Exhibit a(1)
AMENDED AND RESTATED DECLARATION OF TRUST
FIDELITY COMMONWEALTH TRUST
AMENDED AND RESTATED DECLARATION OF TRUST, made December 16,
1999 by
each of the Trustees whose signature is affixed hereto (the
"Trustees").
WHEREAS, the Trustees desire to amend and restate this
Declaration of Trust for the sole purpose of supplementing
the Declaration of Trust to incorporate amendments duly
adopted; and
WHEREAS, this Trust was initially made on November 8, 1974
by Edward C. Johnson 3d, Caleb Loring, Jr., George K.
McKenzie and William R. Spaulding in order to establish a
trust for the investment and reinvestment of funds
contributed thereto;
NOW, THEREFORE, the Trustees declare that all money and
property contributed to the trust hereunder shall be held
and managed in trust under this Amended and Restated
Declaration of Trust as herein set forth below.
_________________________________________________
ARTICLE I
NAME AND DEFINITIONS
NAME
SECTION 1. This Trust shall be known as "Fidelity
Commonwealth
Trust."
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 modified by or
interpreted by any applicable order or orders of the
Commission or any rules or regulations adopted or
interpretative releases of the Commission thereunder;
(b) "Bylaws" shall mean the bylaws of the Trust, if any, as
amended
from time to time;
(c) "Class" refers to the class of Shares of a Series of the
Trust
established in accordance with the provisions of Article
III;
(d) "Declaration of Trust" means this Amended and Restated
Declaration of Trust, as further amended or restated, from
time to time;
(e) "Net Asset Value" means the net asset value of each
Series of the Trust or Class thereof determined in the
manner provided in Article X, Section 3;
(f) "Shareholder" means a record owner of Shares of the
Trust;
(g) "Shares" means the equal proportionate transferable
units of interest into which the beneficial interest of the
Trust or each Series shall be divided from time to time,
including such Class or Classes of Shares as the Trustees
may from time to time create and establish and including
fractions of Shares as well as whole Shares as consistent
with the requirements of Federal and/or state securities
laws;
(h) "Series" refers to any series of Shares of the Trust
established
in accordance with the provisions of Article III;
(i) "Trust" refers to Fidelity Commonwealth Trust and
reference to the Trust, when applicable to one or more
Series of the Trust, shall refer to any such Series;
(j) "Trustees" refer to the individual trustees in their
capacity as trustees hereunder of the Trust and their
successor or successors for the time being in office as such
trustee or trustees; and
(k) "1940 Act" refers to the Investment Company Act of
1940, as amended from time to time.
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 of Series as the
Trustees shall, from time to time, create and establish. The
number of authorized Shares of each Series, and Class
thereof, is unlimited. Each Share shall be without par
value and 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 any Series or Class of the Trust
(a) to create and establish (and to change in any manner)
Shares or any Series or Classes thereof with such
preferences, voting powers, rights, and privileges as the
Trustees may, from time to time, determine; (b) to divide or
combine the Shares or any Series or Classes thereof into a
greater or lesser number; (c) to classify or reclassify any
issued Shares into one or more Series or Classes of Shares;
(d) to abolish any one or more Series or Classes of Shares;
and (e) to take such other action with respect to the Shares
as the Trustees may deem desirable.
ESTABLISHMENT OF SERIES AND CLASSES
SECTION 2. The establishment of any Series or Class
thereof 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, whether
directly in such resolution or by reference to, or approval
of, another document that sets forth such relative rights
and preferences of the Shares of such Series or Class
including, without limitation, any registration statement of
the Trust, or as otherwise provided in such resolution. At
any time that there are no Shares outstanding of any
particular Series or Class previously established and
designated, the Trustees may by a majority vote abolish such
Series or Class and the establishment and designation
thereof.
OWNERSHIP OF SHARES
SECTION 3. The ownership of Shares shall be recorded in
the books of the Trust or a transfer or similar agent. The
Trustees may make such rules as they consider appropriate
for the transfer of Shares and similar matters. The record
books of the Trust as kept by the Trust or by any transfer
or similar agent, as the case may be, 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, securities, or other property in which the
appropriate Series is authorized to invest, valued as
provided in Article X, 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. 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 or other fee
upon investments in the Trust or Series or any Classes
thereof, and (b) issue fractional Shares.
ASSETS AND LIABILITIES OF SERIES AND CLASSES
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 that are not readily identifiable as belonging to
any particular Series or Class, shall be allocated by the
Trustees between and among one or more of the Series or
Classes 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
or Classes for all purposes and shall be referred to as
assets belonging to that Series or Class. The assets
belonging to a particular Series shall be so recorded upon
the books of the Trust or of its agent or agents 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 may, in the
Trustees' discretion, be allocated solely to a particular
Class and, in which case, shall be borne by that Class. Any
general liabilities, expenses, costs, charges, or reserves
of the Trust that 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 and shall be
referred to as "liabilities belonging to" that Series or
Class. 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. No Shareholder or former Shareholder
of any Series shall have a claim on or any right to any
assets allocated or belonging to any other Series.
NO PREEMPTIVE RIGHTS
SECTION 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 instrument. Every
shareholder by virtue of having become a shareholder shall
be held to have expressly assented and agreed to be bound by
the terms hereof. No Shareholder of the Trust and of each
Series shall be personally liable for the debts,
liabilities, obligations, and expenses incurred by,
contracted for, or otherwise existing with respect to, the
Trust or by or on behalf of any Series. The Trustees shall
have no power to bind any Shareholder personally or to call
upon any Shareholder for the payment of any sum of money or
assessment whatsoever other than such as the Shareholder
may, at any time, personally agree to pay by way of
subscription for any Shares or otherwise. Every note, bond,
contract, or other undertaking issued by or on behalf of the
Trust or the Trustees relating to the Trust or to a Series
shall include a recitation limiting the obligation
represented thereby to the Trust or to one or more Series
and its or their assets (but the omission of such a
recitation shall not operate to bind any Shareholder or
Trustee). 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.
INITIAL TRUSTEES; ELECTION
SECTION 2. The initial Trustees shall be at least three
individuals who shall affix their signatures hereto. On a
date fixed by the Trustees, the Shareholders shall elect not
less than three Trustees. A Trustee shall not be required to
be a Shareholder of the Trust.
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, which shall take effect upon such
delivery or upon such later date as is specified therein;
(b) that any Trustee may be removed at any time by written
instrument, signed by at least two-thirds (2/3) 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 the other
Trustees, specifying the date of his retirement; and (d) a
Trustee may be removed at any special meeting of the Trust
by a vote of two-thirds (2/3) of the outstanding Shares.
RESIGNATION AND APPOINTMENT OF TRUSTEES
SECTION 4. In case of the declination, death, resignation,
retirement, or removal of any of the Trustees, or in case a
vacancy shall, by reason of an increase in number of the
Trustees, or for any other reason, exist, the remaining
Trustees shall fill such vacancy by appointing such other
person as they in their discretion shall see fit consistent
with the limitations under the 1940 Act. Such appointment
shall be evidenced by a written instrument signed by a
majority of the Trustees in office or by 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 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 foregoing power of
appointment is subject to the provisions of Section 16(a) of
the 1940 Act, as modified by or interpreted by any
applicable order or orders of the Commission or any rules or
regulations adopted or interpretative releases of the
Commission.
TEMPORARY ABSENCE OF TRUSTEES
SECTION 5. Any Trustee may, by power of attorney, delegate
his power for a period not exceeding six (6) months at any
one time to any other Trustee or Trustees, provided that in
no case shall 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, not less than three (3)
nor more than twelve (12), serving hereunder at any time
shall be determined by the Trustees themselves.
Whenever a vacancy in the Board of Trustees shall occur,
until such vacancy is filled, or while any Trustee 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 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
Trustees, 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. No
Shareholder shall be deemed to have a severable ownership in
any individual asset of the Trust or any right of partition
or possession thereof, but each Shareholder shall have a
proportionate undivided beneficial interest in the Trust or
Series.
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. Except as otherwise provided herein or in the
1940 Act, 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 that they, in their
discretion, shall deem proper to accomplish the purpose of
this Trust. Subject to any applicable limitation in this
Declaration of Trust or the Bylaws of the Trust, if any, the
Trustees shall have power and authority:
(a) To invest and reinvest cash and other property, and to
hold cash
or other property uninvested without, in any event, being
bound or limited by any present or future law or custom in
regard to investments by Trustees, and to sell, exchange,
lend, pledge, mortgage, hypothecate, write options on, and
lease any or all of the assets of the Trust.
(b) To adopt Bylaws 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 that right to the Shareholders.
(c) To elect and remove such officers and appoint and
terminate such
agents as they consider appropriate.
(d) To employ one or more banks, trust companies, companies
that are members of a national securities exchange, or other
entities permitted under the 1940 Act, as modified by or
interpreted by any applicable order or orders of the
Commission or any rules or regulations adopted or
interpretative releases of the Commission thereunder, as
custodians of any assets of the Trust subject to any
conditions set forth in this Declaration of Trust or in the
Bylaws, if any.
(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 investment adviser,
manager, custodian, underwriter, or other agent or
independent contractor.
(i) To sell or exchange any or all of the assets of the
Trust, subject to the provisions of Article XII, Section 4
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.
(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 Classes of such
Series having relative rights, powers, and duties as the
Trustees may provide consistent with applicable laws.
(n) To allocate assets, liabilities, and expenses of the
Trust to a particular Series or Class, as appropriate, or to
apportion the same between or among two or more Series or
Classes, as appropriate, 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 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, and to pledge, mortgage, or
hypothecate the assets of the Trust, subject to the
applicable requirements of the 1940 Act.
(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.
(t) To operate as and carry on the business of an
investment company
and to exercise all the powers necessary and appropriate to
the conduct of such operations.
(u) To interpret the investment policies, practices or
limitations of
any Series.
(v) To issue, sell, repurchase, redeem, retire, cancel,
acquire, hold, resell, reissue, dispose of, and otherwise
deal in Shares and, subject to the provisions set forth in
Article III and Article X, to apply to any such repurchase,
redemption, retirement, cancellation or acquisition of
Shares any funds or property of the Trust, or the particular
Series of the Trust, with respect to which such Shares are
issued.
(w) Notwithstanding any other provision hereof, to invest
all or a portion of the assets of any Series in one or more
open-end investment companies, including investment by means
of transfer of such assets in exchange for an interest or
interests in such investment company or companies or by any
other method approved by the Trustees.
(x) In general to carry on any other business in
connection with or incidental to any of the foregoing
powers, to do everything necessary, suitable or proper for
the accomplishment of any purpose or the attainment of any
object or the furtherance of any power hereinbefore set
forth, either alone or in association with others, and to do
every other act or thing incidental or appurtenant to or
growing out of or
connected with the aforesaid business or purposes, objects
or powers.
The foregoing clauses shall be construed both as objects
and powers, and the foregoing enumeration of specific powers
shall not be held to limit or restrict in any manner the
general powers of the Trustees. Any action by one or more of
the Trustees in their capacity as such hereunder shall be
deemed an action on behalf of the Trust or the applicable
Series and not an action in an individual capacity.
The Trustees shall not be limited to investing in
obligations maturing before the possible termination of the
Trust or any Series or Class thereof.
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 or other agent of the
Trust may acquire, own and dispose of Shares to the same
extent as if he were not a Trustee, officer or agent; and
the Trustees may issue and sell or cause to be issued and
sold Shares to and buy such Shares from any such person of
any firm or company in which he is interested, subject only
to the general limitations herein contained as to the sale
and purchase of such Shares; and all subject to any
restrictions which may be contained in the Bylaws, if any.
ACTION BY THE TRUSTEES
SECTION 3. Except as otherwise provided herein or in the
1940 Act, 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 at which the Trustees are present in person. At
any meeting of the Trustees, a majority of the Trustees
shall constitute a quorum. Meetings of the Trustees may be
called orally or in writing by the Chairman of the Trustees
or by any two other Trustees. Notice of the time, date, and
place of all meetings of the Trustees shall be given by the
party calling the meeting to each Trustee by telephone,
telefax, telegram, or other electro-mechanical means sent to
his home or business address at least twenty-four (24) hours
in advance of the meeting or by written notice mailed to his
home or business address at least seventy-two (72) 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. 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. Written consents or waivers of Trustees may be
executed in one or more counterparts. Execution of a
written consent or waiver and delivery thereof to the Trust
may be accomplished by telefax or other electro-mechanical
means.
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 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 registering and qualifying the Trust and its Shares under
Federal and state laws and regulations; charges of
custodians, transfer agents, and registrars; expenses of
preparing and setting up in type prospectuses and statements
of additional information; expenses of printing and
distributing prospectuses sent to existing Shareholders;
auditing and legal expenses; reports to Shareholders;
expenses of meetings of Shareholders and proxy solicitations
therefor; insurance expense; association membership dues;
and for such non-recurring items as may arise, including
litigation to which the Trust is a party; and for all losses
and liabilities by them incurred in administering the Trust,
and for the payment of such expenses, disbursements, losses,
and liabilities the Trustees shall have a lien on the assets
belonging to the appropriate Series 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 and 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
instructions 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, as modified by or interpreted by any applicable
order or orders of the Commission or any rules or
regulations adopted or interpretative releases of the
Commission thereunder, 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 an exclusive or non-exclusive contract(s)
on behalf of the Trust or any Series or Class thereof
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 Bylaws, 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 Bylaws, if any.
Such contract may also provide for the repurchase or sale of
Shares by such other party as principal or as agent of the
Trust.
TRANSFER AGENT
SECTION 3. The Trustees may, in their discretion and from
time to time, enter into one or more transfer agency and
Shareholder service contracts whereby the other party shall
undertake to furnish the Trustees with transfer agency and
Shareholder services. Such contracts 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 Bylaws, if any. Such services
may be provided by one or more entities.
PARTIES TO CONTRACT
SECTION 4. Any contract of the character described in
Sections 1, 2 and 3 of this Article VII or in Article IX
hereof may be entered into with any corporation, firm,
partnership, trust or association, although one or more of
the Trustees or officers of the Trust may be an officer,
director, trustee, shareholder, or member of such other
party to the contract, and no such contract shall be
invalidated or rendered 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
Bylaws, 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 Article IX, and any individual may be
financially interested or otherwise affiliated with persons
who are parties to any or all of the contracts mentioned in
this Section 4.
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
requirements of Section 15 of the 1940 Act, as modified by
or interpreted by any applicable order or orders of the
Commission or any rules or regulations adopted or
interpretative releases of the Commission (or other
applicable Act of Congress hereafter enacted), with respect
to its continuance in effect, its amendment, 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 (a)
for the
election of Trustees as provided in Article IV, Section 2;
(b) for the removal of Trustees as provided in Article IV,
Section 3(d); (c) with respect to any investment advisory or
management contract as provided in Article VII, Sections 1
and 5; (d) with respect to any termination, merger,
consolidation, reorganization, or sale of assets of the
Trust or any of its Series or Classes as provided in Article
XII, Section 4; (e) with respect to the amendment of this
Declaration of Trust as provided in Article XII, Section 7;
(f) 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 (g) 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
Bylaws of the Trust, if any, or any registration of the
Trust with the Commission or any state, 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 as provided in
the following sentence and except (a) when required by the
1940 Act, Shares shall be voted in the aggregate and not by
individual Series; and (b) when the Trustees have determined
that the matter affects only the interests of one or more
Series, then only the Shareholders of such Series shall be
entitled to vote thereon. The Trustees may also determine
that a matter affects only the interests of one or more
Classes of a Series, in which case, any such matter shall be
voted on by such Class or Classes. A Shareholder of each
Series or Class thereof shall be entitled to one vote for
each dollar of net asset value (number of Shares owned times
net asset value per share) of such Series or Class thereof
on any matter on which such Shareholder is entitled to vote,
and each fractional dollar amount shall be entitled to a
proportionate fractional vote. There shall be no cumulative
voting in the election of Trustees. Shares may be voted in
person or by proxy. 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 Bylaws of the Trust, if any, 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 of any
Series may be called by the Trustees and shall be called by
the Trustees upon the written request of Shareholders owning
at least one-tenth (1/10) 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 modified by or interpreted by any applicable order or
orders of the Commission or any rules or regulations adopted
or interpretative releases of the Commission, seek the
opportunity of furnishing materials to the other
Shareholders with a view to obtaining signatures on such a
request for a meeting, the Trustees shall comply with the
provisions of said Section 16(c) with respect to providing
such Shareholders access to the list of the Shareholders of
record of the Trust or the mailing of such materials to such
Shareholders of record. Shareholders shall be entitled to at
least fifteen (15) 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 shall vote as a Series or Class then a
majority of the aggregate number of Shares of that Series or
Class 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 applicable law or by any
provision of this Declaration of Trust or the Bylaws, if
any, 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. Shareholders may act by unanimous
written consent. Actions taken by a Series or Class may be
consented to unanimously in writing by Shareholders of that
Series or Class.
ARTICLE IX
CUSTODIAN
APPOINTMENT AND DUTIES
SECTION 1. The Trustees shall at all times employ a bank,
a company that is a member of a national securities
exchange, trust company, or other entity permitted under the
1940 Act, as modified by or interpreted by any applicable
order or orders of the Commission or any rules or
regulations adopted or interpretative releases of the
Commission thereunder, having capital, surplus, and
undivided profits of at least two million dollars
($2,000,000), or such other amount as shall be allowed by
the Commission or by the 1940 Act, as custodian with
authority as its agent, but subject to such restrictions,
limitations and other requirements, if any, as may be
contained in the Bylaws of the Trust, if any:
(1) to hold the securities owned by the Trust and deliver
the same upon written order or oral order, if confirmed in
writing, or by such electro-mechanical or electronic devices
as are agreed to by the Trust and the custodian, if such
procedures have been authorized in writing by the Trust;
(2) to receive and receipt for any moneys due to the Trust
and deposit the same in its own banking department or
elsewhere as the Trustees may direct; and
(3) to disburse such funds upon orders or vouchers;
and the Trust may also employ 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, the Net Asset Value
of any Series or Class thereof in accordance with the
provisions hereof; all upon such basis of compensation as
may be agreed upon between the Trustees and the custodian.
The Trustees may also authorize the custodian to employ one
or more
sub-custodians from time to time to perform such of the acts
and services of the custodian, and upon such terms and
conditions, as may be agreed upon between the custodian and
such sub-custodian and approved by the Trustees, provided
that in every case such sub-custodian shall be a bank, a
company that is a member of a national securities exchange,
trust company, or other entity permitted
under the 1940 Act, as modified by or interpreted by any
applicable order or orders of the Commission or any rules or
regulations adopted or interpretative releases of the
Commission thereunder, having capital, surplus, and
undivided profits of at least two million dollars
($2,000,000), or such other amount as shall be allowed by
the Commission or by the 1940 Act.
CENTRAL DEPOSITORY SYSTEM
SECTION 2. Subject to such rules, regulations and orders
as the Commission may adopt, the Trustees may direct the
custodian to deposit all or any part of the securities owned
by the Trust in a system for the central handling of
securities established by a national securities exchange or
a national securities association registered with the
Commission under the Securities Exchange Act of 1934 or such
other person as may be permitted by the Commission or
otherwise in accordance with the 1940 Act, pursuant to which
system all securities of any particular class or series of
any issuer deposited within the system are treated as
fungible and may be transferred or pledged by bookkeeping
entry without physical delivery of such securities; provided
that all such deposits shall be subject to withdrawal only
upon the order of the Trust or its custodian, subcustodians,
or other authorized agents.
ARTICLE X
DISTRIBUTIONS, REDEMPTIONS AND DETERMINATION OF NET ASSET
VALUE DISTRIBUTIONS
SECTION 1.
(a) The Trustees may from time to time declare and pay
dividends. The
amount of such dividends and the payment of them shall be
wholly in the discretion of the Trustees.
(b) The Trustees shall have the power, to the fullest
extent permitted by the laws 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, 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 Classes thereof, at the election of each
Shareholder of that Series.
The Trustees may adopt and offer to Shareholders such
dividend reinvestment plans, cash dividend payout plans, or
related plans as the Trustees shall deem appropriate.
(c) Anything in this instrument to the contrary
notwithstanding, the Trustees may at any time declare and
distribute a dividend of stock or other property pro rata
among the Shareholders of a particular Series, or Class
thereof, as of the record date of that Series or Class fixed
as provided in Article XII, Section 3.
REDEMPTIONS
SECTION 2. In case any holder of record of Shares of a
particular Series or Class of a Series 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 thereof (as described in Section 3 hereof). The Series
shall make payment for any such Shares to be redeemed, as
aforesaid, in cash or property from the assets of that
Series, and payment for such Shares less any applicable
deferred sales charges and/or fees shall be made by the
Series or the principal underwriter of the Series to the
Shareholder of record within seven (7) days after the date
upon which the request is effective.
DETERMINATION OF NET ASSET VALUE AND VALUATION OF PORTFOLIO
ASSETS
SECTION 3. The term "Net Asset Value" of any Series or
Class shall mean that amount by which the assets of that
Series or Class exceed its liabilities, all as determined by
or under the direction of the Trustees. Such value per Share
shall be determined separately for each Series or Class of
Shares and shall be determined on such days and at such
times as the Trustees may determine. Such determination
shall be made with respect to securities for which market
quotations are readily available, at the market value of
such securities; and with respect to other securities and
assets, at the fair value as determined in good faith by the
Trustees, provided, however, that the Trustees, without
Shareholder approval, may alter the method of 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 its powers and
duties under this Section 3 with respect to appraisal of
assets and liabilities. At any time, the Trustees may cause
the value per Share last determined to be determined again
in a similar manner and may fix the time when such
redetermined value shall become effective.
SUSPENSION OF THE RIGHT OF REDEMPTION
SECTION 4. 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. In the event that
any Series is divided into Classes, the provisions of this
Section, to the extent applicable as determined in the
discretion of the Trustees and consistent with applicable
law, may be equally applied to each such Class.
REDEMPTION OF SHARES
SECTION 5. The Trustees may require Shareholders to redeem
Shares for any reason under terms set by the Trustees,
including, but not limited to, (i) the determination of the
Trustees that direct or indirect ownership of Shares of any
Series has or may become concentrated in such Shareholder to
an extent that would disqualify any Series as a regulated
investment company under the Internal Revenue Code of 1986,
as amended (or any successor statute thereto), (ii) the
failure of a Shareholder to supply a tax identification
number if required to do so, or (iii) the failure of a
Shareholder to pay when due for the purchase of Shares
issued to him. The redemption shall be effected at the
redemption price and in the manner provided in this Article
X.
The holders of Shares shall upon demand disclose to the
Trustees in writing such information with respect to direct
and indirect ownership of Shares as the Trustees deem
necessary to comply with the provisions
of the Internal Revenue Code, or to comply with the
requirements of any other taxing authority.
ARTICLE XI
LIMITATION OF LIABILITY AND INDEMNIFICATION
LIMITATION OF LIABILITY
SECTION 1. 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
shall not be responsible for or liable in any event for
neglect or wrongdoing of them or any officer, agent,
employee, or investment adviser of the Trust, but nothing
contained herein shall protect any Trustee 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 OF COVERED PERSONS
SECTION 2.
(a) Subject to the exceptions and limitations contained in
Section
(b) below:
(i) every person who is, or has been, a Trustee or officer
of the
Trust (hereinafter referred to as "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 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 2 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 2; provided, however,
that either (i) such Covered Person shall have provided
appropriate security for such undertaking; (ii) the Trust is
insured against losses arising out of any such advance
payments; or (iii) either a majority of the Trustees who are
neither interested persons of the Trust nor parties to the
matter, or independent legal counsel in a written opinion,
shall have determined, based upon a review of readily
available facts (as opposed to a trial-type inquiry or full
investigation), that there is reason to believe that such
Covered Person will be found entitled to indemnification
under this Section 2.
INDEMNIFICATION OF SHAREHOLDERS
SECTION 3. In case any Shareholder or former Shareholder
of 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 XII
MISCELLANEOUS
TRUST NOT A PARTNERSHIP, ETC.
SECTION 1. It is hereby expressly declared that a trust is
created hereby and not a partnership, joint stock
association, corporation, bailment, or any form of a legal
relationship other than a trust. No Trustee hereunder shall
have any power to personally bind either the Trust's
officers or any Shareholder. All persons extending credit
to, contracting with, or having any claim against the Trust
or the Trustees shall look only to the assets of the
appropriate Series for payment under such credit, contract,
or claim; and neither the Shareholders nor the Trustees, nor
any of their agents, whether past,
present, or future, shall be personally liable therefor.
Nothing in this Declaration of Trust shall protect a Trustee
against any liability to which the Trustee would otherwise
be subject by reason of willful misfeasance, bad faith,
gross negligence, or reckless disregard of the duties
involved in the conduct of the office of Trustee hereunder.
TRUSTEES' GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR
SURETY
SECTION 2. The exercise by the Trustees of their powers
and discretions hereunder in good faith and with reasonable
care under the circumstances then prevailing, shall be
binding upon everyone interested. Subject to the provisions
of Section 1 of this Article XII and to Article XI, 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 Section 1 of this Article XII and to Article
XI, shall be under no liability for any act or omission in
accordance with such advice or for failing to follow such
advice. The Trustees 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
of the Trust for a period not exceeding sixty (60) days
preceding the date of any meeting of Shareholders, or the
date for the payment of any dividends, or the date for the
allotment of rights, or the date when any change or
conversion or exchange of Shares shall go into effect; or in
lieu of closing the stock transfer books as aforesaid, the
Trustees may fix in advance a date not exceeding sixty (60)
days preceding the date of any meeting of Shareholders, or
the date for payment of any 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, as a
record date for the determination of the Shareholders
entitled to notice of, and to vote at, any such meeting, or
entitled to receive payment of any such dividend, or to any
such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of
Shares, and in such case such Shareholders and only such
Shareholders as shall be Shareholders of record on the date
so fixed shall be entitled to such notice of, and to vote
at, such meeting, or to receive payment of such dividend, or
to receive such allotment or rights, or to exercise such
rights, as the case may be, notwithstanding any transfer of
any Shares on the books of the Trust after any such record
date fixed or aforesaid.
DURATION; TERMINATION OF TRUST, A SERIES OR A CLASS;
MERGERS, ETC.
SECTION 4.1. DURATION. The Trust shall continue without
limitation
of time, but subject to the provisions of this Article XII.
SECTION 4.2. TERMINATION OF THE TRUST, A SERIES OR A
CLASS.
(a) Subject to applicable Federal and state law, the Trust
or any
Series or Class thereof may be terminated:
(i) by Majority Shareholder Vote of the Trust, each Series
affected,
or each Class affected, as the case may be; or
(ii) without the vote or consent of Shareholders by a
majority of
the Trustees either at a meeting or by written consent.
The Trustees shall provide written notice to the affected
Shareholders of a termination effected under clause (ii)
above. Upon the termination of the Trust or the Series or
Class,
(i) the Trust or the Series or Class shall carry on no
business
except for the purpose of winding up its affairs;
(ii) the Trustees shall proceed to wind up the affairs of
the Trust or the Series or Class, and all of the powers of
the Trustees under this Declaration of Trust shall continue
until the affairs of the Trust shall have been wound up,
including the power to fulfill or discharge the contracts of
the Trust or the Series or Class thereof; collect its
assets; sell, convey, assign, exchange, transfer, or
otherwise dispose of all or any part of the remaining Trust
property or Trust property allocated or belonging to such
Series or Class to one or more persons at public or private
sale for consideration that may consist in whole or in part
of cash, securities, or other property of any kind;
discharge or pay its liabilities; and do all other acts
appropriate to liquidate its business; provided that any
sale, conveyance, assignment, exchange, transfer, or other
disposition of all or substantially all the Trust property
or Trust property allocated or belonging to such Series or
Class (other than as provided in (iii) below) shall require
Shareholder approval in accordance with Section 4.3 below;
and
(iii) after paying or adequately providing for the payment
of all liabilities, and upon receipt of such releases,
indemnities, and refunding agreements as they deem necessary
for their protection, the Trustees may distribute the
remaining Trust property or the remaining property of the
terminated Series or Class, in cash or in kind or partly
each, among the Shareholders of the Trust or the Series or
Class according to their respective rights; and
(b) after termination of the Trust or the Series or Class
and distribution to the Shareholders as herein provided, a
majority of the Trustees shall execute and lodge among the
records of the Trust and file with the Secretary of The
Commonwealth of Massachusetts, as appropriate, an instrument
in writing setting forth the fact of such termination, and
the Trustees shall thereupon be discharged from all further
liabilities and duties with respect to the Trust or the
terminated Series or Class, and the rights and interests of
all Shareholders of the Trust or the terminated Series or
Class shall thereupon cease.
SECTION 4.3. MERGER, CONSOLIDATION, AND SALE OF ASSETS.
Subject to applicable Federal and state law and except as
otherwise provided in Section 4.4 below, the Trust or any
Series thereof may merge or consolidate with any other
corporation, association, trust, or other organization or
may sell, lease, or exchange all or substantially all of the
Trust property or Trust property allocated or belonging to
such Series, including its good will, upon such terms and
conditions and for such consideration when and as authorized
at any meeting of Shareholders called for such purpose by a
Majority Shareholder Vote of the Trust or affected Series,
as the case may be. Any such merger, consolidation, sale,
lease, or exchange shall be deemed for all purposes to have
been accomplished under and pursuant to Massachusetts law.
SECTION 4.4. INCORPORATION; REORGANIZATION. Subject to
applicable Federal and state law, the Trustees may without
the vote or consent of Shareholders cause to be organized or
assist in organizing a corporation or corporations under the
laws of any jurisdiction or any other trust, partnership,
limited liability company, association, or other
organization to take over all of the Trust property or the
Trust property allocated or belonging to such Series or to
carry on any business in which the Trust shall directly or
indirectly have any interest, and to sell, convey and
transfer the Trust property or the Trust property allocated
or belonging to such Series to any such corporation, trust,
limited liability company, partnership, association, or
organization in exchange for the shares or securities
thereof or otherwise, and to lend money to, subscribe for
the shares or securities of, and enter into any contracts
with any such corporation, trust, partnership, limited
liability company, association, or organization, or any
corporation, partnership, limited liability company, trust,
association, or organization in which the Trust or such
Series holds or is about to acquire shares or any other
interest. Subject to applicable Federal and state law, the
Trustees may also cause a merger or consolidation between
the Trust or any successor thereto and any such corporation,
trust, partnership, limited liability company, association,
or other organization. Nothing contained herein shall be
construed as requiring approval of Shareholders for the
Trustees to organize or assist in organizing one or more
corporations, trusts, partnerships, limited liability
companies, associations, or other organizations and selling,
conveying, or transferring the Trust property or a portion
of the Trust property to such organization or entities;
provided, however, that the Trustees shall provide written
notice to the affected Shareholders of any transaction
whereby, pursuant to this Section 4.4, the Trust or any
Series thereof sells, conveys, or transfers substantially
all of its assets to another entity or merges or
consolidates with another entity.
FILING OF COPIES, REFERENCES, AND HEADINGS
SECTION 5. The original or a copy of this instrument and
of each Declaration of Trust supplemental 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
supplemental Declaration of Trust 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 supplemental Declarations 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 supplemental Declaration of Trust. In this
instrument or in any such supplemental Declaration of Trust,
references to this instrument and all expressions like
"herein," "hereof" and "hereunder," shall be deemed to refer
to this instrument as amended or affected by any such
supplemental Declaration of Trust. 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, and the absence of a specific
reference herein to any such power, privilege, or action
shall not imply that the Trust may not exercise such power
or privilege or take such actions.
AMENDMENTS
SECTION 7. Except as specifically provided herein, the
Trustees may,
without shareholder vote, amend or otherwise supplement this
Declaration of Trust by making an amendment, a Declaration
of Trust supplemental hereto or an amended and restated
Declaration of Trust.
Shareholders shall have the right to vote (a) on any
amendment that would affect their right to vote granted in
Section 1 of Article VIII; (b) on any amendment that would
alter the maximum number of Trustees permitted under Section
6 of Article IV; (c) on any amendment to this Section 7; (d)
on any amendment as may be required by law or by the Trust's
registration statement filed with the Commission; and (e) on
any amendment submitted to them by the Trustees. Any
amendment required or permitted to be submitted to
Shareholders that, as the Trustees determine, shall affect
the Shareholders of one or more Series or Classes shall be
authorized by vote of the Shareholders of each Series or
Class affected and no vote of shareholders of a Series or
Class not affected shall be required. Notwithstanding
anything else herein, any amendment to Article XI shall not
limit the rights to indemnification or insurance provided
therein with respect to action or omission of Covered
Persons prior to such amendment.
FISCAL YEAR
SECTION 8. The fiscal year of the Trust shall end on a
specified date as set forth in the Bylaws, if any, provided,
however, that the Trustees may, without Shareholder
approval, change the fiscal year of the Trust.
USE OF THE WORD "FIDELITY"
SECTION 9. Fidelity Management & Research Company ("FMR")
has consented to the use by any Series of the Trust of the
identifying word "Fidelity" in the name of any Series of the
Trust at some future date. Such consent is conditioned upon
the employment of FMR or a subsidiary or affiliate thereof
as investment adviser of each Series of the Trust. As
between the Trust and itself, FMR controls the use of the
name of the Trust insofar as such name contains the
identifying word "Fidelity." FMR may from time to time use
the identifying word "Fidelity" in other connections and for
other purposes, including, without limitation, in the names
of other investment companies, corporations, or businesses
that it may manage, advise, sponsor or own or in which it
may have a financial interest. FMR may require the Trust or
any Series thereof to cease using the identifying word
"Fidelity" in the name of the Trust or any Series thereof if
the Trust or any Series thereof ceases to employ FMR or a
subsidiary or affiliate thereof as investment adviser.
Provisions in Conflict with Law or Regulations
SECTION 10. (a) The provisions of this Declaration of
Trust are severable, and, if the Trustees shall determine,
with the advice of counsel, that any of such provisions is
in conflict with the 1940 Act, the regulated investment
company provisions of the Internal Revenue Code or with
other applicable laws and regulations, the conflicting
provision shall be deemed never to have constituted a part
of this Declaration of Trust; provided, however, that such
determination shall not affect any of the remaining
provisions of this Declaration of Trust or render invalid or
improper any action taken or omitted prior to such
determination.
(b) If any provision of this Declaration Trust shall be
held invalid or unenforceable in any jurisdiction, such
invalidity or unenforceability shall attach only to such
provision in such jurisdiction and shall not in any manner
affect such provisions in any other jurisdiction or any
other provision of this Declaration of Trust in any
jurisdiction.
IN WITNESS WHEREOF, the undersigned, being all of the
Trustees of the Trust, have executed this instrument as of
the date set forth above.
/s/Edward C. Johnson 3d /s/Peter
S. Lynch Edward C. Johnson 3d*
Peter S. Lynch*
/s/Ralph F. Cox /s/William
O. McCoy
Ralph F. Cox William O.
McCoy
/s/Phyllis Burke Davis /s/Gerald
C. McDonough
Phyllis Burke Davis Gerald C.
McDonough
/s/Robert M. Gates /s/Marvin
L. Mann
Robert M. Gates Marvin L.
Mann
/s/E. Bradley Jones /s/Robert
C. Pozen
E. Bradley Jones Robert C.
Pozen*
/s/Donald J. Kirk /s/Thomas
R. Williams
Donald J. Kirk Thomas R.
Williams
*Interested Trustees
The business addresses of the
members of the Board of
Trustees are:
INTERESTED TRUSTEES (*):
82 Devonshire
Street
Boston, MA
02109
NON-INTERESTED
TRUSTEES:
82 Devonshire
Street
Boston, MA
02109
Mailing
Address:
P.O. Box 9235
Boston, MA 02205-
9235
FIDELITY
COMMONWEALTH
TRUST 82
Devonshire
Street Boston,
MA 02109
