
in the Commonwealth of Massachusetts, and it is created under and is
to be governed by and construed and administered according to the laws of
said Commonwealth. The Trust shall be of the type commonly
called a Massachusetts business trust, and, without limiting
the provisions hereof, the Trust may exercise all powers which
are ordinarily
exercised by such a trust.
AMENDMENTS
Section 7. All rights granted to the Shareholders under
this Declaration of Trust are granted subject to the reservation
of the right
to amend this Declaration of Trust as herein provided, except that no
amendment shall repeal the limitations on personal liability of any
Shareholder or Trustee or repeal the prohibition of assessment upon
the Shareholders without the express consent of each Shareholder
or Trustee involved. Subject to the foregoing, the provisions of
this Declaration of Trust (whether or not related to the rights of
Shareholders) may be amended at any time, so long as such amendment
does not adversely affect the rights of any Shareholder with respect
to which such amendment is or purports to be applicable and so long
as such amendment is not in contravention of applicable law,
including the 1940 Act, by an instrument in writing signed by
a majority of the then Trustees (or by an officer of the Trust
pursuant to the
vote of a majority of such Trustees). Except as provided in the
first sentence of this Section 7, any amendment to this Declaration
of Trust
that adversely affects the rights of Shareholders may be adopted at
any time by an instrument signed in writing by a majority of the then
Trustees (or by an officer of the Trust pursuant to the vote of a
majority of such Trustees) when authorized to do so by Majority Shareholder
Vote; provided, however, that an amendment that shall affect the
Shareholders of one or more Series (or of one or more Classes), but not
the Shareholders of all outstanding Series (or Classes), shall be
authorized by a Majority Shareholder Vote of each Series (or Class, as
the case may be) affected, and no vote of a Series (or Class) not
affected shall be required. Subject to the foregoing, any such
amendment
shall be effective as provided in the instrument containing the
terms of such amendment or, if there is no provision therein with
respect
to effectiveness, upon the execution of such instrument and of a
certificate (which may be a part of such instrument) executed by
a Trustee
or officer to the effect that such amendment has been duly adopted.
Copies of the amendment to this Declaration of Trust shall be filed
as specified in Section 5 of this Article XI. A restated Declaration
of Trust, integrating into a single instrument all of the provisions of
the Declaration of Trust which are then in effect and operative, may be
executed from time to time by a majority of the Trustees and shall be
effective upon filing as specified in such Section 5.
FISCAL YEAR
Section 8. The fiscal year of the Trust shall be determined by
the Trustees in accordance with the By-Laws, provided, however,
that the Trustees may, without Shareholder approval, change the fiscal
year of the Trust. <PAGE>
Schedule A
Series of the Trust
PaineWebber Growth and Income Fund
Classes of Shares of Each Series
An unlimited number of shares of beneficial interest have been
established by the Board as Class A shares, Class B shares, Class C shares
and Class Y shares of each of the above Series. Each of the Class A
shares, Class B shares, Class C shares and Class Y shares of a Series
represents interests in the assets of only that Series and has the
same preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications and terms and conditions of
redemption of shares, except as provided in the Trust's Declaration
of Trust and as set forth below with respect to the Class B shares
of each Series:
1. Each Class B share, other than a share purchased through
the reinvestment of a dividend or a
distribution with respect to the Class B share, shall be
converted automatically, and without any
action or choice on the part of the holder thereof, into
Class A shares of the same Series, based on
the relative net asset value of each such class at the
time of the calculation of the net asset value
of such class of shares on the date that is the first Business
Day (as defined in the Series'
prospectus and/or statement of additional information) of the
month in which the sixth
anniversary of the issuance of such Class B shares occurs
(which, for the purpose of calculating
the holding period required for conversion, shall mean (i)
the date on which the issuance of such
Class B shares occurred or (ii) for Class B shares obtained
through an exchange, the date on
which the issuance of the Class B shares of an eligible
PaineWebber fund occurred, if such
shares were exchanged directly, or through a series of
exchanges for the Series Class B shares
(the "Conversion Date")).
2. Each Class B share purchased through the reinvestment of a
dividend or a distribution with
respect to the Class B shares and the dividends and
distributions on such shares shall be
segregated in a separate sub-account on the stock records of
the Series for each of the holders of
record thereof. On any Conversion Date, a number of the
shares held in the sub-account of the
holder of record of the share or shares being converted,
calculated in accordance with the next
following sentence, shall be converted automatically, and
without any action or choice on the part
of the holder thereof, into Class A shares of the same
Series. The number of shares in the
holder's sub-account so converted shall bear the same
relation to the total number of shares
maintained in the sub-account on the Conversion Date
as the number of shares of the holder
converted on the Conversion Date pursuant to Paragraph
2(a) hereof bears to the total number of
Class B shares of the holder on the Conversion Date not
purchased through the automatic
reinvestment of dividends or distributions with respect
to the Class B shares.
3. The number of Class A shares into which a Class B share
is converted pursuant to paragraphs 1
and 2 hereof shall equal the number (including for this
purpose fractions of a share) obtained by
dividing the net asset value per share of the Class B
shares for purposes of sales and redemptions
thereof at the time of the calculation of the net asset
value on the Conversion Date by the net asset
value per share of the Class A shares for purposes of
sales and redemptions thereof at the time of
the calculation of the net asset value on the Conversion
Date.
4. On the Conversion Date, the Class B shares converted into
Class A shares will cease to accrue
dividends and will no longer be outstanding and the rights
of the holders thereof will cease
(except the right to receive declared but unpaid dividends
to the Conversion Date).
For purposes of Paragraph 1 above, the term "eligible PaineWebber fun
d" includes any and all mutual funds for which PaineWebber
Incorporated or Mitchell Hutchins Asset Management Inc.
serves as investment adviser that offer shares with a
contingent deferred sales
charge imposed upon certain redemptions of such shares
and that are exchangeable with the Class B shares of the Series.
<PAGE>
IN WITNESS WHEREOF, the undersigned, being the all the
Trustees of the Trust, have executed this Amended and Restated
Declaration of Trust as of the day and year first above written.
/s/ Margo N. Alexander
Margo N. Alexander
/s/ Meyer Feldberg
Meyer Feldberg
/s/ E. Garrett Bewkes, Jr.
A. Garrett Bewkes, Jr.
/s/ George W. Gowen
George W. Gowen
/s/ Richard Q. Armstrong
Richard Q. Armstrong
/s/ Frederic V. Malek
Frederic V. Malek
/s/ Richard R. Burt
Richard R. Burt
/s/ Carl W. Schafer
Carl W. Schafer
/s/ Mary C. Farrell
Mary C. Farrell
<PAGE>
PaineWebber America Fund
Attachment 1
1. The principal place of business of PaineWebber America Fund
("Trust") is:
1285 Avenue of the Americas
New York, New York 10019
2. The Trustees of the Trust and their business addresses* are:
Margo N. Alexander
Richard Q. Armstrong
78 West Brother Drive
Greenwich, CT 06830
E. Garrett Bewkes, Jr.
Richard R. Burt
1101 Connecticut Avenue, N.W.
Washington, D. C. 20036
Mary C. Farrell
Meyer Feldberg
Columbia University
101 Uris Hall
New York, New York 10027
George W. Gowen
666 Third Avenue
New York, New York 10017
Frederic V. Malek
1455 Pennsylvania Avenue, N.W.
Suite 350
Washington, D. C. 20004
Carl W. Schafer
P. O. Box 1164
Princeton, N. J. 08542
* Unless otherwise indicated, the business address of each
Trustee is
1285 Avenue of the Americas, New York, New York 10019<PAGE>
PAINEWEBBER AMERICA FUND
A Massachusetts Business Trust
RESTATED BY-LAWS
November 19, 1997
<PAGE>
BY-LAWS OF PAINEWEBBER AMERICA FUND
ARTICLE I
DECLARATION OF TRUST,
LOCATION OF OFFICES AND SEAL
Section 1.01. Declaration of Trust: These By-Laws shall
be subject to the Declaration of Trust, as from time to
time in effect
(the "Declaration of Trust"), of PaineWebber America Fund, the
Massachusetts business trust established by the Declaration of Trust (the
"Trust").
Section 1.02. Principal Office of the Trust: Resident Agent:
The principal office of the Trust shall be located in the City
of New
York, New York. Its resident agent in Massachusetts shall be CT
Corporation System, 2 Oliver Street, Boston, Massachusetts, or such
other person as the Trustees may from time to time designate. The
Trust may establish and maintain such other offices and places of
business as the Trustees may, from time to time, determine.
Section 1.03. Seal: The seal of the Trust shall be circular
in form and shall bear the name of the Trust. The form of the
seal shall
be subject to alteration by the Trustees and the seal may be used by
causing it or a facsimile to be impressed or affixed or printed or
otherwise reproduced. Any officer or Trustee of the Trust shall have
authority to affix the seal of the Trust to any document, instrument
or other paper executed and delivered by or on behalf of the Trust;
however, unless otherwise required by the Trustees, the seal shall not
be necessary to be placed on and its absence shall not impair the
validity of any document, instrument, or other paper executed by or on
behalf of the Trust.
ARTICLE II
SHAREHOLDERS
Section 2.01. Shareholder Meetings: Meetings of the
shareholders may be called at any time by the Trustees
or, if the Trustees
shall fail to call any meeting for a period of 30 days after
written request of Shareholders owning at least one-tenth of
the outstanding shares
entitled to vote, then such Shareholders may call such meeting.
Each call of a meeting shall state the place, date, hour and
purposes of the
meeting.
Section 2.02. Place of Meetings: All meetings of the
Shareholders shall be held at the principal office of
the Trust, except that
the Trustees may designate a different place of meeting
within the United States.
Section 2.03. Notice of Meeting: The secretary or
an assistant secretary or such other officer as may
be designated by the
Trustees shall cause notice of the place, date and hour,
and purpose or purposes for which the meeting is called,
to be mailed, not less than
fifteen days before the date of the meeting, to each
Shareholder entitled to vote at such meeting, at his
address as it appears on the records
of the Trust at the time of such mailing. Notice of
any Shareholders' meeting need not be given to any
Shareholder if a written waiver of
notice, executed before or after such meeting, is
filed with the records of such meeting, or to any
Shareholder who shall attend such meeting
in person or by proxy. Notice of adjournment of a
Shareholders' meeting to another time or place need
not be given, if such time and place
are announced at the meeting.
Section 2.04. Ballots: The vote upon any question
shall be by ballot whenever requested by any person
entitled to vote, but,
unless such a request is made, voting may be conducted in
any way approved by the meeting.
Section 2.05. Voting; Proxies: Shareholders entitled
to vote may vote either in person or by proxy, provided
that such proxy
to act is authorized to act by (1) a written instrument,
dated not more than eleven months before the meeting and
executed either by the
Shareholder or by his or her duly authorized attorney in
fact (who may be so authorized by a writing or by any
non-written means permitted
by the laws of the Commonwealth of Massachusetts) or
(2) such electronic, telephonic, computerized or other
alternative means as may
be approved by a resolution adopted by the Trustees.
Proxies shall be delivered to the secretary of the
Trust or other person responsible
for recording the proceedings before being voted.
A proxy with respect to shares held in the name of
two or more persons shall be valid
if executed by one of them unless at or prior to
exercise of such proxy the Trust receives a specific
written notice to the contrary from any
one of them. Unless otherwise specifically limited
by their terms, proxies shall entitle the holder
thereof to vote at any adjournment of a
meeting. A proxy purporting to be exercised by
or on behalf of a Shareholder shall be deemed
valid unless challenged at or prior to its
exercise and the burden of proving invalidity
shall rest on the challenger. At all meetings
of the Shareholders, unless the voting is
conducted by inspectors, all questions relating
to the qualifications of voters, the validity of
proxies, and the acceptance or rejection of votes
shall be decided by the chairman of the meeting.
Section 2.06. Action Without a Meeting:
Any action to be taken by Shareholders may
be taken without a meeting if all
Shareholders entitled to vote on the
matter consent to the action in writing
and the written consents are filed with
the records of meetings
of Shareholders of the Trust. Such consent
shall be treated for all purposes as a vote
at a meeting.
ARTICLE III
TRUSTEES
Section 3.01. Regular Meetings: Regular
meetings of the Trustees may be held
without further call or notice at such places and
at such times as the Trustees may from time to time
determine, provided that notice of the first regular
meeting following any such
determination shall be given to absent Trustees.
A regular meeting of the Trustees may be held without
further call or notice immediately
after and at the same place as any meeting of the
Shareholders.
Section 3.02. Special Meetings: Special
meetings of the Trustees may be held at any
time and at any place designated in the call
of the meeting, when called by the chairman of the
Trustees or by two or more Trustees, provided that
notice thereof shall being given to
each Trustee as set forth in the Declaration of
Trust.
Section 3.03. Committees: The Trustees,
by vote of a majority of the Trustees then
in office, may elect from their number an
executive committee or other committees and may
delegate thereto some or all of their powers
except those which by law, by the
Declaration of Trust, or by these By-Laws may not be
delegated. Except as the Trustees may otherwise
determine, any such committee
may make rules for the conduct of its business,
but unless otherwise provided by the Trustees or
in such rules, its business shall be
conducted so far as possible in the same manner
as is provided by these By-Laws for the Trustees
themselves. All members of such
committees shall hold such offices at the pleasure
of the Trustees. The Trustees may abolish any such
committee at any time. Any
committee to which the Trustees delegate any of
their powers or duties shall keep records of its
meetings and shall report its actions to the
Trustees. The Trustees shall have power to rescind
any action of any committee, but no such rescission
shall have retroactive effect. Any
such committee may act by meeting in person, by
unanimous written consent, or by telephonic meeting
provided a quorum of members
participates in any such telephonic meeting.
Section 3.04. Other Committees: The Trustees
may appoint other committees, each consisting of
one or more persons, who need
not be Trustees. Each such committee shall have such
powers perform such duties and abide by such procedures
as may be determined
from time to time by the Trustees, but shall not exercise
any power which may lawfully be exercised only by the
Trustees or a committee
of Trustees.
Section 3.05. Compensation: Each Trustee and each
committee member may receive such compensation for
his services and
reimbursement for his expenses as may be fixed from time
to time by resolution of the Trustees.
ARTICLE IV
OFFICERS
Section 4.01. General: The officers of the Trust
shall be a president, a treasurer, a secretary and
such other officers, if any, as
the Trustees from time to time may in their discretion
elect or appoint. The Trust may also have such agents,
if any, as the Trustees from
time to time may in their discretion appoint. Any
officer may be but need not be a Trustee or shareholder.
Any two or more offices may
be held by the same person.
Section 4.02. Election and Term of Office: The president,
the treasurer and the secretary shall be elected annually
by the Trustees
at their first meeting in each calendar year or at such later
meeting in such year as the Trustees shall determine ("Annual
Meeting"). Other
officers or agents, if any, may be elected or appointed by the
Trustees at said meeting or at any other time. The president,
treasurer and
secretary shall hold office until the next Annual Meeting and
until their respective successors are chosen and qualified, or
in each case until
he dies, resigns, is removed or become disqualified. Each
other officer shall hold office and each agent shall retain
his authority at the
pleasure of the Trustees.
Section 4.03. Powers: Subject to the other provisions
of these By-Laws, each officer shall have, in addition
to the duties and
powers herein and in the Declaration of Trust set forth, such
duties and powers as are commonly incident to his office as if
the Trust were
organized as a Massachusetts business corporation and such other
duties and powers as the Trustees may from time to time designate.
Section 4.04. Chairman of the Board: The chairman of the
Board of Trustees, if one is so appointed, shall be chosen
from among
the Trustees and may hold office only so long as he continues
to be a Trustee. Unless the Trustees otherwise provide, the
chairman, if any
is so appointed, shall preside at all meetings of the
Shareholders and of the Trustees at which he is present;
may be ex officio a member
of all committees established by the Trustees; and
shall have such other duties and powers as specified
herein and as may be assigned to
him by the Trustees.
Section 4.05. President: The president shall be
the chief executive officer of the Trust and, subject
to the supervision of the
Trustees, shall have general charge of the business,
affairs and property of the Trust and general supervision
over its officers, employees
and agents. He shall exercise such other powers and
perform such other duties as from time to time may be
assigned to him by the
Trustees.
Section 4.06. Vice Presidents:
The Trustees may from time to time
designate and elect one or more vice
presidents who shall
have such powers and perform such duties as
from time to time may be assigned to them by
the Trustees or the president. At the request
or in the absence or disability of the president,
the vice president (or, if there are two or more vice
presidents, then the senior of the vice
presidents present and able to act) may perform all
the duties of the president and, when so acting, shall
have all the powers of and be
subject to all the restrictions upon the president.
Section 4.07. Treasurer and Assistant Treasurers:
The treasurer shall be the principal financial and
accounting officer of the
Trust and shall have general charge of the finances and
books of account of the Trust. Except as otherwise
provided by the Trustees, he
shall have general supervision
of the funds and property of the Trust and of the
performance by the custodian of its duties with respect
thereto. He shall render to the Trustees, whenever
directed by the Trustees, an account of the financial
condition of the Trust and of all
his transactions as treasurer; and as soon as possible
after the close of each financial year he shall make and
submit to the Trustees a like
report for such financial year.
He shall perform all the acts incidental to the office of
treasurer, subject to the control of the Trustees.
Any assistant treasurer may perform such duties
of the treasurer as the treasurer or the Trustees
may assign, and, in the absence
of the treasurer, (or, if there are two or more assistant
treasurers, then the senior of the assistant treasurers
present and able to act) may
perform all the duties of the
treasurer, subject to the
control of the Trustees.
Section 4.08. Secretary
and Assistant Secretaries:
The secretary shall attend
to the giving and serving
of all notices of the Trust
and shall record all proceedings of the meetings of the Shareholders
and Trustees in books to be kept for that purpose. He shall keep in
safe custody the seal of the Trust, and shall have charge of the
records of the Trust, all of which shall at all reasonable times
be open to inspection by the Trustees. He shall perform such
other duties as appertain to his office or as may be required
by the Trustees.
Any assistant secretary may perform such duties of the
secretary as the secretary or the Trustees may assign,
and, in the absence
of the secretary, (or, if there are two or more assistant
secretaries. then the senior of the assistant secretaries
present and able to act) may
perform all the duties of the secretary.
Section 4.09. Subordinate Officers: The Trustees
from time to time may appoint such other officers or
agents as they may deem
advisable, each of whom shall have such title, hold office
for such period, have such authority and perform such duties
as the Trustees may
determine. The Trustees from time to time may delegate to
one or more officers or agents the power to appoint any such
subordinate
officers or agents and to prescribe their respective rights,
terms of office, authorities and duties.
Section 4.10. Remuneration: The salaries or other
compensation of the officers of the Trust shall be
fixed from time to time by
resolution of the Trustees, except
that the Trustees may by resolution
delegate to any person or group of persons the power to fix the
salaries or other compensation of any subordinate officers or
agents appointed in accordance with the provisions of Section
4.09 hereof.
Section 4.11. Surety Bonds: The Trustees may require
any officer or agent of the Trust to execute a bond (including,
without limitation, any bond required by the Investment Company
Act of 1940, as amended, ("1940 Act") and the rules and
regulations of the
Securities and Exchange Commission ("Commission")) to the Trust
in such sum and with such surety or sureties as the Trustees may
determine, conditioned upon the faithful performance of his duties
to the Trust including responsibility for negligence and for the
accounting
of any of the Trust's property, funds or securities that may come
into his hands.
Section 4.12. Resignation: Any officer may resign his office
at any time by delivering a written resignation to the Trustees,
the
president, the secretary, or any assistant secretary. Unless
otherwise specified therein, such resignation shall take effect
upon delivery.
Section 4.13. Removal: Any officer may be removed from
office whenever in the judgment of the Trustees the best
interest of
the Trust will be served thereby, by the vote of a majority of
the Trustees given at a regular meeting or any special meeting
of the Trustees
called for such purpose. In addition, any officer or agent
appointed in accordance with the provision of Section 4.09
hereof may be
removed, either with or without cause, by any officer upon
whom such power of removal shall have been conferred by the
Trustees.
Section 4.14. Vacancies and Newly Created Offices: If
any vacancy shall occur in any office by reason of death,
resignation,
removal, disqualification or other cause, or if any new office
shall be created, such vacancies or newly created offices may
be filled by the
Trustees at any regular or special meeting of the Trustees or,
in the case of any office created pursuant to Section 4.09 hereof,
by any officer
upon whom such power shall have been conferred by the Trustees.
ARTICLE V
CUSTODIAN
Section 5.01. Employment of Custodian: The Trustees shall
at all times employ one or more banks or trust companies organized
under the laws of the U.S. or one of the states thereof provided that
each such bank or trust company has capital, surplus and undivided
profits of at least two million dollars ($2,000,000) as custodian
with authority as the Trust's agent, but subject to such restrictions,
limitations and other requirements, if any, as may be contained in
these By-Laws:
(1) to hold the securities owned by the Trust and deliver
the same upon written order, or
oral order if confirmed in
writing, or order delivered
by such electromechanical 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 give receipt for any moneys due
to the Trust and deposit the same in its
own banking department or elsewhere
as the Trustees may direct; and
(3) to disburse such moneys upon orders or vouchers;
and the Trust may also enjoy such custodian as its agent:
(1) to keep the books and accounts of the Trust and
furnish clerical and accounting
services; and
(2) to compute, if
authorized to do so by the Trustees, the Net Asset Value
of any Series
or Class (which terms are defined in the Declaration
of Trust) in accordance with the
provisions of the Declaration of Trust;
all upon such basis of compensation as may be agreed
upon between the Trustees and the custodian. If so
directed by a vote of a majority
of the outstanding shares of the Trust entitled to vote,
the custodian shall deliver and pay over all property of
the Trust held by it as specified
in such vote.
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 or 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.
Section 5.02. Use of Central Securities Handling System
: Subject to such rules, regulations and orders as the
Commission may
adopt, the Trustees may direct the custodian to deposit any
or all of the securities owned by the Trust (1) 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, 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 (2) with such other person
as may be
permitted by the Commission, or otherwise in accordance with the
1940 Act.
ARTICLE VI
EXECUTION OF PAPERS
Section 6.01. General: Except as the Trustees may generally
or in particular cases authorize the execution thereof in some
other
manner, all deeds, leases, transfers, contracts, bonds, notes,
checks, drafts, and other obligations made, accepted, or
endorsed by the Trust
shall be executed by the president, any vice president,
or the treasurer, or by whomever else shall be designated
for that purpose by the
Trustees, and need not bear the seal of the Trust.
ARTICLE VII
SHARES OF BENEFICIAL INTEREST
Section 7.01. Share Certificates:
No certificates certifying the ownership
of Shares shall be issued except as the Trustees may
otherwise authorize. In the event that the Trustees
authorize the issuance of Share certificates, subject
to the provisions of Section 7.03,
each Shareholder shall be entitled to a certificate
stating the number of shares owned by him, in such
form as shall be prescribed from time
to time by the Trustees. Such certificate shall be
signed by the president or a vice president and by
the treasurer, assistant treasurer,
secretary or assistant secretary. Such signatures
may be facsimiles if the certificate is signed by a
transfer or shareholder services agent
or by a registrar, other than a Trustee, officer or
employee of the Trust. In case any officer who has
signed or whose facsimile signature
has been placed on such certificate shall have cease
d to be such officer before such certificate is issued,
it may be issued by the Trust with
the same effect as if he were such officer at the time of its issue.
In lieu of issuing certificates for shares, the Trustees, the
transfer agent or shareholder services agent may either issue
receipts
therefor or may keep accounts upon the books of the Trust for the
record holders of such shares, who shall in either case be deemed, for
all purposes hereunder, to be the holders of certificates for such shares
as if they had accepted such certificates and shall be held to have
expressly assented and agreed to the terms hereof.
Section 7.02. Loss of Certificates: In the
case of the alleged loss or destruction or the
mutilation of a Share certificate, a duplicate
certificate may be issued in place thereof, upon such
terms as the Trustees may prescribe.
Section 7.03. Discontinuance of Issuance of
Certificates: The Trustees may at any time
discontinue the issuance of Share
certificates and may, by written notice to each Shareholder,
require the surrender of Share certificates to the Trust for
cancellation. Such
surrender and cancellation shall not affect the ownership of
Shares in the Trust.
Section 7.04. Equitable Interest Not Recognized: The
Trust shall be entitled to treat the holder of record of
any Share or Shares
of the Trust as the holder
in fact thereof, and shall
not be bound to recognize
any equitable or other claim of interest in such Share or Shares
on the part of any other person except as may be otherwise
expressly provided by law.
Section 7.05. Transfer of Shares: The Shares of the
Trust shall be transferable only by transfer recorded
on the books of the
Trust, in person or by attorney.
ARTICLE VIII
FISCAL YEAR; ACCOUNTANT
Section 8.01. Fiscal Year: The fiscal year of the
Trust shall end on such date in each year as the
Trustees shall from time to time
determine.
Section 8.02. Accountant:
(a) The Trust shall employ an independent public
accountant or firm of independent public accountants
as its accountant to
examine the accounts of the Trust and to sign and certify
the financial statements of the Trust. The accountant's
certificates and reports
shall be addressed both to the Trustees and to the
Shareholders of the Trust.
(b) Any vacancy occurring due to the death or
resignation of the accountant may be filled by
a majority vote of the Trustees who
are not interested persons of the Trust.
ARTICLE IX
INSURANCE
Section 9.01. Insurance of
Officers, Trustees, and Employees:
The Trust may purchase and maintain
insurance on behalf of any
person who is or was a Trustee, officer or
employee of the Trust, or is or was serving
at the request of the Trust as a Trustee, officer or
employee of a corporation, partnership, joint venture,
trust or other enterprise against any liability asserted
against him and incurred by
him in any such capacity or arising out of his status as
such, whether or not the Trust would have the power to
indemnify him against such
liability.
The Trust may not acquire or obtain a contract for
insurance that protects or purports to protect any
Trustee or officer of the Trust
against any liability to the Trust or its 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 his office.
ARTICLE X
AMENDMENTS; REPORTS; MISCELLANEOUS
Section 10.1. Amendments: These By-Laws
may be amended or repealed, in whole or
in part, by a majority of the Trustees then
in office at any meeting of the Trustees, or by
one or more writings signed by such majority.
Section 10.2. Reports: The Trustees
shall at least semiannually submit to
the Shareholders a written report of the transactions
of the Trust, including financial statements that shall at
least annually be certified by independent public accountants.
Section 10.3. Gender: As used in these By-Laws, the
masculine gender shall include the feminine and neuter genders.
Section 10.3. Headings: Headings are placed in these bylaws
for convenience of reference only and in case of any conflict,
the
text of these By-Laws rather than the headings shall control.
Section 10.4. Inspection of Books: The Trustees shall
from time to time determine whether and to what extent,
and at what times
and places, and under
what conditions and
regulations the
accounts and books of the Trust or any of them shall be open to the
inspection
of the Shareholders, and no Shareholder shall have any right to
inspect any account or book or document of the Trust except as conferred
by law or otherwise by the Trustees.
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