SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
December 31,1995
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Date of Report (Date of earliest event reported)
THE ST. LAWRENCE SEAWAY CORPORATION
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(Exact name of registrant as specified in its charter)
INDIANA
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(State or other jurisdiction of incorporation)
0-2040 35-1038443
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(Commission File Number) (IRS Employer Identification No.)
320 N. Meridian Street
Suite 818, Indianapolis, IN 46204
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(Address of principal executive offices) (Zip Code)
(317) 639-5292
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(Registrant's telephone number, including area code)
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(Former name or former address, if changed since last report)
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Item 5. Other Events.
On December 31, 1995, The St. Lawrence Corporation (the "Registrant")
organized a wholly-owned subsidiary under the name of The St. Lawrence Fund (the
"Subsidiary") as a Massachusetts business trust. The Registrant purchased
100,000 shares of beneficial interest in the Subsidiary at $10.00 per share. The
Subsidiary has filed a Notification of Registration on Form N-8A under the
Investment Company Act of 1940 (the "1940 Act") with the Securities and Exchange
Commission and will file a Registration Statement on Form N-2 under the 1940 Act
and the Securities Act of 1933, all to register the Subsidiary as a closed-end
investment company.
Item 7. Exhibits.
99(a) Declaration of Trust of The St. Lawrence Fund.
99(b) Form N-8A.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
The St. Lawrence Seaway Corporation
By: /s/Joel M. Greenblatt
Joel M. Greenblatt,
Chairman of the Board
EXHIBIT 99(a)
THE ST. LAWRENCE FUND
320 N. MERIDIAN STREET, SUITE 818
INDIANAPOLIS, IN 46204
DECLARATION OF TRUST
DATED:
DECEMBER 21, 1995
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ARTICLE I
NAME AND DEFINITIONS
Section 1.1 Name. The name of the trust created hereby is The St.
Lawrence Fund, and so far as may be practicable the Trustees shall conduct the
Trust's activities, execute all documents and sue or be sued under that name,
which name (and the word "Trust" wherever herein used) shall refer to the
Trustees as Trustees, and not as individuals, or personally, and shall not refer
to the officers, agents, employees or Shareholders of the Trust. Should the
Trustees determine that the use of such name is not advisable, they may use such
other name for the Trust as they deem proper and the Trust may hold its property
and conduct its activities under such other name.
Section 1.2 Definitions. Wherever they are used herein, the following
terms have the following respective meanings:
(a) "By-Laws" means the By-Laws referred to in Section 3.9
hereof, as from time to time amended.
(b) the terms "Commission," "Affiliated Person" and "Interested
Person," have the meanings given them in the 1940 Act.
(c) "Declaration" means this Declaration of Trust as amended
from time to time. Reference in this Declaration of Trust to
"Declaration," "hereof," and "hereunder" shall be deemed to refer to
this Declaration rather than the article or section in which such words
appear.
(d) "Distributor" means the party, other than the Trust, to a
contract described in Section 4.3 hereof.
(e) "Fundamental Policies" shall mean investment policies and
restrictions adopted by the Trustees, including as may be set forth in
the Prospectus and Statement of Additional Information as filed with the
Securities and Exchange Commission, and thereafter as amended, from time
to time and designated as fundamental policies therein.
(f) "Investment Adviser" means any party, other than the Trust,
to an investment advisory contract described in Section 4.1 hereof.
(g) "Majority Shareholder Vote" means the vote of the holders
of: (i) a majority of Shares represented in person or by proxy and
entitled to vote at a meeting of Shareholders at which a quorum, as
determined in accordance with the By-Laws, is present; or (ii) a
majority of Shares issued and outstanding and entitled to vote when
action is taken by written consent of Shareholders; or (iii) a "majority
of the outstanding voting securities," as the phrase is defined in the
1940 Act, when any action is required by the 1940 Act by such majority
as so defined.
(h) "Manager" means any party, other than the Trust, to a
management contract described in Section 4.1 hereof.
(i) "1940 Act" means the Investment Company Act of 1940 and the
rules and regulations thereunder as amended from time to time.
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(j) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures and other entities,
whether or not legal entities, and governments and agencies and
political subdivisions thereof.
(k) "Registration Statement" means a Registration Statement of
the Trust under the Securities Act of 1933 as such may be amended or
supplemented and filed with the Commission from time to time.
(l) "Shareholder" means a record owner of outstanding Shares.
(m) "Shares" means the units of interest into which the
beneficial interest in the Trust shall be divided from time to time as
described in Section 6.1, and includes fractions of Shares as well as
whole Shares.
(n) "Transfer Agent" means the party, other than the Trust, to
the contract described in Section 4.4 hereof.
(o) "Trust" refers to the Massachusetts business trust created
by this Declaration of Trust, as amended or restated from time to time.
(p) "Trust Property" means any and all property real or
personal, tangible or intangible, which is owned or held by or for the
account of the Trust or the Trustees.
(q) "Trustees" means the persons who have signed the
Declaration, so long as they shall continue in office in accordance with
the terms hereof, and all other persons who may from time to time be
duly elected or appointed, qualified and serving as Trustees in
accordance with the provisions hereof, and reference herein to a Trustee
or the Trustees shall refer to such person or persons in their capacity
as trustees hereunder.
ARTICLE II
TRUSTEES
Section 2.1. Number of Trustees. The number of Trustees shall be such
number as shall be fixed from time to time by a written instrument signed by a
majority of the Trustees, provided, however, that the number of Trustees shall
in no event be less than two (2) nor more than fifteen (15). No reduction in the
number of Trustees shall have the effect of removing any Trustee from office
prior to the expiration of his term unless the Trustee is specifically removed
pursuant to Section 2.2 of this Article II at the time of decrease. Unless
otherwise provided by the By-laws of the Trust, the Trustees need not be
Shareholders or own Shares.
Section 2.2. Term of Office of Trustees. The term of office of all of
the Trustees shall expire on the date of the first annual meeting of
Shareholders or special meeting in lieu thereof following the effective date of
the Registration Statement relating to the Shares under the Securities Act of
1933, as amended. Following the first annual or special meeting, the Board of
Trustees shall be divided into three classes (or such lesser number of classes
as shall be equal to the number of trustees in office immediately following such
meeting). Within the limits above specified, the number of Trustees in each
class shall be determined by resolution of the Board of Trustees. The term of
office of the first class shall expire on the date of the second annual meeting
of Shareholders or special meeting in lieu thereof. The term of office of the
second class
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shall expire on the date of the third annual meeting of Shareholders or special
meeting in lieu thereof. The term of office of the third class (if any) shall
expire on the date of the fourth annual meeting of Shareholders or special
meeting in lieu thereof. Upon expiration of the term of office of each class as
set forth above, the number of Trustees in such class, as determined by the
Board of Trustees, shall be elected for a term expiring on the date of the third
annual meeting of Shareholders or special meeting in lieu thereof following such
expiration to succeed the Trustees whose terms of office expire. The Trustees
shall be elected by a Majority Shareholder Vote at an annual meeting of
Shareholders or special meeting in lieu thereof called for that purpose, except
as provided in Section 2.3 of this Article. Each Trustee elected shall hold
office until his successor shall have been elected and shall have qualified;
except that (a) any Trustee may resign his trust (without need for prior or
subsequent accounting) by an instrument in writing signed by him or her and
delivered to the other Trustees, which shall take effect upon such delivery or
upon such later date as is specified therein; (b) any Trustee may be removed,
with or without cause, by written instrument, signed by a majority of the
remaining Trustees, specifying the date when such removal shall become
effective, (c) 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 meeting of Shareholders by a
vote of eighty percent (80%) of the outstanding Shares of the class or classes
of Shares of beneficial interest that elected such Trustee. Upon the resignation
or removal of a Trustee, or his otherwise ceasing to be Trustee, he shall
execute and deliver such documents as the remaining Trustees shall require for
the purpose of conveying to the Trust or the remaining Trustees any Trust
property held in the name of the resigning or removed Trustee. Upon the
incapacity or death of any Trustee, his legal representative shall execute and
deliver on his behalf such documents as the remaining Trustees shall require as
provided in the preceding sentence.
Section 2.3. Resignation and Appointment of Trustees. In case of the
declination, death, resignation, retirement, removal or inability of any of the
Trustees, or in case a vacancy shall, by reason of an increase in number, or for
any other reason, exist, the remaining Trustees or, prior to the public
ownership of Shares of the Trust, if only one Trustee shall then remain in
office, the remaining Trustee, shall fill such vacancy by appointing such other
person as they or he, in their or his discretion, shall see fit. Such
appointment shall be evidenced by a written instrument signed by a majority of
the remaining Trustees or by the remaining Trustee, as the case may be. Any such
appointment shall not become effective, however, until the person named in the
written instrument or appointment shall have accepted in writing such
appointment and agreed in writing to be bound by the terms of the Declaration.
Within twelve months of such appointment the Trustees shall cause notice of such
appointment to be mailed to each Shareholder at his address as recorded on the
books of the Trust. An appointment of a Trustee may be made by the Trustees then
in office and notice thereof mailed to Shareholders as aforesaid in anticipation
of a vacancy to occur by reason of retirement, resignation or increase in number
of Trustees effective at a later date, provided that said appointment shall
become effective only at or after the effective date of said retirement,
resignation or increase in number of Trustees. The power of appointment is
subject to the provisions of Section 16(a) of the 1940 Act.
Section 2.4. Vacancies. The death, declination, resignation, retirement,
removal or incapacity 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. Whenever a vacancy in the number of Trustees shall occur,
until such vacancy is filled as provided in Section 2.3, the Trustees in office,
regardless of their number, shall have all the powers granted to the Trustees
and shall discharge all the duties imposed upon
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the Trustees by the Declaration to elect a Trustee to fill such vacancy in
accordance with the terms and provisions hereof. A written instrument certifying
the existence of such vacancy signed by a majority of the Trustees shall be
conclusive evidence of the existence of such vacancy.
Section 2.5. Delegation of Power to Other Trustees. Subject to the
provisions of the 1940 Act, 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 (2) Trustees
personally exercise the powers granted to the Trustees under the Declaration
except as herein otherwise expressly provided. Nothing in this Section 2.5 shall
apply to or limit the ability of any Trustee to grant any power of attorney for
the purpose of executing any registration statement filed with the Commission or
thereto relating to the Shares.
ARTICLE III
POWERS OF TRUSTEES
Section 3.1. General. The Trustees shall have exclusive and absolute
control over the Trust Property and over the business of the Trust to the same
extent as if the Trustees were the sole owners of the Trust Property and
business in their own right, but with such powers of delegation as may be
permitted by the Declaration. The Trustees shall have power to conduct the
business of the Trust and carry on its operations in any and all of its branches
and maintain offices both within and without the Commonwealth of Massachusetts,
in any and all states of the United States of America, in the District of
Columbia, and in any and all commonwealths, territories, dependencies, colonies,
possessions, agencies or instrumentalities wheresoever in the world they may be
located as they deem necessary, proper or desirable in order to promote the
interests of the Trust although such things are not herein specifically
mentioned. Any determination as to what is in the interests of the Trust made by
the Trustees in good faith shall be conclusive. In construing the provisions of
the Declaration, the presumption shall be in favor of a grant of power to the
Trustees.
The enumeration of any specific power herein shall not be construed as
limiting the aforesaid power. Such powers of the Trustees may be exercised
without order of or resort to any court.
Section 3.2. Investments. The Trustees shall have the power to:
(a) conduct, operate and carry on the business of an investment
company;
(b) subscribe for, invest in, reinvest in, purchase or otherwise
acquire, hold, pledge, sell, assign, transfer, exchange, distribute,
lend or otherwise deal in or dispose of negotiable or non-negotiable
instruments, obligations, evidences of indebtedness, certificates of
deposit or indebtedness, commercial paper, repurchase agreements,
reverse repurchase agreements, options, commodities, commodity futures
contracts and related options, currencies, currency futures and forward
contracts, and other securities, investment contracts and other
instruments of any kind including, without limitation, those issued,
guaranteed or sponsored by any and all Persons including, without
limitation, states, territories and possessions of the United States,
the District of Columbia and any of the political subdivisions, agencies
or instrumentalities thereof, and by the United States Government or its
agencies or instrumentalities, foreign or international
instrumentalities, or by any bank or savings institution, or by any
corporation or
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organization organized under the laws of the United States or of any
state, territory or possession thereof, and of corporations or
organizations organized under foreign laws, or in "when issued"
contracts for any such securities, or retain Trust assets in cash and
from time to time change the investments of the assets of the Trust; and
to exercise any and all rights, powers and privileges of ownership or
interest in respect of any and all such investments of every kind and
description including, without limitation, the right to consent and
otherwise act with respect thereto, with power to designate one or more
persons, firms, associations or corporations to exercise any of said
rights, powers and privileges in respect of any of said instruments; and
the Trustees shall be deemed to have the foregoing powers with respect
to any additional securities in which the Trust may invest should the
Fundamental Policies be amended.
The Trustees shall not be limited to investing in obligations maturing before
the possible termination of the Trust, nor shall the Trustees be limited by any
law limiting the investments which may be made by fiduciaries.
Section 3.3. Legal Title. Legal title to all the Trust Property shall be
vested in the Trustees as joint tenants except that the Trustees shall have
power to cause legal title to any Trust Property to be held by or in the name of
one or more of the Trustees, or in the name of the Trust, or in the name of any
other Person as nominee, on such terms as the Trustees may determine, provided
that the interest of the Trust therein is appropriately protected. The right,
title and interest of the Trustees in the Trust Property shall vest
automatically in each Person who may hereafter become a Trustee. Upon the
resignation, removal or death of a Trustee he shall automatically cease to have
any right, title or interest in any of the Trust Property, and the right, title
and interest of such Trustee in the Trust Property shall vest automatically in
the remaining Trustees. Such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered.
Section 3.4. Issuance and Repurchase of Securities. The Trustees shall
have the power to issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of, transfer, and otherwise deal in Shares and,
subject to the provisions set forth in Articles VI, VII and VIII hereof, to
apply to any such repurchase, redemption, retirement, cancellation or
acquisition of Shares any funds or property of the Trust, whether capital or
surplus or otherwise, to the full extent now or hereafter permitted by the laws
of the Commonwealth of Massachusetts governing business corporations.
Section 3.5. Borrowing Money; Lending Trust Assets. Subject to the
Fundamental Policies, the Trustees shall have power to borrow money or otherwise
obtain credit and to secure the same by mortgaging, pledging or otherwise
subjecting as security the assets of the Trust, to endorse, guarantee, or
undertake the performance of any obligation, contract or engagement of any other
Person and to lend Trust assets.
Section 3.6. Delegation; Committees. The Trustees shall have power,
consistent with their continuing exclusive authority over the management of the
Trust and the Trust Property, to delegate from time to time to such of their
number or to officers, employees or agents of the Trust the doing of such things
and the execution of such instruments either in the name of the Trust or the
names of the Trustees or otherwise as the Trustees may deem expedient.
Section 3.7. Collection and Payment. The Trustees shall have power to
collect all property due to the Trust; to pay all claims, including taxes,
against the Trust Property; to prosecute, defend, compromise or abandon any
claims relating to the Trust Property;
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to foreclose any security interest securing any obligations, by virtue of which
any property is owed to the Trust; and to enter into releases, agreements and
other instruments.
Section 3.8. Expenses. The Trustees shall have the power to incur and
pay any expenses which in the opinion of the Trustees are necessary or
incidental to carry out any of the purposes of the Declaration, and to pay
reasonable compensation from the funds of the Trust to themselves as Trustees.
The Trustees shall fix the compensation of all officers, employees and Trustees.
Section 3.9. Manner of Acting; By-Laws. Except as otherwise provided
herein or in the By-Laws or by any provision of law, any action to be taken by
the Trustees may be taken by a majority of the Trustees present at a meeting of
Trustees (a quorum being present), including any meeting held by means of a
conference telephone circuit or similar communications equipment by means of
which all persons participating in the meeting can hear each other, or by
written consents of all the Trustees. The Trustees may adopt By-Laws not
inconsistent with this Declaration to provide for the conduct of the business of
the Trust and may amend or repeal such By-Laws to the extent such power is not
reserved to the Shareholders.
Section 3.10. Miscellaneous Powers. The Trustees shall have the power
to: (a) employ or contract with such Persons as the Trustees may deem desirable
for the transaction of the business of the Trust or any Series (as defined in
Article VI) thereof; (b) enter into joint ventures, partnerships and any other
combinations or associations; (c) remove Trustees or fill vacancies in or add to
their number, elect and remove such officers and appoint and terminate such
agents or employees as they consider appropriate, and appoint from their own
number, and terminate, any one or more committees which may exercise some or all
of the power and authority of the Trustees as the Trustees may determine; (d)
purchase, and pay for out of Trust Property or the property of the appropriate
Series of the Trust, insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, investment advisers, distributors, selected
dealers, or independent contractors of the Trust against all claims arising by
reason of holding any such position or by reason of any action taken or omitted
to be taken by any such Person in such capacity, whether or not constituting
negligence, or whether or not the Trust would have the power to indemnify such
Person against such liability; (e) establish pension, profit-sharing, Share
purchase, and other retirement, incentive and benefit plans for any Trustees,
officers, employees and agents of the Trust; (f) to the extent permitted by law,
indemnify any person with whom the Trust or any Series thereof has dealings,
including any Investment Adviser, Distributor, Transfer Agent and selected
dealers, to such extent as the Trustees shall determine; (g) guarantee
indebtedness or contractual obligations of others; (h) determine and change the
fiscal year of the Trust or any Series thereof and the method by which its
accounts shall be kept; (i) adopt a seal for the Trust but the absence of such
seal shall not impair the validity of any instrument executed on behalf of the
Trust; (j) amend, interpret or modify this Declaration of Trust, or other
governing instrument of the Trust or of Shares, in good faith for the purpose of
conforming the Trust's operations or this Declaration of Trust to the
requirements of any taxing or regulatory authority, to permit an additional
business activity, or otherwise to permit actions or activities which assist the
beneficial operation of the Trust, so long as such amendment, interpretation or
modification does not materially and adversely effect the interests of
Shareholders.
Section 3.11. Principal Transactions. Except in transactions permitted
by the 1940 Act or any rule or regulation thereunder, or any order of exemption
issued by the Commission, or effected to implement the provisions of any
agreement to which the Trust is a party, the Trustees shall not, on behalf of
the Trust, buy any securities (other
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than Shares) from or sell any securities (other than Shares) to, or lend any
assets of the Trust or any Series thereof to, any Trustee or officer of the
Trust or any firm of which any such Trustee or officer is a member acting as
principal, or have any such dealings with any Investment Adviser, Distributor or
Transfer Agent or with any Affiliated Person of such Person; but the Trust or
any Series thereof may employ any such Person, or firm or company in which such
Person is an Interested Person, as broker, legal counsel, registrar, transfer
agent, dividend disbursing agent or custodian upon customary terms.
Section 3.12. Litigation. The Trustees shall have the power to engage in
and to prosecute, defend, compromise, abandon, or adjust, by arbitration, or
otherwise, any actions, suits, proceedings, disputes, claims, and demands
relating to the Trust, and out of the assets of the Trust to pay or to satisfy
any debts, claims or expenses incurred in connection therewith, including those
of litigation, and such power shall include without limitation the power of the
Trustees or any appropriate committee thereof, in the exercise of their or its
good faith business judgment, to dismiss any action, suit, proceeding, dispute,
claim, or demand, derivative or otherwise, brought by any person, including a
Shareholder in its own name or the name of the Trust, whether or not the Trust
or any of the Trustees may be named individually therein or the subject matter
arises by reason of business for or on behalf of the Trust.
Section 3.13. Trustees and Officers as Shareholders. No officer or
Trustee of the Trust, and no officer or director of the Investment Adviser or
the Distributor, and no Investment Adviser or Distributor of the Trust, shall
take a short position in Shares.
ARTICLE IV
INVESTMENT ADVISER, MANAGER, DISTRIBUTOR, CUSTODIAN
AND TRANSFER AGENT
Section 4.1. Investment Adviser and Manager. Subject to approval by a
Majority Shareholder Vote, the Trustees may in their discretion from time to
time enter into one or more investment advisory and management contracts whereby
the other party or parties to any such contracts shall undertake to furnish the
Trust, such management, investment advisory, administration, accounting, legal,
statistical and research facilities and services, promotional or marketing
activities, and such other facilities and services, if any, as the Trustees
shall from time to time consider desirable and all upon such terms and
conditions as the Trustees may in their discretion determine. Notwithstanding
any provisions of the Declaration, the Trustees may authorize the Investment
Advisers, or any of them, under any such contracts (subject to such general or
specific instructions as the Trustees may from time to time adopt) to effect
purchases, sales, loans or exchanges of portfolio securities and other
investments of the Trust on behalf of the Trustees or may authorize any officer,
employee or Trustee to effect such purchases, sales, loans or exchanges pursuant
to recommendations of such Investment Advisers, or any of them (and all without
further action by the Trustees). Any such purchases, sales, loans and exchanges
shall be deemed to have been authorized by all of the Trustees.
Section 4.2. Administrative Services. The Trustees may in their
discretion from time to time contract for administrative personnel and services
whereby the other party shall agree to provide the Trustees or the Trust
administrative personnel and services to operate the Trust on a daily or other
basis, on such terms and conditions as the Trustees may in their discretion
determine. Such services may be provided by one or more persons or entities.
<PAGE>
Section 4.3. Distributor. The Trustees may in their discretion from time
to time enter into one or more contracts, providing for the sale of Shares
whereby the Trust may either agree to sell the Shares to the other parties to
the contracts, or any of them, or appoint any such other party its sales agent
for such Shares. In either case, any such contract shall be on such terms and
conditions as the Trustees may in their discretion determine not inconsistent
with the provisions of this Article IV or the By-Laws including, without
limitation, the provision for the repurchase or sale of Shares of the Trust by
such other party as principal or as agent of the Trust, and for entry by the
other parties to the contracts into selected dealer agreements with registered
securities dealers to further the purpose of distribution of the Shares.
Section 4.4. Transfer Agent. The Trustees may in their discretion from
time to time enter into a transfer agency and shareholder service contract
whereby the other party to such contract shall undertake to furnish transfer
agency and shareholder services to the Trust. The contract shall have such terms
and conditions as the Trustees may in their discretion determine not
inconsistent with the Declaration or the By-Laws. Such services may be provided
by one or more Persons.
Section 4.5. Custodian. The Trustees may appoint or otherwise engage one
or more banks or trust companies, each having an aggregate capital, surplus and
undivided profits (as shown on its last published report) of at least five
million dollars ($5,000,000) to serve as Custodian with authority as its agent,
but subject to such restrictions, limitations and other requirements, if any, as
may be contained in the By-Laws of the Trust.
Section 4.6. Parties to Contract. Any contract of the character
described in Sections 4.1, 4.2, 4.3, 4.4 or 4.5 of this Article IV and any other
contract may be entered into with any Person, although one or more of the
Trustees or officers of the Trust may be an officer, director, trustee,
shareholder, or member of such other party to the contract, and no such contract
shall be invalidated or rendered voidable by reason of the existence of any such
relationship; nor shall any Person holding such relationship be liable merely by
reason of such relationship for any loss or expense to the Trust under or by
reason of said contract or accountable for any profit realized directly or
indirectly therefrom, provided that the contract when entered into was not
inconsistent with the provisions of this Article IV. The same Person may be the
other party to any contracts entered into pursuant to Sections 4.1, 4.2, 4.3,
4.4 or 4.5 above or otherwise, and any individual may be financially interested
or otherwise affiliated with Persons who are parties to any or all of the
contracts mentioned in this Section 4.6.
Section 4.7 Compliance with the 1940 Act. Any contract entered into
pursuant to Sections 4.1, 4.2 and 4.3 shall be consistent with and subject to
the requirements of Section 15 of the 1940 Act (including any amendment thereof
or other applicable Act of Congress hereafter enacted) with respect to its
continuance in effect, its termination and the method of authorization and
approval of such contract or renewal thereof.
ARTICLE V
LIMITATIONS OF LIABILITY OF SHAREHOLDERS, TRUSTEES AND OTHERS
Section 5.1. No Personal Liability of Shareholders, Trustees, etc. No
Shareholder shall be subject to any personal liability whatsoever to any Person
in connection with Trust Property or the acts, obligations or affairs of the
Trust. No Trustee, officer, employee or agent of the Trust shall be subject to
any personal liability
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whatsoever to any Person, other than the Trust or its Shareholders, in
connection with the Trust Property or the affairs of the Trust, save only that
arising from bad faith, willful misfeasance, gross negligence or reckless
disregard for his duty to such Person; and all such Persons shall look solely to
the Trust Property, for satisfaction of claims of any nature arising in
connection with the affairs of the Trust. If any Shareholder, Trustee, officer,
employee or agent, as such, of the Trust is made a party to any suit or
proceeding to enforce any such liability, he shall not, on account thereof, be
held to any personal liability. The Trust shall indemnify out of the property of
the Trust and hold each Shareholder harmless from and against all claims and
liabilities, to which such Shareholder may become subject by reason of his being
or having been a Shareholder, and shall reimburse such Shareholder for all legal
and other expenses reasonably incurred by him in connection with any such claim
or liability. The rights accruing to a Shareholder under this Section 5.1 shall
not exclude any other right to which such Shareholder may be lawfully entitled,
nor shall anything herein contained restrict the right of the Trust to indemnify
or reimburse a Shareholder in any appropriate situation even though not
specifically provided herein.
Section 5.2. Non-Liability of Trustees, etc. No Trustee, officer,
employee or agent of the Trust shall be liable to the Trust, its Shareholders,
or to any Shareholder, Trustee, officer, employee, or agent thereof for any
action or failure to act (including without limitation the failure to compel in
any way any former or acting Trustee to redress any breach of trust) except for
his own bad faith, willful misfeasance, gross negligence or reckless disregard
of his or her duties.
Section 5.3. Indemnification. (a) The Trustees shall provide for
indemnification by the Trust of any person who is, or has been, a Trustee,
officer, employee or agent of the Trust against all liability and against all
expenses reasonably incurred or paid by him 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, officer, employee or agent and
against amounts paid or incurred by him in the settlement thereof, in such
manner as the Trustees may provide from time to time in the By-Laws.
(b) 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; and the words "liability" and "expenses" shall
include, without limitation, attorneys' fees, costs, judgments, amounts paid in
settlement, fines, penalties and other liabilities.
Section 5.4. No Bond Required of Trustees. No Trustee shall be obligated
to give any bond or other security for the performance of any of his duties
hereunder.
Section 5.5. No Duty of Investigation; Notice in Trust Instruments, etc.
No purchaser, lender, transfer agent or other Person dealing with the Trustees
or any officer, employee or agent of the Trust shall be bound to make any
inquiry concerning the validity of any transaction purporting to be made by the
Trustees or by said officer, employee or agent or be liable for the application
of money or property paid, loaned or delivered to or on the order of the
Trustees or of said officer, employee or agent. Every obligation, contract,
instrument, certificate, Share, other security of the Trust or undertaking, and
every other act or thing whatsoever executed in connection with the Trust shall
be conclusively presumed to have been executed or done by the executors thereof
only in their capacity as officers, employees or agents of the Trust. Every
written obligation, contract, instrument, certificate, Share, other security of
the Trust or undertaking made or issued by the Trustees shall recite that the
same is executed or made by them not individually, but as Trustees under the
Declaration, and that the obligations of the Trust under any such instrument are
not binding upon any of the
<PAGE>
Trustees or Shareholders, individually, but bind only the Trust Estate, and may
contain any further recital which they or he may deem appropriate, but the
omission of such recital shall not affect the validity of such obligation,
contract instrument, certificate, Share, security or undertaking and shall not
operate to bind the Trustees or Shareholders individually. The Trustees shall at
all times maintain insurance for the protection of the Trust Property, its
Shareholders, Trustees, officers, employees and agents in such amount as the
Trustees shall deem adequate to cover possible tort liability, and such other
insurance as the Trustees in their sole judgment shall deem advisable.
Section 5.6. Reliance on Experts, etc. Each Trustee and officer or
employee of the Trust shall, in the performance of his duties, be fully and
completely justified and protected with regard to any act or any failure to act
resulting from reliance in good faith upon the books of account or other records
of the Trust, upon an opinion of counsel, or upon reports made to the Trust by
any of its officers or employees or by any Investment Adviser, Distributor,
Transfer Agent, selected dealers, accountants, appraisers or other experts or
consultants selected with reasonable care by the Trustees, officers or employees
of the Trust, regardless of whether such counsel or expert may also be a
Trustee.
ARTICLE VI
SHARES OF BENEFICIAL INTEREST
Section 6.1. Beneficial Interest. The beneficial interest in the Trust
shall be divided into Shares, all without par value, but the Trustees shall have
the authority from time to time, without obtaining shareholder approval, to
create one or more Series of Shares in addition to the Series specifically
established and designated in Part 3 of this Article SIXTH, and to divide the
shares of any Series into two or more Classes pursuant to Part 2 of this Article
SIXTH, all as they deem necessary or desirable, to establish and designate such
Series and Classes, and to fix and determine the relative rights and preferences
as between the different Series of Shares or Classes as to right of redemption
and the price, terms and manner of redemption, liabilities and expenses to be
borne by any Series or Class, special and relative rights as to dividends and
other distributions and on liquidation, sinking or purchase fund provisions,
conversion on liquidation, conversion rights, and conditions under which the
several Series or Classes shall have individual voting rights or no voting
rights. Except as aforesaid, all Shares of the different Series shall be
identical.
(a) The number of authorized Shares and the number of Shares of
each Series and each Class of a Series that may be issued is unlimited, and the
Trustees may issue Shares of any Series of Class of any Series for such
consideration and on such terms as they may determine (or for no consideration
if pursuant to a Share dividend or split-up), all without action or approval of
the Shareholders. All Shares when so issued on the terms determined by the
Trustees shall be fully paid and non-assessable. The Trustees may classify or
reclassify any unissued Shares or any Shares previously issued and reacquired of
any Series into one or more Series or Classes of Series that may be established
and designated from time to time. The Trustees may hold as treasury Shares (of
the same or some other Series), reissue for such consideration and on such terms
as they may determine, or cancel, at their discretion from time to time, any
Shares of any Series reacquired by the Trust.
(b) The establishment and designation of any Series or any Class
of any Series in addition to that established and designated in Part 3 of this
Article Sixth shall
<PAGE>
be effective with the effectiveness of an instrument setting forth such
establishment and designation and the relative rights and preferences of such
Series or such Class of such Series or as otherwise provided in such instrument.
At any time that there are not Shares outstanding of any particular Series
previously established and designated, the Trustees may by an instrument
executed by a majority of their number abolish that Series and the establishment
and designation thereof. If and to the extent the instrument referred to in this
paragraph shall be an amendment to this Declaration of Trust, the Trustees may
make any such amendment without shareholder approval.
(c) Any Trustee, officer or other agent of the Trust, and any
organization in which any such person is interested may acquire, own, hold and
dispose of Shares of any Series or Class of any Series of the Trust to the same
extent as if such person were not a Trustee, officer or other agent of the
Trust; and the Trust may issue and sell or cause to be issued and sold and may
purchase Shares of any Series or Class of any Series from any such person or any
such organization subject only to the general limitations, restrictions or other
provisions applicable to the sale or purchase of Shares of such Series or Class
generally.
Section 6.2. Classes of Series. The Trustees shall have authority from
time to time, without obtaining shareholder approval, to divide the Shares of
any Series into two or more Classes as they deem necessary or desirable, and to
establish and designate such Classes. In such event, each Class of a Series
shall represent interests in the designated Series of the Trust and have such
voting, dividend, liquidation and other rights as may be established and
designated by the Trustees. Expenses and liabilities related directly or
indirectly to the Shares of a Class of a Series may be borne solely by such
Class (as shall be determined by the Trustees) and a Class of a Series may have
exclusive voting rights with respect to matters relating solely to such Class.
The bearing of expenses and liabilities solely by a Class of Shares of a Series
shall be appropriately reflected (in the manner determined by the Trustees) in
the net asset value, dividend and liquidation rights of the Shares of such Class
of a Series. The division of the Shares of a Series into Classes and the terms
and conditions pursuant to which the Shares of the Classes of a Series will be
issued must be made in compliance with the 1940 Act. No division of Shares of a
Series into Classes shall result in the creation of a Class of Shares having a
preference as to dividends or distributions or a preference in the event of any
liquidation, termination or winding up of the Trust, to the extent such a
preference is prohibited by Section 18 of the 1940 Act as to the Trust.
The relative rights and preferences of Shares of different Classes of a
Series shall be the same in all respects except that, and unless and until the
Board of Trustees shall determine otherwise: (I) when a vote of Shareholders is
required under this Declaration of Trust or when a meeting of Shareholders is
called by the Board of Trustees, the Shares of a Class shall vote exclusively on
matters that affect that Class only; (ii) the expenses and liabilities related
to a Class shall be borne solely by such Class (as determined and allocated to
such Class by the Trustees from time to time); and (iii) the Shares of each
Class shall have such other rights and preferences as are set forth from time to
time in the then effective prospectus and/or statement of additional information
relating to the Shares. Dividends and distributions on one Class of a Series may
differ from the dividends and distributions on another Class of the Series, and
the net asset value of one Class of a Series may differ from the net asset value
of another Class of the Series.
Section 6.3. Creation of Initial Series. Without limiting the authority
of the Trustees set forth in Section 6.1 of this Article SIXTH to establish and
designate any further Series, the Trustees hereby establish one Series of Shares
having the same name as the Trust, and said Shares shall be of one Class until
divided into Classes by
<PAGE>
vote of the Trustees and as shall be set forth from time be established and
designated by the Trustees shall (unless the Trustees otherwise determine with
respect to some further Series or Classes at the time of establishing and
designating the same) have the following relative rights and preferences:
(a) Assets Belonging to Series. All consideration received by
the Trust from 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
irrevocably belong to that Series for all purposes, subject only to the rights
of creditors, and shall be so recorded upon the books of account of the Trust.
Such consideration, assets, 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, together with any General Items
allocated to that Series as provided in the following sentence, are herein
referred to as "assets belonging to" that Series. In the event that there are
any assets, income, earnings, profits, and proceeds thereof, funds, or payments
which are not readily identifiable as belonging to any particular Series
(collectively "General Items"), the trustees shall allocate such General Items
to and among any one or more of the Series established and designated from time
to time in such manner and on such basis as they, in their sole discretion, deem
fair and equitable; and any General Items so allocated to a particular Series
shall belong to that Series. Each such allocation by the Trustees shall be
conclusive and binding upon the shareholders of all Series for all purposes.
(b) (1) Liabilities Belonging to Series. The liabilities,
expenses, costs, charges and reserves attributable to each Series shall be
charged and allocated to the assets belonging to each particular Series. Any
general liabilities, expenses, costs, charges and reserves of the Trust which
are not identifiable as belonging to any particular Series shall be allocated
and charged by the Trustees to and among any one or more of the Series
established and designated from time to time in such manner and on such basis as
the Trustees in their sole discretion deem fair and equitable. The liabilities,
expenses, costs, charges and reserves allocated and so charged to each Series
are herein referred to as "liabilities belonging to" that Series. Each
allocation of liabilities, expenses, costs, charges and reserves by the Trustees
shall be conclusive and binding upon the shareholders of all Series for all
purposes.
(2) Liabilities Belonging to a Class. If a Series is
divided into more than one Class, the liabilities, expenses, costs, charges and
reserves attributable to a Class shall be charged and allocated to the Class to
which such liabilities, expenses, costs, charges or reserves are attributable.
Any general liabilities, expenses, costs, charges or reserves belonging to the
Series which are not identifiable are belonging to any particular Class shall be
allocated and charged by the Trustees to and among any one or more of the
Classes established and designated from time to time in such manner and on such
basis as the Trustees in their sole discretion deem fair and equitable. The
liabilities, expenses, costs, charges and reserves allocated and so charged to
each Class are herein referred to as "liabilities belonging to" that Class. Each
allocation of liabilities, expenses, costs, charges and reserves by the Trustees
shall be conclusive and binding upon the holders of all Classes for all
purposes.
(c) Dividends. Dividends and distributions on Shares of a
particular Series or Class may be paid to the holders of Shares of that Series
or Class, with such frequency as the Trustees may determine, which may be daily
or otherwise pursuant to
<PAGE>
a standing resolution or resolutions adopted only once or with such frequency as
the Trustees may determine, from such of the income, capital gains accrued or
realized, and capital and surplus, from the assets belonging to that Series, as
the Trustees may determine, after providing for actual and accrued liabilities
belonging to such Series or Class. All dividends and distributions on Shares of
a particular Series or Class shall be distributed pro rata to the Shareholders
of such Series or Class in proportion to the number of Shares of such Series or
Class held by such Shareholders at the date and time of record 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. Such
dividends and distributions may be made in cash or Shares or a combination
thereof as determined by the Trustees or pursuant to any program that the
Trustees may have in effect at the time for the election by each Shareholder of
the mode of the making of such dividend or distribution to that Shareholder. Any
such dividend or distribution paid in Shares will be paid at the net asset value
thereof as determined in accordance with this Declaration of Trust.
(d) Liquidation. In the event of the liquidation or dissolution
of the Trust, the Shareholders of each Series and all Classes of each Series
that have been established and designated shall be entitled to receive, as a
Series or Class, when and as declared by the Trustees, the excess of the assets
belonging to that Series over the liabilities belonging to that Series or Class.
The assets so distributable to the Shareholders of any particular Class and
Series shall be distributed among such Shareholders in proportion to the number
of Shares of such Class of that Series held by them and recorded on the books of
the Trust.
(e) Transfer. All Shares of each particular Series or Class
shall be transferable, but transfers of Shares of a particular Class and Series
will be recorded on the Share transfer records of the Trust applicable to such
Series or Class of that Series only at such times as Shareholders shall have the
right to require the Trust to redeem Shares of such Series or Class of that
Series and at such other times as may be permitted by the Trustees.
(f) Equality. Each Share of a Series shall represent an equal
proportionate interest in the assets belonging to that Series (subject to the
liabilities belonging to such Series or any Class of that Series), and each
Share of any particular Series shall be equal to each other Share of that Series
and shares of each Class of a Series shall be equal to each other Share of such
Class; but the provisions of this sentence shall not restrict any distinctions
permissible under this Article SIXTH that may exist with respect to Shares of
the different Classes of a Series. The Trustees may from time to time divide or
combine the Shares of any particular Class or Series into a greater or lesser
number of Shares of that Class or Series without thereby changing the
proportionate beneficial interest in the assets belonging to that Series or
allocable to that Class in any way affecting the rights or Shares of any other
Class or Series.
(g) Fractions. Any fractional Share of any Class and Series, if
any such fractional Share is outstanding, shall carry proportionately all the
rights and obligations of a whole Share of that Class and Series, including
those rights and obligations with respect to voting, receipt of dividends and
distributions, redemption of Shares, and liquidation of the Trust.
(h) Conversion Rights. Subject to compliance with the
requirements of the 1940 Act, the Trustees shall have the authority to provide
that (i) holders of Shares of
<PAGE>
any Series shall have the right to exchange said Shares into Shares of one or
more other Series or Shares, (ii) holders of shares of any Class shall have the
right to exchange said Shares into Shares of one or more other Classes of the
same or a different Series, and/or (iii) the Trust shall have the right to carry
out exchanges of the aforesaid kind, in each case in accordance with such
requirements and procedures as may be established by the Trustees.
(i) Ownership of Shares. The ownership of Shares shall be
recorded on the books of the Trust or of a transfer or similar agent for the
Trust, which books shall be maintained separately for the Shares of each Class
and Series that has been established and designated. No certification certifying
the ownership of Shares need be issued except as the Trustees may otherwise
determine from time to time. The Trustees may make such rules as they consider
appropriate for the issuance of Share certificates, the use of facsimile
signatures, the transfer of Shares and similar matters. The record books of the
Trust as kept by the Trust or any transfer or similar agent, as they case may
be, shall be conclusive as to who are the Shareholders and as to the number of
Shares of each Class and Series held from time to time by each such Shareholder.
(j) Investments in the Trust. The Trustees may accept
investments in the Trust from such persons and on such terms and for such
consideration, not inconsistent with the provisions of the 1940 Act, as they
from time to time authorize. The Trustees may authorize any distributor,
principal underwriter, custodian, transfer agent or other person to accept
orders for the purchase or sale of Shares that conform to such authorized terms
and to reject any purchase or sale orders for Shares whether or not conforming
to such authorized terms.
(k) Voting of Series. Except as herein otherwise provided, at
all meetings of Shareholders, each Shareholder shall be entitled to one vote on
each matter submitted to a vote of the Shareholders of the affected Series for
each Share standing in his name on the books of the Trust on the date, fixed in
accordance with the By-laws, for determination of Shareholders of the affected
Series entitled to vote at such meeting (except, if the Board so determines, for
Shares redeemed prior to the meeting), and each such Series shall vote
separately ("Individual Series Voting"); a Series shall be deemed to be affected
when a vote of the holders of that Series on a matter is required by the 1940
Act; provided, however, that as to any matter with respect to which a vote of
Shareholders is required by the 1940 Act or by any applicable law that must be
complied with, such requirements as to a vote by Shareholders shall apply in
lieu of Individual Series Voting as described above. If the shares of a Series
shall be divided into Classes, the shares of each Class shall have identical
voting rights except that the Trustees, in their discretion, may provide a Class
of a Series with exclusive voting rights with respect to matters which relate
solely to such Classes. If the Shares of any Series shall be divided into
Classes with a Class having exclusive voting rights with respect to certain
matters, the quorum and voting requirements described below with respect to
action to be taken by the Shareholders of the Class of such Series on such
matters shall be applicable only to the Shares of such Class. Any fractional
Shares shall carry proportionately all the rights of a whole Share, including
the right to vote and the right to receive dividends. The presence in person or
by proxy of the holders of a majority of the Shares, or of the Shares of any
Series or Class of any Series, outstanding and entitled to vote thereat shall
constitute a quorum at any meeting of the Shareholders or of that Series or
Class, respectively.
Section 6.4. Rights of Shareholders. The ownership of the Trust Property
of every description and the right to conduct any business hereinbefore
described are vested exclusively in the Trustees, and the Shareholders shall
have no interest therein
<PAGE>
other than the beneficial interest conferred by their Shares, and they shall
have no right to call for any partition of division of any property, profits,
rights or interests of the Trust nor can they be called upon to assume any
losses of the Trust or suffer an assessment of any kind by virtue of their
ownership of Shares. The Shares shall be personal property giving only the
rights in the Declaration specifically set forth. The Shares shall not entitle
the holder to preference, preemptive, appraisal, conversion or exchange rights,
except as the Trustees may determine with respect to any class or series of
Shares.
Section 6.5. Trust Only. It is the intention of the Trustees to create
only the relationship of Trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention of the Trustees to create
a general partnership, limited partnership, joint stock association,
corporation, bailment or any form of legal relationship other than a trust.
Nothing in the Declaration shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
Section 6.6. Issuance of Shares. The Trustees, in their discretion may,
from time to time without vote of the Shareholders, issue Shares, in addition to
the then issued and outstanding Shares and Shares held in the treasury, to such
party or parties and for such amount and type of consideration, including cash
or property, at such time or times and on such terms as the Trustees may deem
best, and may in such manner acquire other assets (including the acquisition of
assets subject to, and in connection with the assumption of liabilities) and
businesses. In connection with any issuance of Shares, the Trustees may issue
fractional Shares and Shares held in the treasury. The Trustees may from time to
time divide or combine the Shares or any class or series thereof into a greater
or lesser number without thereby changing the proportionate beneficial interests
in the Trust. Contributions to the Trust may be accepted for, and Shares shall
be redeemed as, whole Shares and/or 1/1000ths of a Share or integral multiples
thereof.
Section 6.7 Register of Shares. A register shall be kept in respect of
each Series at the principal office of the Trust or at an office of the Transfer
Agent which shall contain the names and addresses of the Shareholders and the
number of Shares held by them respectively and a record of all transfers
thereof. Such register may be in written form or any other form capable of being
converted into written form within a reasonable time for visual inspection. Such
register shall be conclusive as to who are the 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 Trustees as shall keep the
said register for entry thereon. It is not contemplated that certificates will
be issued for the Shares; however, the Trustees, in their discretion, may
authorize the issuance of Share certificates and promulgate appropriate rules
and regulations as to their use.
Section 6.8. Transfer of Shares. Shares shall be transferable on the
records of the Trust only by the record holder or by his agent thereunto duly
authorized in writing, upon delivery to the Trustees or the Transfer Agent of a
duly executed instrument of transfer, together with such evidence of the
genuineness of each such execution and authorization and of other matters as may
reasonably be required. Upon such delivery the transfer shall be recorded on the
register of the Trust. Until such record is made, the Shareholder of record
shall be deemed to be the holder of such Shares for all purposes hereunder and
neither the Trustees nor any Transfer Agent or registrar nor
<PAGE>
any officer, employee or agent of the Trust shall be affected by any notice of
the proposed transfer.
Any person becoming entitled to any Shares in consequence of the death,
bankruptcy, or incompetence of any Shareholder, or otherwise by operation of
law, shall be recorded on the register of Shares as the holder of such Shares
upon production of the proper evidence thereof to the Trustees or the Transfer
Agent, but until such record is made, the Shareholder of record shall be deemed
to be the holder of such Shares for all purposes hereunder and neither the
Trustees nor any Transfer Agent or registrar nor any officer of agent of the
Trust shall be affected by any notice of such death, bankruptcy or incompetence,
or other operation of law, except as may otherwise be provided by the laws of
the Commonwealth of Massachusetts.
Section 6.9. Notices. Any and all notices to which any Shareholder may
be entitled and any and all communications shall be deemed duly served or given
if mailed, postage prepaid, addressed to any Shareholder of record at his last
known address as recorded on the register of the Trust. Annual reports and proxy
statements need not be sent to a shareholder if: (i) an annual report and proxy
statement for two consecutive annual meetings, or (ii) all, and at least two,
checks (if sent by first class mail) in payment of dividends or interest and
shares during a twelve month period have been mailed to such shareholder's
address and have been returned undelivered. However, delivery of such annual
reports and proxy statements shall resume once a Shareholder's current address
is determined.
Section 6.10. Voting Powers. The Shareholders shall have power to vote
only (i) for the election of Trustees as provided in Section 2.2 hereof, (ii)
for the removal of Trustees as provided in Section 2.2 hereof, (iii) with
respect to any investment advisory or management contract as provided in Section
4.1, (iv) with respect to termination of the Trust as provided in Section 8.2,
(v) with respect to any amendment of the Declaration to the extent and as
provided in Section 8.3, (vi) with respect to any merger, consolidation or sale
of assets as provided in Sections 8.4, 8.5 and 8.6, (vii) with respect to
incorporation or reorganization of the Trust to the extent and as provided in
Section 8.5, (viii) 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 (ix) with respect to such
additional matters relating to the Trust as may be required by law, the
Declaration, the By-Laws or any registration of the Trust with the Commission
(or any successor agency) or any state, or as and when the Trustees may consider
necessary or desirable. Each whole Share shall be entitled to one vote as to any
matter on which it is entitled to vote and each fractional Share shall be
entitled to a proportionate fractional vote, except that Shares held in the
treasury of the Trust as of the record date, as determined in accordance with
the By-Laws, shall not be voted. There shall be no cumulative voting in the
election of Trustees. Until Shares are issued, the Trustees may exercise all
rights of Shareholders and may take any action required by law, the Declaration
or the By-Laws to be taken by Shareholders. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters.
<PAGE>
ARTICLE VII
DETERMINATION OF NET ASSET VALUE,
NET INCOME AND DISTRIBUTIONS
The Trustees, in their absolute discretion, may prescribe and shall set
forth in the By-Laws or in a duly adopted vote of the Trustees such bases and
times for determining the per share net asset value of the Shares or net income
or the declaration and payment of dividends and distributions as they may deem
necessary or desirable.
ARTICLE VIII
DURATION; TERMINATION OF TRUST; AMENDMENT; MERGERS, ETC.
Section 8.1. Duration. The Trust shall terminate on or about the 31st
day of December, 2015, unless earlier or later terminated in accordance with the
provisions of Section 8.2 of this Article VIII.
Section 8.2. Termination of the Trust. (a) The Trust may be terminated
(i) by the affirmative vote of the holders of not less than eighty percent (80%)
of the Shares outstanding and entitled to vote, at any meeting of Shareholders
of the Trust, or (ii) by an instrument in writing, signed by a majority of the
Trustees and consented to by the holders of not less than a Majority Shareholder
Vote of the Trust or (iii) by the Trustees by written notice to the
Shareholders.
Upon the termination of the Trust:
(A) The Trust shall carry on no business except for the purpose
of winding up its affairs.
(B) The Trustees shall proceed to wind up the affairs of the
Trust 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 or any part of the remaining Trust Property or
Trust Property to one or more persons at public or private sale for
consideration which may consist in whole or in part of cash, securities
or other property of any kind, discharge or pay its liabilities, and to
do all other acts appropriate to liquidate its business; provided that
any sale, conveyance, assignment, exchange, transfer or other
disposition of all or substantially all the Trust Property shall require
Shareholder approval in accordance with Section 8.4 hereof.
(C) After paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities and
refunding agreements, as they deem necessary for their protection, the
Trustees may distribute the remaining Trust Property, in cash or in kind
or partly each, among the Shareholders of the Trust according to their
respective rights.
(D) 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
<PAGE>
liabilities and duties with respect to the Trust, and the rights and
interests of all Shareholders of the Trust shall thereupon cease.
Section 8.3. Amendment Procedures. (a) Except as provided in paragraph
(c) of this Section 8.3, this Declaration may be amended by a vote of the
majority of Shares outstanding and entitled to vote, at a meeting of
Shareholders, or by an instrument in writing, without a meeting signed by a
majority of the Trustees and consented to by the holders of not less than a
majority of the Shares outstanding and entitled to vote. The Trustees may also
amend this Declaration without the vote or consent of Shareholders (i) to change
the name of the Trust, (ii) to supply any omission, or cure, correct or
supplement any ambiguous, defective or inconsistent provision hereof or to
exercise the powers granted to them pursuant to Section 3.10 or otherwise
herein, (iii) if they deem it necessary to conform this Declaration to the
requirements of applicable federal or state laws or regulations or the
requirements of the Internal Revenue Code, or to eliminate or reduce any
federal, state or local taxes which are or may be payable by the Trust or the
Shareholders, but the Trustees shall not be liable for failing to do so, or (iv)
for any other purpose which does not adversely affect the rights of any
Shareholder with respect to which the amendment is or purports to be applicable.
(b) No amendment may be made under this Section 8.3 which would change
any rights with respect to any Shares of the Trust by reducing the amount
payable thereon upon liquidation of the Trust or by diminishing or eliminating
any voting rights pertaining thereto, except with the vote or consent of the
holders of two-thirds of the Shares of the Trust outstanding and entitled to
vote. 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.
(c) No amendment may be made under this Section 8.3 which shall amend,
alter, change or repeal any of the provisions of Sections 8.3, 8.4, 8.6 or 8.7
unless the amendment affecting such amendment, alteration, change or repeal
shall receive the affirmative vote or consent of eighty percent (80%) of the
Shares outstanding and entitled to vote. Such affirmative vote or consent shall
be in addition to the vote or consent of the holders of Shares otherwise
required by law or by the terms of any class or series, whether now or hereafter
authorized, or any agreement between the Trust and any national securities
exchange.
(d) A certificate signed by a majority of the Trustees or by the
Secretary or any Assistant Secretary of the Trust, setting forth an amendment
and reciting that it was duly adopted by the Shareholders or by the Trustees as
aforesaid or a copy of the Declaration, as amended, and executed by a majority
of the Trustees or certified by the Secretary or any Assistant Secretary of the
Trust, shall be conclusive evidence of such amendment when lodged among the
records of the Trust. Unless such amendment or such certificate sets forth some
later time for the effectiveness of such amendment, such amendment shall be
effective when lodged among the records of the Trust.
Notwithstanding any other provision hereof, until such time as a Form
N-2 Registration Statement under the 1940 Act, as amended, shall have 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 a
majority of the Trustees.
Section 8.4. 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
<PAGE>
authorized, at any meeting of Shareholders called for the purpose, by the
affirmative vote of the holders of not less than eighty percent (80%) of the
Shares of the Trust entitled to vote, or by an instrument or instruments in
writing, without a meeting, consented to by the holders of not less than eighty
percent (80%) of such Shares; provided, however, that if such merger,
consolidation, sale, lease or exchange is recommended by the Trustees, the vote
or written consent of the holders of a majority of the Shares outstanding and
entitled to vote shall be sufficient authorization; and any such merger,
consolidation, sale, lease or exchange shall be deemed for all purposes to have
been accomplished under and pursuant to the laws of the Commonwealth of
Massachusetts. Nothing contained herein shall be construed as requiring approval
of Shareholders for any sale of assets in the ordinary course of business of the
Trust.
Section 8.5. Incorporation and Reorganization. With the approval of the
holders of a majority of the Shares outstanding and entitled to vote, the
Trustees may cause to be organized or assist in organizing a corporation or
corporations under the laws of any jurisdiction or any other trust, partnership,
association or other organization to take over all of the Trust Property or the
Trust Property and Reorganization 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 to any such corporation, trust, 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, association or
organization in which the Trust holds or is about to acquire shares or any other
interest. Subject to Section 8.4 hereof, the Trustees may also cause a merger or
consolidation between the Trust or any successor thereto and any such
corporation, trust, partnership, association or other organization if and to the
extent permitted by law, as provided under the law then in effect. Nothing
contained herein shall be construed as requiring approval of Shareholders for
the Trustees to organize or assist in organizing one or more corporations,
trusts, partnerships, associations or other organizations and selling, conveying
or transferring a portion of the Trust Property to such organization or
entities.
Section 8.6. Conversion. Notwithstanding any other provision of this
Declaration, the conversion of the Trust, or Series of the Trust, from a
"closed-end company" to an "open-end company", as those terms are defined in
Sections 5(a)(2) and 5(a)(1), respectively, of the 1940 Act as in effect on
December 1, 1995, shall require the affirmative vote or consent of the holders
of eighty percent (80%) of each of the Shares outstanding and entitled to vote.
Such affirmative vote or consent shall be in addition to the vote or consent of
the holders of the Shares otherwise required by law or by the terms of any class
or series of Shares, whether now or hereafter authorized, or any agreement
between the Trust and any national securities exchange; provided, however, such
provision shall not preclude a Series from being otherwise classified if then
permitted by the 1940 Act of by order or interpretation of appropriate
regulatory authorities.
ARTICLE IX
REPORTS TO SHAREHOLDERS
The Trustees shall at least semi-annually submit or cause the officers
of the Trust to submit to the Shareholders a written financial report of the
Trust, including financial statements which shall at least annually be certified
by independent public accountants.
<PAGE>
ARTICLE X
MISCELLANEOUS
Section 10.1. Filing. This Declaration and any amendment hereto shall be
filed in the office of the Secretary of the Commonwealth of Massachusetts and
may also be filed or recorded in such other places as the Trustees deem
appropriate. Each amendment so filed shall be accompanied by a certificate
signed and acknowledged by a Trustee or by the Secretary or any Assistant
Secretary of the Trust stating that such action was duly taken in a manner
provided herein. A restated Declaration, integrating into a single instrument
all of the provisions of the Declaration which are then in effect and operative,
may be executed from time to time by a majority of the Trustees and shall, upon
filing with the Secretary of the Commonwealth of Massachusetts, be conclusive
evidence of all amendments contained therein and may thereafter be referred to
in lieu of the original Declaration and the various amendments thereto.
Section 10.2. Resident Agent. Lane Altman & Owens, 101 Federal Street,
Boston, Massachusetts 02110, Attn: Joseph F. Mazzella, is the resident agent of
the Trust in the Commonwealth of Massachusetts.
Section 10.3. Governing Law. This Declaration is executed by the
Trustees and delivered in the Commonwealth of Massachusetts and with reference
to the laws thereof and the rights of all parties and the validity and
construction of every provision hereof shall be subject to and construed
according to the laws of said State.
Section 10.4. Counterparts. The Declaration may be simultaneously
executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts, together, shall constitute one and the same
instrument, which shall be sufficiently evidenced by any such original
counterpart.
Section 10.5. Reliance by Third Parties. Any certificate executed by an
individual who, according to the records of the Trust, appears to be a Trustee
hereunder, or Secretary or Assistant Secretary of the Trust, certifying to: (a)
the number or identity of Trustees or Shareholders, (b) the due authorization of
the execution of any instrument or writing, (c) the form of any vote passed at a
meeting of Trustees or Shareholders, (d) the fact that the number of Trustees or
Shareholders present at any meeting or executing any written instrument
satisfies the requirements of this Declaration, (e) the form of any By-Laws
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.
Section 10.6. Provisions in Conflict with Law or Regulations. (a) The
provisions of the Declaration are severable, and if the Trustees shall
determine, with the advice of counsel, that any of such provisions is in
conflict with the 1940 Act, the regulated investment company provisions of the
Internal Revenue Code or with other applicable laws and regulations, the
conflicting provisions shall be deemed superseded by such law or regulation to
the extent necessary to eliminate such conflict; provided, however, that such
determination shall not affect any of the remaining provisions of the
Declaration or render invalid or improper any action taken or omitted prior to
such determination.
(b) If any provision of the Declaration shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
pertain only to such provision in
<PAGE>
such jurisdiction and shall not in any manner affect such provision in any other
jurisdiction or any other provision of the Declaration in any jurisdiction.
Section 10.7. Principal Place of Business. The principal place of
business of the Trust shall be 320 N. Meridian Street, Suite 818, Indianapolis,
IN 46204, or such other location as the Trustees may designate from time to
time.
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Declaration of Trust this
21 day of December, 1995.
/s/ Edward B. Grier III /s/ Michael Port
, as Trustee , as Trustee
STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK
On this 21 day of December, 1995, Edward B. Grier III and Michael Port,
known to me and known to be the individuals described in and who executed the
foregoing instrument, personally appeared before me and they severally
acknowledged the foregoing instrument to be their free act and deed.
/s/ Anne Marie Begley
Notary Public
[STAMP]
Anne Marie Begley
Notary Public, State of New York
No. 01BE4871650
Qualified in Queens County
My commission expires: 3/23/97
EXHIBIT 99(b)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-8A
NOTIFICATION OF REGISTRATION
FILED PURSUANT TO SECTION 8(a) OF THE
INVESTMENT COMPANY ACT OF 1940
The undersigned investment company hereby notifies the Securities and
Exchange Commission that it registers under and pursuant to the provisions of
Section 8(a) of the Investment Company Act of 1940 and in connection with such
notification of registration submits the following information:
Name: The St. Lawrence Fund
Address of Principal Business Office (No. and Street, City, State, Zip Code):
320 N. Meridian Street, Suite 818, Indianapolis, Indiana 46204
Telephone Number (including area code): (317) 639-5292
Name and Address of Agent for Services of Process: Joseph F. Mazzella, c/o Lane
Altman & Owens, 101 Federal Street, Boston, MA 02110
Check Appropriate Box:
Registrant is filing a Registration Statement pursuant to Section 8(b)
of the Investment Company Act of 1940 concurrently with the filing of
Form N-8A: Yes No X
--- ---
Pursuant to the requirements of the Investment Company Act of 1940, the
registrant has caused this notification of registration to be duly signed on its
behalf in the City of New York on the 28th of December 1995.
By: /s/ Edward B. Grier, III
as Trustee
Attest: /s/ Robert Goldstein
Witness
