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DECLARATION OF TRUST
OF
JOHN HANCOCK VARIABLE SERIES TRUST
DATED February 21, 1988
Filed City Clerk's Office
February 25, 1988 February 25, 1988
Secretary of State City of Boston
Corporation Division
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DECLARATION OF TRUST made on February 21, 1988, by Barry L. Shemin and
Henry D. Shaw ("Trustees") in the City of Boston, Commonwealth of Massachusetts.
WHEREAS, the Trustees desire to establish a trust to carry on the business
of an investment company; and
WHEREAS, the Trustees desire that Trust be authorized to issue shares of
beneficial interest in separate series, each series to be a Portfolio of the
Trust, as hereinafter provided; and
WHEREAS, the Trustees have agreed to manage all property coming into their
hands as trustees of a Massachusetts business trust as hereinafter provided.
NOW THEREFORE, the Trustees hereby declare that all money and property
contributed to the trust established hereunder and all proceeds thereof shall be
held and managed in trust for the pro rata benefit of the holders from time to
time, of the shares of beneficial interest in this Trust and subject to the
provisions hereof.
ARTICLE I
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NAME, TYPE, AND DEFINITIONS
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Section 1.1 Name. This Trust shall be known as John Hancock Variable Series
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Trust I and the Trustees shall conduct the business of the Trust under that name
or any other name or names as they may from time to time determine.
Section 1.2. Type of Trust. The Trust shall be of the type commonly termed
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a Massachusetts business trust. It shall be operated as an open-end management
investment company of the series type registered with the Commission under the
1940 Act.
Section 1.3. Definitions. Wherever used herein, unless otherwise
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specifically provided:
(a) "ByLaws" shall mean the ByLaws of the Trust as amended from time to
time;
(b) "Commission" shall have the meaning given it in the 1940 Act;
(c) "Declaration" shall mean this Declaration of Trust as amended or
restated from time to time;
(d) "1940 Act" refers to the Investment Company Act of 1940 and the Rules
and Regulations thereunder, and as, in effect, modified by exemptive
orders, all as amended from time to time;
(e) "Portfolio" refers to a series of Shares established and designated
under or in accordance with the provisions of Article III;
(f) "Shareholder" means a record owner of Shares;
(g) "Shares" refers to the transferable units of interest into which the
beneficial interest in the Trust and each Portfolio of the Trust (as
the context may require) shall be divided from time to time;
(h) "Trust" refers to the Massachusetts business trust established by this
Declaration, as amended from time to time, inclusive of each and every
Portfolio established hereunder; and
(i) "Trustees" refers to the Trustees of the Trust and of each Portfolio
hereunder named herein or elected in accordance with Article II.
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ARTICLE II
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TRUSTEES
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Section 2.1 Number of Trustees. The number of Trustees shall be not less
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than three nor more than nine. The initial Trustees shall be Barry L. Shemin,
Henry D. Shaw, Frank J. Zeo, Joseph Kiebala, Jr., and William H. Dykstra. The
Trustees serving as such, whether named above or hereafter becoming Trustees,
may increase or decrease the number of Trustees but not to a number less than
three at any time after the first annual meeting of the Shareholders. No
decrease in the number of Trustees shall have the effect of removing any Trustee
from office prior to the expiration of his term, but the number of Trustees may
be decreased in conjunction with the removal of a Trustee pursuant to Section
2.4.
Section 2.2 Election and Term. At the first meeting of Shareholders, the
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Shareholders shall elect Trustees to replace, or in addition to, those named
above. Each Trustee, whether named above or hereafter becoming a Trustee, shall
serve as a Trustee of the Trust until the next annual meeting of the
Shareholders and until the successor is elected and has qualified, unless such
Trustee sooner dies, resigns, or is removed. Trustees shall be elected at any
annual or special meeting of Shareholders by a majority of the votes.
Section 2.3 Resignation and Retirement. Any Trustee may resign his trust or
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retire as a Trustee at any time by delivering a written instrument to a meeting
of the Trustees or otherwise as specified in the Declaration. Any such
resignation or retirement shall take effect at the time specified in writing or,
if not specified, upon receipt.
Section 2.4 Removal. Any Trustee may be removed as a Trustee, either for
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cause or without cause, at any meeting of Shareholders by an affirmative vote or
a majority of the outstanding shares entitled to vote for the election of
Trustees.
Section 2.5 Vacancies. Subject to compliance with Sections 10(e) and 16(a)
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of the 1940 Act, any vacancies occurring among the Trustees other than by reason
of an increase in the number of Trustees may be filled by the affirmative vote
of a majority of the remaining Trustees, even though such a majority is less
than a quorum, provided that immediately after filling such vacancy, at least
two-thirds of the Trustees then remaining shall have been elected by the
Shareholders. In the event that at any time, other than the time preceding the
first annual meeting of Shareholders, less than a majority of the Trustees
holding office at that time were elected by the Shareholders, a meeting of the
Shareholders shall be held promptly and in any event within 60 days (unless the
Commission shall by order extend such period) for the purpose of electing
Trustees to fill any existing vacancies.
Section 2.6 Effect of Death, Resignation, etc. The death, resignation,
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retirement, removal or incapacity of the Trustees, or any one of them, shall not
operate to annul or terminate the Trust or to revoke or terminate any existing
agency or contract created or entered into pursuant to the terms of this
Declaration. Except to the extent required by the 1940 Act or under
circumstances which would justify his removal for cause, no person ceasing to be
a Trustee as a result of his death, resignation, retirement, removal or
incapacity (nor the estate of any such person) shall be required to make an
accounting to the Shareholders or remaining Trustees upon such cessation.
Section 2.7 Powers of Trustees. Subject to the provisions of this
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Declaration, the business of the Trust shall be managed by the Trustees, and
they shall have all powers necessary or convenient to carry out that
responsibility and the purpose of the Trust.
Without limiting the foregoing, the Trustees may: adopt bylaws not
inconsistent with this Declaration providing for the conduct of the business and
affairs of the Trust and may amend and repeal them to the extent that such
bylaws do not reserve that right to the Shareholders; establish Portfolios, each
such Portfolios to operate as a separate and distinct investment medium and with
separately defined investment objectives and policies and distinct investment
purposes; elect and remove officers and appoint and terminate agents and
consultants and hire and terminate employees, and provide for the compensation
of all of the foregoing; appoint from their own number, and
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terminate any one or more committees consisting of two or more Trustees, which
may, subject to the 1940 Act, exercise some or all of the power and authority of
the Trustees as the Trustees may determine; employ one or more advisers,
administrators, depositories, and custodians and may authorize any depository or
custodian to employ subcustodians or agents and to deposit all or any part of
such assets in a system or systems for the central handling of securities and
debt instrument, retain transfer, dividend, or accounting or Shareholder
servicing agents; provide for the distribution of Shares by the Trust through
one or more distributors, principal underwriters, or otherwise, and set record
dates or times for the determination of Shareholders with respect to various
matters; compensate or provide for the compensation of the Trustees, officers,
advisers, administrators, custodians, other agents, consultants, and employees
of the Trust or the Trustees on such terms as they deem appropriate; and in
general, delegate to any officer of the Trust, to any committee of the Trustees,
and to any employee, adviser, administrator, distributor, depository, custodian,
transfer and dividend disbursing agent, or any other agent or consultant of the
Trust such authority, powers, functions and duties as they consider desirable or
appropriate for the conduct of business and affairs of the Trust, including
without limitation the power and authority to act in the name of the Trust and
of the Trustees, to sign documents and to act as attorney-in-fact for the
Trustees.
Without limiting the foregoing and to the extent not inconsistent with the
1940 Act or other applicable law, the Trustees shall have power and authority
for and on behalf of the Trust and each separate Portfolio established
hereunder:
(a) Investments. To invest and reinvest cash and other property, and to
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hold cash or other property uninvested without in any event being bound or
limited by any present or future law or custom in regard to Investments by
Trustees;
(b) Disposition of Assets. To sell, exchange, lend, pledge, mortgage,
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hypothecate, write options on, and lease any or all of the assets of the
Trust;
(c) Ownership Powers. To vote or exercise any rights of ownership with
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respect to stock or other securities, debt instruments, or property, and to
execute and deliver proxies or powers of attorney to such person or persons
as the Trustees shall deem proper, granting to such person or persons such
power and discretion with relation to securities, debt instrument or
property as the Trustees shall deem proper;
(d) Subscription. To exercise powers and rights of subscription or
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otherwise which in any manner arise out of ownership of securities or debt
instruments;
(e) Form of Holding. To hold any security, debt instrument, or property in
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a form not indicating any trust, whether in bearer, unregistered or other
negotiable form, or in the name of the Trustees, the Trust, any Portfolio,
a custodian, a subcustodian, a depository, or otherwise;
(f) Reorganization, etc. To consent to or participate in any plan for the
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reorganization, consolidation, or merger of any corporation or issuer which
has or had any security or debt instrument held in the Trust, and to
consent to any contract, lease, mortgage, purchase, or sale of property by
such corporation or issuer, and to pay calls or subscriptions with respect
to any security or debt instrument held in the Trust;
(g) Voting Trusts, etc. To join with other holders of any securities or
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debt instruments to deposit any security or debt instrument with, or
transfer any security or debt Instrument to, a committee, depository, or
trustee, and to delegate to them such power and authority with relation to
any security or debt instrument as the Trustees shall deem proper, and to
pay such expenses and compensation of such committee, depository, or
trustee as the Trustees shall deem proper;
(h) Compromise. To compromise, arbitrate, or otherwise adjust claims in
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favor of or against the Trust or any matter in controversy, including but
not limited to claim for taxes;
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(i) Partnerships, etc. To enter into joint ventures, general or limited
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partnerships, and any other combinations or associations;
(j) Borrowing and Security. To borrow funds and to mortgage and pledge the
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assets of the Trust or any part thereof to secure obligations arising in
connection with such borrowing;
(k) Guarantees, etc. To endorse or guarantee the payment of any notes or
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other obligations of any person; to make contracts of guaranty or
suretyship, or otherwise assume liability for payment such contracts; and
to mortgage and pledge the Trust property or any part thereof to secure any
of or all such obligations;
(l) Insurance. To purchase and pay for entirely out of Trust Property
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insurance policies insuring the Shareholders, Trustees, officers, employees
and agents of the Trust, the investment adviser, the distributor and
dealers or independent contractors of the Trust against all claims and
liabilities of every nature arising by reason of holding or having held any
such position or by reason of any action taken or omitted by any such
person in such capacity, whether or not constituting negligence and whether
or not the Trust would have the power to indemnify such person against such
liability;
(m) Pensions. To establish and carry out pension, profit-sharing, share
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purchase, share bonus, savings, thrift and other retirement, incentive and
benefit plans for any Trustees, officers, employees or agents of the Trust;
(n) Indemnification. To the extent permitted by law and determined by the
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Trustees, to indemnify any person with whom the Trust has dealings,
including, without limitation, the Shareholders, the Trustees, the
officers, employees, and agents of the Trust.
(o) Dividends. To declare (from interest, dividends or other income
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received or accrued) dividends and distributions on the Shares and to
credit the dividends and distributions to the accounts of Shareholders, or
to accrue income to the account of Shareholders, on such dates as the
Trustees may determine (such dividends, distributions, or accruals being
payable in cash, property, or Shares at such intervals as the Trustees may
determine at any time in advance of such payment whether or not the amount
of such dividend of distribution can be calculated at the time of such
declaration); to establish record or payment dates for dividends or
distributions on any basis, including the power to establish a number of
record or payment dates subsequent to the declaration of any dividend or
distribution; and to establish the same payment date for any number of
dividends or distributions declared prior to such date.
(p) Other powers. - To take such other actions as are authorized or
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required to be taken by the Trustees to operate and carry on the business
of an investment company.
Section 2.8 Certain Contracts. Subject to compliance with the provisions of
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the 1940 Act, the Trustees may, at any time and from time to time, enter into
one or more contracts with any corporations, trusts, associations, partnerships,
limited partnerships, other type of organizations, or individuals (a
"Contracting Party"), to provide for the performance and assumption of some or
all of the following services, duties, and responsibilities set forth below as
the Trustees may determine appropriate:
(a) Advisory. Subject to the general supervision of the Trustees and
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in conformity with the stated policy of the Trustees with respect
to the investments of the Trust or of the assets belonging to any
Portfolio of the Trust (as that phrase is defined in
subsection (a) of Section 3.2), to manage such investments and
assets, make investment decisions with respect thereto, and to
place purchase and sale orders for portfolio transactions
relating to such investments and assets;
(b) Administration. Subject to the general supervision of the
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Trustees and in conformity with any policies of the Trustees with
respect to the operations of the Trust, to supervise all or any
part of the operations of the Trust, and to provide all or any
part of the administrative and clerical personnel, office space,
and office equipment and services appropriate for the efficient
administration and operations of the Trust;
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(c) Distribution. To distribute the Shares, of the Trust, to be
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principal underwriter of such Shares, and act as agent of the
Trust in the sale of Shares and the acceptance or rejection of
orders for the purchase of Shares;
(d) Custodian and Depository. To act as depository for and to
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maintain custody of the property of the Trust and accounting
records in connection therewith;
(e) Transfer and Dividend Disbursing Agency. To maintain records of
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the ownership of outstanding Shares, the issuance and redemption
and the transfer thereof, and to disburse any dividends declared
by the Trustees and in accordance with the policies of the
Trustees and the instructions of any particular Shareholder to
reinvest any such dividends;
(f) Shareholder Servicing. To provide service with respect to the
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relationship of the Trust and its Shareholders, records with
respect to Shareholders, their Shares, and similar matters; and
(g) Accounting. To handle all or any part of the accounting
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responsibilities, whether with respect to the Trust's properties,
Shareholders, or otherwise.
The same person may be the Contracting Party for some or all of the
services described above, not inconsistent with the standard of duty of and the
rights of indemnification as described in the 1940 Act. Nothing herein shall
prevent the Trust or a Contracting Party from entering into sub-contractual
arrangements relating to any of the matters referred to in Sections 2.8(a)
through (g) hereof.
Section 2.9. Payment of Trust Expenses and Compensation of Trustees.
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The Trustees are authorized to pay or to cause to be paid out of the
principal or income of the Trust, without limitation, certain expenses, fees,
charges, taxes, and liabilities incurred or arising in connection with the
Trust, including:
(a) the expenses associated with printing, producing, and mailing to
existing insurance contract owners annual and semi-annual reports
to Shareholders;
(b) the expenses associated with printing, producing, and mailing to
existing insurance contract owners proxy ballots and proxy
statements for annual meetings of Shareholders;
(c) custodian fees;
(d) auditing fees;
(e) investment advisory fees;
(f) all taxes, including issuance and transfer taxes and reserves for
taxes payable by the Trust to federal, state, or other
governmental agencies;
(g) interest payable on the Trust's borrowings; and
(g) extraordinary or non-recurring expenses, such as legal claims and
liabilities and litigation costs and indemnification payments by
the Trust in connection with legal claims and liabilities.
Section 2.10. Ownership of Assets of the Trust. Title to all the assets of
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the Trust shall at all times be considered to as vested in the Trustees.
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ARTICLE III
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SHARES OF BENEFICIAL INTEREST
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Section 3.1. Beneficial Interest. The beneficial interest in the Trust
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shall be divided into Shares without par value. Each Share shall represent an
equal proportionate interest in the Trust with each other Share and none shall
have priority or preference over another except as otherwise set forth herein.
The Trustees may from time to time divide or combine the Shares into a greater
or lesser number without thereby changing the proportionate beneficial interests
in the Trust. The number of shares of beneficial interest authorized hereunder
is unlimited.
Section 3.2. Portfolios. The Trustees shall have the exclusive authority,
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without the requirement of Shareholder approval, to establish and designate such
separate and distinct Portfolios, and to fix and determine the relative rights
and preferences as between the shares of the separate Portfolios.
Without limiting the authority of the Trustees set forth above to establish
and designate further Portfolios, the Trustees hereby establish and designate
five initial Portfolios: (i) the "Stock," (ii) the "Bond," (iii) the "Money
Market," (iv) the "Aggressive Stock," and (v) the "Total Return" Portfolios.
In addition, the Trustees are hereby expressly granted authority to change
the designation of any Portfolio, create additional Portfolios, or terminate any
Portfolios. Each Share of a Portfolio shall have equal rights with each other
Share of that Portfolio with respect to the assets of the Trust pertaining to
that Portfolio.
Section 3.3. Preferences and Rights. All persons who shall acquire Shares
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of a Portfolio shall acquire the Shares subject to the provisions of this
Declaration and the Bylaws as they may exist from time to time. The Shares of
the established Portfolios and any future Portfolio that may from time to time
be established by the Trustees (unless provided otherwise by the Trustees) shall
have the following relative preferences and rights:
(a) Preferences
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(1) Assets Belonging to Classes. All consideration received by the
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Trust for the issue or sale of Shares of a particular Portfolio and
all assets in which such consideration is invested or reinvested; all
income, earnings, profits, and proceeds thereof; and any funds or
payments derived from any reinvestment of such proceeds shall
irrevocably belong to that Portfolio for all purposes, subject only to
the rights of creditors, and shall be so recorded upon the books of
the Trust. Such consideration, assets, income, earnings, profits and
proceeds thereof, and any funds or payments derived from any
reinvestment of such proceeds, together with any General Items
allocated to that Portfolio as provided in the following sentence, are
herein referred to as "assets belonging to" that Portfolio. If there
are any assets, income, earnings, profits (and proceeds thereof),
funds, or payments which are not readily identifiable as belonging to
any particular Portfolio (collectively, "General Items"), such General
Items shall be allocated by the Trustees to any one or more of the
Portfolios established by the Trustees in such manner and on such
basis as the Trustees, in its sole discretion, deems fair and
equitable; and any General Items so allocated to a particular
Portfolio shall belong to that Portfolio.
(2) Liabilities Belonging to Class. The assets belonging to each
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particular Portfolio shall be charged with the liabilities of the
Trust with respect to that Portfolio and all expenses, costs, charges,
and reserves attributable to that Portfolio. Any general liabilities,
expenses, costs, charges, or reserves of the Trust which are not
readily identifiable as belonging to any particular Portfolio shall be
allocated by the Trustees to any one or more of the Portfolios
established by the Trustees. The liabilities, expenses, costs,
charges, and reserves allocated and so charged to a Portfolio are
herein referred to as "liabilities belonging to" that Portfolio.
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(b) Dividends and Distributions Rights.
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The Trustees may from time to time declare and pay dividends or
distributions in stock, property, or cash, on any or all Portfolios of stock.
The amount and payment of such dividends and distributions shall be wholly in
the discretion of the Trustees. After liabilities belonging to a particular
Portfolio have been provided for, dividends may be accrued daily or otherwise,
pursuant to a resolution or resolutions of the Trustees.
All dividends or distributions on Shares of a particular Portfolio shall be
paid only out of available assets determined by the Trustees as belonging to
such Portfolio. All dividends and distributions on Shares of a particular
Portfolio shall be distributed pro rata to the holders of that Portfolio in
proportion to the number of Shares of that Portfolio held by such holders at the
date and time established for the payment of such dividends or distributions,
except that, in connection with any dividend or distribution program or
procedure, the Trustees may determine that no dividend or distribution shall be
payable on Shares as to which the Shareholder's purchase order and/or payment
have not been received by the time or times established by the Trustees under
such program or procedure.
The Trust intends to qualify as a "regulated investment company" under the
Internal Revenue Code of 1986, or any successor or comparable statute thereto,
and regulations promulgated thereunder. Inasmuch as the computation of net
income and gains for federal income tax purposes may vary from the computation
thereof on the books of the Trust, the Trustees shall have the power, in their
sole discretion, to distribute in any fiscal year as dividends, including
dividends designated in whole or in part as capital gains distributions, amounts
sufficient, in the opinion of the Trustees, to enable the Trust to qualify as a
regulated investment company and to avoid liability of the Trust for federal
income tax that year. However, nothing in the foregoing shall limit the
authority of the Trustees to make distributions greater than the amount
necessary to qualify as a regulated investment company and to avoid liability of
the Trust for such tax. To the extent that a net capital loss for a fiscal year
in one Portfolio of Shares offsets net capital gains from one or more of the
other Portfolios, the amount to be deemed available for distribution to the
Portfolio or Portfolios with the net capital gain may be reduced by the amount
offset.
(c) Liquidation Rights.
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(i) Liquidation of Corporation. In the event of the liquidation
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or dissolution of the Trust or of any Portfolio, the
Shareholders of each Portfolio shall be entitled to receive,
as a group, the excess of the assets belonging to that
Portfolio over the liabilities belonging to that Portfolio.
The Shareholders of any Portfolio shall not be entitled to
any distribution upon liquidation of any other Portfolio.
The assets distributable to the Shareholders of any
particular Portfolio shall be distributed among the
Shareholders in proportion to the number of Shares of that
Portfolio held by them and recorded on the books of the
Trust.
(ii) Liquidation of Portfolio or Transfer of Assets Among
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Portfolios. The Trustees, by majority vote, may liquidate
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any Portfolio or transfer the assets of any Portfolio to any
other Portfolio. Upon any transfer, the Trust shall issue
Shares representing beneficial interests in the Portfolio to
which the assets were transferred in exchange for all Shares
of beneficial interests in the Portfolio from which the
assets were transferred. Such Shares shall be exchanged at
their respective net asset values.
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(d) Voting Rights. The holder of each Share of the Trust shall be entitled to
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one vote for each full Share, and a fractional vote for each fractional Share,
irrespective of the Portfolio, then standing in such holder's name on the books
of the Trust. On any matter submitted to a vote of Shareholders, all Shares of
the Trust then issued and outstanding and entitled to vote shall be voted in the
aggregate and not by Portfolio except:
(i) when otherwise expressly required by the 1940 Act or by statute,
Shares shall be voted by individual Portfolio and no aggregate vote
shall be required; and
(ii) only Shares of a particular Portfolio shall be entitled to vote on
matters which, in the judgment of the Trustees, concern only that
Portfolio.
Except as otherwise specifically provided by the 1940 Act, this
Declaration, or the Bylaws, all matters shall be decided by a vote of the
majority of the votes validly cast.
(e) Redemption Rights. Each holder of Shares of a particular Portfolio shall
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have the right to require the Trust to redeem all or any part of the Shares of
that Portfolio standing in the name of such holder on the books of the Trust at
the then current redemption price per share. The Trust shall redeem all Shares
tendered to it for redemption at the then current redemption price of such
Shares, subject to the right of the Trustees to suspend the right of redemption
of Shares stock of the Trust or postpone the date of payment of such redemption
price in accordance with provisions of applicable law. The redemption price of
Shares of the Trust shall be the net asset value as determined by, or under the
direction of, the Trustees in accordance with the provisions of applicable law,
less such redemption fee or other charge, as may be fixed by resolution of the
Trustees. Redemption shall be conditioned on the Trust having funds legally
available. Payment of the redemption price shall be made in cash by the Trust at
such time and in such manner as may be determined by the, Trustees, except
Shares of any Portfolio may be redeemed with the assets, other than cash, of the
Portfolio to which the it relates if the Trustees deem such action desirable.
(f) Conversion Rights. Subject to compliance with the requirements of the 1940
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Act, the Trustees shall have the authority to provide that holders of Shares of
any Portfolio shall have the right to convert their Shares into Shares of one or
more other Portfolios of Shares in accordance with such requirements and.
procedures as may be established by the Trustees.
Section 3.4. Other Provisions.
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(a) Fractional Shares. The Trust may issue Shares in fractional denominations to
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the same extent as its whole Shares, and Shares in fractional denominations
shall be Shares having, proportionate to the fractions represented, all the
rights of whole Shares. Wherever the words "Share" or "Shares" are used in this
Declaration or in the Bylaws, they shall be deemed to include fractions of
Shares.
(b) Net Asset Value Per Share. The net asset value per share of any Portfolio
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shall be the quotient obtained by dividing the value of the net assets of that
Portfolio, (the value of the assets belonging to that Portfolio less the
liabilities belonging to that Portfolio) by the total number of Shares
outstanding of that Portfolio, as determined by, or under the direction of, the
Trustees in accordance with generally accepted accounting principles and not
inconsistent with the 1940 Act.
The Trustees may determine to maintain the net asset value per share of any
Portfolio at a designated constant dollar amount and thus may adopt procedures,
not inconsistent with the 1940 Act, to declare, pay, and credit as dividends
daily the net income of the Trust attributable to that Portfolio. Such
procedures may provide that, in the event of any loss, each Shareholder shall be
deemed to have contributed to the capital of the Trust attributable to that
Portfolio his pro rata portion of the total number of Shares required to be
cancelled in order to permit the net asset value per Share of that Portfolio to
be maintained, after reflecting the loss, at the designated constant dollar
amount. Each Shareholder of the Trust shall be deemed to have agreed, by his
investment in any Portfolio with respect to which the Trustees shall have
adopted any such procedure, to make the contribution referred to in the
preceding sentence in the event of any such loss.
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(c) Equality. All Shares of each particular Portfolio shall represent an
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equal proportionate interest in the assets belonging to that Portfolio (subject
to the liabilities belonging to that portfolio), and each Share of any
particular Portfolio shall be equal to each other Share of that Portfolio. The
Trustees may from time to time divide or combine the Shares of any particular
Portfolio into a greater or lesser number of Shares of that Portfolio without
thereby changing the proportionate beneficial interest in the assets belonging
to that Portfolio or in any way affecting the rights of outstanding Shares of
any other Portfolio.
ARTICLE IV
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ISSUANCE OF STOCK
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Section 4.1. Issuance of Shares. The Trustees are authorized to issue and
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sell from time to time (without the necessity of offering to existing
Shareholders) all or any authorized but unissued Shares of the Trust or Shares
in the Trust's treasury, for cash or any other lawful consideration and on any
terms consistent with the provisions of law, this Declaration, and the Bylaws at
the time in force, provided, however, that in no event shall the Shares of the
Trust having a par value be issued or sold for a consideration less than the par
value of the Shares and, provided further, that in no event shall any Shares of
the Trust be issued or sold for a consideration (which shall be net to the Trust
after underwriting discounts or commissions) less in amount or value than the
net asset value of the Shares so issued or sold.
Section 4.2. Register of Shares. A register shall be kept at the principal
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office of the Trust or an office of the Transfer Agent which shall contain the
names and addresses of the Shareholders and the number of Shares held by them
respectively and a record of all transfers thereof. Such register shall be
conclusive as to who are the holders of the Shares and who shall be entitled to
receive dividends or distributions or otherwise to exercise or enjoy the rights
of Shareholders. No Shareholder shall be entitled to receive payment of any
dividend or distribution, nor to have notice given to him as herein or in the By
Laws provided, until he has given his address to the Transfer Agent or such
other officer or agent of the Trust as shall keep the register.
Section 4.3 Transfer of Shares. Shares shall be transferable, on the
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records of the Trust upon delivery to the Trust or the Transfer Agent of
appropriate evidence of assignment, transfer, succession, or authority to
transfer. Upon such delivery the transfer shall be recorded on the register of
the Trust. Until such record is made, the Trustees, the Transfer Agent, and the
officers, employees and agents of the Trust shall not be entitled or required to
treat the assignee or transferee of any Share as the absolute owner thereof for
any purpose, and accordingly shall not be bound to recognize any legal,
equitable, or other claim or interest in such Share on the part of any Person,
other than the holder of record, whether or not any of them shall have express
or other notice of such claim or interest.
ARTICLE V
---------
SHAREHOLDERS' VOTING POWERS AND MEETINGS
----------------------------------------
Section 5.1. Voting Powers. The Shareholders shall have power to vote only:
-------------
(a) for the election of Trustees;
(b) with respect to any investment advisory or management contract entered
into;
(c) with respect to any termination of the Trust;
(d) with respect to any amendment of this Declaration of Trust, except as noted
herein;
(e) with respect to any merger, consolidation or sale of assets of the Trust;
(f) with respect to incorporation on the Trust;
(g) to the same extent as the stockholders of a Massachusetts business
corporation as to whether or not a court action, proceeding or claim should
or should not be brought or maintained derivatively or as a class action on
behalf of the Trust or the Shareholders; and
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(h) with respect to such additional matters relating to the Trust as may
be required by this Declaration or the ByLaws or by reason of the
registration of the Trust or the Shares with the Commission or any
State or by any applicable law or any regulation or order of the
Commission or any State or as the Trustees may consider necessary or
desirable.
Each whole share shall be entitled to one vote as to any matter on which
Shareholders are entitled to vote and each fractional Share shall be entitled to
a proportionate fractional vote. A majority of the Shares voted shall decide any
questions, except when a different vote is specified by applicable law, any
provision of the Bylaws or this Declaration. 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
(including the right to authorize an amendment to this Declaration) and may take
any action required by law, the ByLaws, or this Declaration to be taken by
Shareholders. The ByLaws may include further provisions for Shareholders' votes
and related matters.
Section 5.2. Meetings. No annual or special meetings of Shareholders are
--------
required. Annual meetings may be held on the date fixed in the ByLaws for the
purpose of reelecting Trustees or electing new Trustees to succeed those
Trustees in office or to fill vacancies, ratifying or rejecting the independent
public accountants selected for the current year, and transacting any other
business as may be specified by the Trustees.
Special meetings of Shareholders may be called from time to time by the
Trustees, or otherwise as provided in the ByLaws, for the purpose of taking
action upon any matter requiring the vote or authority of the Shareholders as
herein provided or upon any other matter deemed by the Trustees to be necessary
or desirable. A special meeting of Shareholders may also be called at any time
upon the written request of a holder or the holders of not less than 25% of all
of the Shares entitled to be voted at such meeting, provided that the
--------
Shareholder or Shareholders requesting such meeting shall have paid to the Trust
the reasonably estimated cost of preparing and mailing the notice thereof, which
the Secretary shall determine and specify to such Shareholder or Shareholders.
Written notice of any annual or special meeting of Shareholders shall be
given by the Trustees personally or by mailing such notice at least ten days
before such meeting, postage prepaid, stating the time, place and purpose of the
meeting, to each Shareholder at the Shareholder's address as it appears on the
records of the Trust.
Section 5.3. Action Without a Meeting. Any action which may be taken by
------------------------
Shareholders may be taken without a meeting if such proportion of Shareholders
as is required to vote for approval of the matter by law, the Declaration, or
the Bylaws consents to the action in writing and the written consents are filed
with the records of Shareholders' meetings. Such consents shall be treated for
all purposes as a vote taken at a Shareholders' meeting.
Section 5.4. Record Date. The Trustees may fix, in advance, a date as the
-----------
record date for the purpose of determining Shareholders entitled to notice of
any Shareholders' meeting, to receive payment of any dividend or distribution,
or to make a determination of Shareholders for any other proper purpose. Such
date shall be not more than sixty-five and, in the case of a Shareholders'
meeting, not less than ten days prior to the date on which the particular action
requiring such determination of Shareholders is to be taken.
Section 5.5. Quorum and Required Vote. A majority of the Shares entitled to
------------------------
vote shall be a quorum for the transaction of business at a Shareholders
meeting, but any lesser number shall be a sufficient quorum to vote for
adjournment. Any adjourned session or sessions may be held within a reasonable
time after the date set for the original meeting without the necessity of
further notice. A majority of the Shares voted, at a meeting of which a quorum
is present, shall decide any questions except when a different vote is required
or permitted by this Declaration, the ByLaws, any provision of the 1940 Act, or
other applicable law.
Section 5.6. Inspection of Records. The records of the Trust shall be open
---------------------
to inspection by Shareholders to the same extent as is permitted stockholders of
a Massachusetts business corporation under the Massachusetts Business
Corporation Law.
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Section 5.7. Additional Provisions. The Bylaws may include further
---------------------
provisions for Shareholders votes and meetings and related matters not
inconsistent with the provisions hereof.
ARTICLE VII
-----------
LIMITATION OF LIABILITY; INDEMNIFICATION
----------------------------------------
Section 6.1. No Personal Liability of Shareholders, Trustees, Etc. No
----------------------------------------------------
Shareholder shall be subject to any personal liability whatsoever in connection
with Trust Property or the acts, obligations or affairs of the Trust. All
Persons extending credit to, contracting with or having any claim against the
Trust shall look only to the assets of the Trust 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, shall be
personally liable therefor.
Section 6.2. Execution of Documents; Notice; Apparent Authority. Every
--------------------------------------------------
note, bond, contract, instrument, certificate, or any undertaking executed by or
on behalf of the Trust or the Trustees in connection with the Trust shall be
deemed to have been executed only in his, her or their capacity as Trustee or
Trustees, and such Trustees or Trustee shall not 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 this
Declaration is on file with the Secretary of State of the Commonwealth of
Massachusetts and shall state that the obligations of such instruments are not
binding upon any of the Trustees, Shareholders, officers, employees, or agents
of the Trust individually but are binding only upon the assets and property of
the Trust. The omission of such statement shall not operate to bind any
Trustees, Shareholders, officers, employees or agents of the Trust individually.
No purchaser, lender, transfer agent or other person dealing with the Trustees
or any officer, employee, or agent of the Trust shall be bound to make any
inquiry concerning the validity of any transaction purporting to be made by the
Trustees or by such officer, employee, or agent.
Section 6.3. Indemnification of Trustees. The Trust shall indemnify any
---------------------------
Trustee made a party to any proceeding by reason of service in that capacity, if
the Trustee (a) acted in good faith and (b) reasonably believed, (l) in the case
of conduct in the Trustee's official capacity with the Trust, that the conduct
was in the best interest of the Trust and (2) in all other cases, that the
conduct was at least not opposed to the best interests of the Trust, and (c) in
the case of any criminal proceeding, the Trust shall indemnify any Trustee if
the Trustee acted in good faith and had no reasonable cause to believe that the
conduct was unlawful.
Indemnification shall be against judgments, penalties, fines, settlements,
and reasonable expenses actually incurred by the Trustee in connection with the
proceeding. However, if the proceeding was one by, or in the right of the Trust,
indemnification may be made only against reasonable expenses and may not be made
in respect of any proceeding in which the Trustee shall have been adjudged to be
liable to the Trust. The termination of any proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent
creates a rebuttable presumption that the Trustee did not meet the requisite
standard of conduct set forth in this Section.
Section 6.4. Disabling Conduct. Nothing contained in the Article shall be
-----------------
construed 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 duties involved in the conduct of his office (hereinafter called
"Disabling Conduct"). The means for determining whether indemnification shall be
made shall be
(1) a final decision on the merits by a court or other body before whom the
proceeding was brought that the person to be indemnified was not liable by
reason of Disabling Conduct, or
(2) in the absence of such a decision, a reasonable determination, based
upon a review of the facts that such person was not liable by reason of the
Disabling Conduct, made
(a) by the vote of a majority of a quorum of the Trustees who are
neither "interested persons" of the Trust (as defined in the 1940
Act) nor parties to the proceeding or
(b) by an independent legal counsel in a written opinion.
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Section 6.5. No Indemnification of Trustee Liable for Improper Personal
----------------------------------------------------------
Benefits. A Trustee may not be indemnified under Section 6.3 in respect of any
--------
proceeding charging improper personal benefit to the Trustee whether or not
involving action in the Trustee's official capacity, in which the Trustee was
adjudged to be liable on the basis that personal benefit was improperly
received.
Section 6.6. Required Indemnification Against Expenses Incurred in
-----------------------------------------------------
Successful Defense. Unless otherwise limited by this Declaration, a trustee who
------------------
has been successful on the merits or otherwise, in the defense of any proceeding
referred to in Section 6.3 shall be indemnified against reasonable expenses
incurred by the Trustee in connection with the proceeding.
Unless otherwise limited by this Declaration, if a court of appropriate
jurisdiction shall so order, upon application of a Trustee and such notice as
the court shall require, the Trust shall pay indemnification in the following
circumstances:
(i) If the court determines the Trustee is entitled to reimbursement
under the first paragraph of this Section, the Trustee shall, be
entitled to recover the expenses of securing such reimbursement;
or
(ii) If the court determines that the Trustee is fairly and reasonably
entitled to indemnification in view of all the relevant
circumstances, whether or not the Trustee has met the standards
of conduct set forth in Section 6.3 or has been adjudged liable
under the circumstances described in Section 6.4, the Trust shall
pay such indemnification as the court shall deem proper. However,
indemnification with respect to any proceeding by or in the right
of the Trust or in which liability shall have been adjudged in
the circumstances described in Section 6.4 shall be limited to
expenses.
Unless otherwise limited by this Declaration, a court of appropriate
jurisdiction may be the same court in which the proceeding involving the
Trustee's liability took place.
Section 6.7. Determination That Indemnification is Proper. Indemnification
--------------------------------------------
under Section 6.3 may not be made by the Trust unless authorized in the specific
case after a determination has been made that indemnification of the Trustee is
permissible in the circumstances because the Trustee has met the standard of
conduct set forth in Section 6.3.
Such determination shall be made:
(1) By the Board of Trustee by a majority vote of a quorum consisting
of Trustees not, at the time, parties to the proceeding, or, if
such a quorum cannot be obtained, then by a majority vote of a
committee of the Board consisting solely of two or more Trustees
not, at the time, parties to such proceeding and who were duly
designated to act in the matter by a majority vote of the full
Board in which the designated Trustees who are parties may
participate;
(2) By special legal counsel selected by the Board of Trustees or a
committee of the Board by vote as set forth in (1), above, or, if
the requisite quorum of the full Board cannot be obtained
therefor and the committee cannot be established, by a majority
vote of the full Board in which Trustees who are parties may
participate; or
(3) By the shareholders.
Authorization of indemnification and determination as to reasonableness of
expenses shall be made in the same manner as the determination that
indemnification is permissible. However, if the determination that
indemnification is permissible is made by special legal counsel, authorization
of indemnification and determination as to reasonableness of expenses shall be
made in the manner specified in subsection (2), above, for selection of such
counsel.
Shares held by Trustees who are parties to the proceeding may not be voted
on the subject matter under this Section.
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Section 6.8. Payment of Expenses in Advance of Final Disposition of Action.
-------------------------------------------------------------
Reasonable expenses incurred by a Trustee or officer who is a party to a
proceeding, may be paid or reimbursed by the Trust in advance of the final
disposition of the proceeding, after a determination that the facts then known
to those making the determination would not preclude indemnification under this
Article, upon receipt by the Trust of: (a) a written affirmation by the Trustee
of the Trustee's good faith belief that the standard of conduct necessary for
indemnification by the Trust as authorized in this Article has been met; and (b)
a written undertaking by or on behalf of the Trustee to repay the amount if it
shall ultimately be determined that the standard of conduct has not been met.
The undertaking required by (b), above, shall be an unlimited general
obligation of the Trustee but need not be secured and may be accepted without
reference to financial ability to make the repayment.
Determinations and authorizations of payments under this Section shall be
in the manner specified in Section 6.7.
Section 6.9. Advancement of Legal Fees. Nothing contained in this
-------------------------
Declaration shall be construed to permit the advancement of legal expenses for
the defense of a proceeding brought by the Trust or its shareholders against a
Trustee or officer of the Trust unless an undertaking is furnished by or on
behalf of such person to repay the advance (unless it is ultimately determined
that he is entitled to indemnification) and such person complies with at least
one of the following conditions: (1) he shall provide a security for his
undertaking; (2) the Trust shall be insured against losses arising by reason of
any lawful advances; or (3) a majority of a quorum of the Board of Trustees who
are neither interested persons (as defined in the 1940 Act) nor parties to the
proceeding, or an independent legal counsel in a written opinion, shall
determine, based on a review of readily available facts, that there is reason to
believe that such person ultimately will be found entitled to indemnification.
Section 6.10. Validity of Indemnification Provision. A provision for the
-------------------------------------
Trust to indemnify a Trustee who is made a party to a proceeding, whether
contained in this Declaration, the ByLaws, a resolution of the Shareholders or
the Trustees, an agreement or otherwise, except as contemplated by Section 6.14,
below, is not valid unless consistent with this Article or, to the extent that
in indemnity under this Article is limited by the Declaration, consistent with
the Declaration.
Section 6.11. Reimbursement of Trustee's Expenses Incurred While Appearing
------------------------------------------------------------
as Witness. This Article does not limit the Trust's power to pay or reimburse
----------
expenses incurred by a Trustee in connection with an appearance as a witness in
a proceeding at a time when the Trustee has not been made a defendant or
respondent in the proceeding.
Section 6.12. Director's Service to Employee Benefit Plan. For purposes of
-------------------------------------------
this Article:
(1) the Trust shall be deemed to have requested a Trustee to serve an
employee benefit plan where the performance of the Trustee's duties to the Trust
also imposes duties on, or otherwise involves services by the Trustee to the
plan or participants or beneficiaries of the plan;
(2) Excise taxes assessed on a Trustee with respect to an employee benefit
plan pursuant to applicable law shall be deemed fines; and
(3) Action taken or omitted by the Trustee with respect to an employee
benefit plan in the performance of the Trustee's duties for a purpose reasonably
believed by the Trustee to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose which is not
opposed to the best interests of the Trust.
Section 6.13. Officer, Employee, or Agent. Unless otherwise limited by the
---------------------------
Declaration, the Trust may, to the extent specifically approved by resolution of
the Board of Trustees, indemnify or advance expenses to any officer or employee,
to the same extent, as set forth in this Article 6 with respect to Trustees.
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<PAGE>
Section 6.14. Insurance. The Trust may purchase and maintain insurance on
---------
behalf of any person who is or was a Trustee, officer, employee, or agent of the
Trust, is or was serving at the request of the Trust as a director, officer,
partner, trustee, employee, or agent of a foreign or domestic corporation,
partnership, joint venture, trust, other enterprise, or employee benefit plan
against any liability asserted against and incurred by such person in any such
capacity or arising out of such person's position, whether or not the Trust
would have the power to indemnify against liability under the provisions of this
Article.
Section 6.15. Report of Indemnification to Shareholders. Any
-----------------------------------------
indemnification of, or advance of expenses to a Trustee in accordance with this
Article, if arising out of a proceeding by or in the right of the Trust, shall
be reported in writing to the Shareholders with the notice of the next
Shareholders' meeting or prior to the meeting.
Section 6.16. Indemnification of Shareholders. In case any Shareholder or
-------------------------------
former Shareholder shall be held to be personally liable solely by reason of his
or her being or having been a Shareholder and not because of acts or omissions
or for some other reason, the Shareholder or former Shareholder (or his or her
heirs, executors, administrators, or other legal representatives or, in the case
of a corporation or other entity, its' successor) shall be held harmless, out of
the assets of the Trust, from and indemnified against all loss and expense,
including legal expenses reasonably incurred, arising from such liability. The
rights accruing to a Shareholder under this Section 6.4 shall not exclude any
other right to which such Shareholder may be lawfully entitled, nor shall
anything contained herein restrict the right of the Trust to indemnify or
reimburse a Shareholder in any appropriate situation even though not
specifically provided herein.
Section 6.17. Definitions. As used in this Article, "Trustee" includes any
-----------
former Trustee or any former director or trustee of a predecessor of the Trust;
"officer" includes any former officer of the Trust or of any predecessor of the
Trust; "Trust" includes any predecessor of the Trust; "expenses" includes,
without limitation, legal expenses; "party" includes any person who was, is, or
is threatened to be made a named defendant or respondent in a proceeding; and
"proceeding" means any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative.
ARTICLE VIII
------------
DURATION; TERMINATION OF TRUST;
AMENDMENT; MERGERS, ETC.
------------------------
Section 7.1. Duration and Termination.
------------------------
(a) Unless terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be terminated by the affirmative vote of
at least two-thirds of the Shares outstanding or, when authorized by a
majority vote of the Shareholders, by an instrument in writing signed by a
majority of the Trustees. Upon the termination of the Trust,
(i) The Trust 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
and all of the powers of the Trustees under this Declaration
shall continue until the affairs of the Trust shall have been
wound up, including the power to fulfill or discharge the
contracts of the Trust; collect its assets; sell, convey, assign,
exchange, transfer, or otherwise dispose of all of the remaining
Trust Property; 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, that
requires Shareholder approval shall receive the approval so
required.
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<PAGE>
(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, in cash
or in kind or partly each, among the Shareholders according to
their respective rights.
(b) After termination of the Trust and distribution to the Shareholders as
herein provided, a majority of the Trustees shall execute and lodge among
the records of the Trust an instrument in writing setting forth the fact of
such termination, and the Trustees shall thereupon be discharged from all
further liabilities and duties hereunder, and the rights and interests of
all Shareholders shall thereupon cease.
Section 7.2. Amendment Procedure.
-------------------
(a) This Declaration may be amended from time to time by an instrument in
writing signed by a majority of the Trustees when authorized by a majority
vote the Shareholders, provided that any amendment having the purpose of
--------
changing the name of the Trust or of supplying any omission, curing any
ambiguity or curing, correcting, or supplementing any defective or
inconsistent provision shall not require authorization by the Shareholders.
Nothing contained in this Declaration shall permit the amendment of this
Declaration to impair the exemption from personal liability of the
Shareholders, Trustees, officers, employees, and agents of the Trust or to
permit assessments upon Shareholders.
(b) A certificate signed by a majority of the Trustees setting forth an
amendment and reciting that it was duly adopted, or a copy of this
Declaration as amended, executed by a majority of the Trustees, shall be
conclusive evidence of such amendment when lodged among the records of the
Trust.
(c) Notwithstanding any other provision hereof, until such time as a
Registration Statement under the Securities Act of 1933, as amended,
covering the first public offering of securities of the Trust shall become
effective, this Declaration may be terminated or amended in any respect by
the affirmative vote of a majority of the Trustees or by an instrument
signed by majority of the Trustees.
Section 7.3. Merger, Consolidation and Sale of Assets. The Trust 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, including its good will, upon such terms and conditions and for
such consideration when and as authorized at any Shareholders' meeting called
for the purpose by a majority vote of the Shareholders.
Section 7.4. Incorporation. With the approval of a majority vote of the
-------------
Shareholders, the Trustees may organize or assist in organizing under the laws
of any jurisdiction a corporation or corporations or any other trust,
partnership, association, or other organization to take over all of the Trust
property or to carry on any business in which the Trust shall directly or
indirectly have any interest. The Trustees may sell, convey, and transfer the
Trust Property to any such corporation, trust, partnership, association, or
other organization in exchange for the shares or securities thereof, and enter
into any contract with any such corporation, trust, partnership, association, or
other organization. The Trustees may also cause a merger or consolidation
between the Trust or any successor thereto and any such corporation, trust,
partnership, association or other organization. Nothing contained herein shall
be construed as requiring approval of Shareholders for the Trustees to organize
or assist in organizing one or more corporations, trusts, partnerships,
associations, or other organizations and selling, conveying or transferring less
than all or substantially all of the Trust property to such organization or
entities.
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ARTICLE IX
----------
REPORTS TO SHAREHOLDERS
-----------------------
The Trustees shall at least semi-annually submit to the Shareholders a
written financial report of the transactions of the Trust, including financial
statements which shall at least annually be accompanied by a report thereon of
independent public accountants.
ARTICLE X
---------
MISCELLANEOUS
-------------
Section 9.1. Filing. This Declaration and any amendment hereto shall be
------
filed with the Secretary of the Commonwealth of Massachusetts and in such other
places as may be required under the laws of the Commonwealth of Massachusetts
and may also be filed or recorded in such other places as the Trustees deem
appropriate. Unless any such amendment sets forth some later time for the
effectiveness of such amendment, such amendment shall be effective upon its
filing with the Secretary of the Commonwealth of Massachusetts. A restated
Declaration, integrating into a single instrument all of the provisions of this
Declaration which are then in effect and operative, may be executed from time to
time by a majority of the Trustees and shall, upon filing with the Secretary of
the Commonwealth of Massachusetts, be conclusive evidence of all amendments
contained therein and may hereafter be referred to in lieu of the original
Declaration and the various amendments thereto.
Section 9.2. Governing Law. This Declaration is executed by the Trustees
-------------
and delivered in the Commonwealth of Massachusetts. The rights of all parties
and the validity and construction of every provision hereof shall be subject to
and construed according to the laws of the Commonwealth.
Section 9.3 Counterparts. This Declaration may be simultaneously executed
------------
in several counterparts, each of which shall be deemed to be an original, and
such counterparts, together, shall constitute one and the same instrument, which
shall be sufficiently evidenced by any such original counterpart.
Section 9.4 Reliance by Third Parties. Any certificate executed by an
-------------------------
individual who, according to the records of the Trust, appears to be a Trustee
hereunder, certifying to: (a) the number or identity of Trustees or
Shareholders, (b) the due authorization of the execution of any instrument or
writing, (c) the form of any vote passed at a meeting of Trustees or
Shareholders, (d) the fact that the number of Trustees or Shareholders present
at any meeting or executing any written instrument satisfies the requirements of
this Declaration, (e) the form of any Bylaws adopted by or the identity of any
officers elected by the Trustees or (f) the existence of any fact or facts which
in any manner relate to the affairs of the Trust, shall be conclusive evidence
as to the matters so certified in favor of any person dealing with the Trustees
and their successors.
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<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this instrument this 21st
day of February, 1988.
/s/ Barry L. Shemin
----------------------------
Barry L. Shemin
/s/ Henry D. Shaw
-----------------------------
Henry D. Shaw
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. BOSTON, MASSACHUSETTS
February 21, 1988
Then personally appeared the above-named Barry L. Shemin and Henry D. Shaw,
who severally acknowledged the foregoing instrument to be their free act and
deed.
Before me
/s/ Susanne Concannon
-----------------------------
Notary Public
My commission expires:
12/17/93 [SEAL]
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