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<PAGE> PAGE 7
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SIGNATURE PAUL SCHUBERT
TITLE TREASURER
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
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AMENDED AND RESTATED DECLARATION OF TRUST
OF
PAINEWEBBER INVESTMENT TRUST
Dated February 11, 1998
AMENDED AND RESTATED DECLARATION OF TRUST
OF
PAINEWEBBER INVESTMENT TRUST
THE DECLARATION OF TRUST of PaineWebber Investment Trust, made on the 28th
day of March, 1991, and amended and restated this 11th day of February,
1998 by the parties signing hereto, as trustees (such persons and any
successors to such persons and additional persons, so long as they continue
in or be admitted to office in accordance with the terms of this Declaration
of Trust, and all other persons who at the time in question have been duly
elected or appointed as trustees in accordance with the terms of this
Declaration of Trust and are then in office, are hereinafter referred to
as the "Trustees").
W I T N E S S E T H
WHEREAS, the Trustees desire to form a Massachusetts business trust for the
investment and reinvestment of funds contributed thereto; and
WHEREAS, it is proposed that the beneficial interest in the trust assets shall
be divided into transferable shares of beneficial interest which, in the
discretion of the Trustees, may be divided into separate series as hereinafter
provided;
NOW, THEREFORE, the Trustees hereby declare that they will hold in TRUST, all
money and property contributed to the trust fund and manage and dispose of the
same for the benefit of the holders, from time to time, of the shares of
beneficial interest issued hereunder and subject to the provisions hereof.
NAME AND DEFINITIONS
Section 1.1. Name. The name of the trust created hereby is "PaineWebber
Investment Trust."
Section 1.2. Definitions. Wherever they are used herein, the following
terms have the following respective meanings:
"Administrator" means the party, other than the Trust, to the contract
described in Section 3.3 hereof.
"By-laws" means the By-laws referred to in Section 2.8 hereof, as from time
to time amended.
"Class" means any class of Shares within a Series, which Class is or has
been established within such Series in accordance with the provisions of
Article V.
The terms "Commission" and "Interested Person", have the meanings given them
in the 1940 Act. Except as otherwise defined by the Trustees in conjunction
with the establishment of any Series of Shares, the term "vote of a majority
of the Shares outstanding and entitled to vote" shall have the same meaning
as the term "vote of a majority of the outstanding voting securities" given
it in the 1940 Act.
"Custodian" means any Person other than the Trust who has custody of any
Trust Property as required by 17(f) of the 1940 Act, but does not include
a system for the central handling of securities described in said 17(f).
"Declaration" means this Declaration of Trust as amended from time to time.
Reference in this Declaration of Trust to "Declaration," "hereof," "herein,"
and "hereunder" shall be deemed to refer to this Declaration rather than
exclusively to the article or section in which such words appear.
"Distributor" means the party, other than the Trust, to the contract
described in Section 3.1 hereof.
The "1940 Act" means the Investment Company Act of 1940, as amended from time
to time.
"Fund" or "Funds" individually or collectively means the separate Series of
Shares of the Trust, together with the assets and liabilities assigned
thereto.
"His" shall include the feminine and neuter, as well as the masculine,
genders.
"Investment Adviser" means the party, other than the Trust, to the contract
described in Section 3.2 hereof.
"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.
"Series" individually or collectively means the separate Series of the Trust
as may be established and designated from time to time by the Trustees
pursuant to Section 5.11 hereof. Unless the context otherwise requires,
the term "Series" shall include Classes into which Shares of the Trust, or
of a Series, may be divided from time to time.
"Shareholder" means record owner of Outstanding Shares.
"Shares" means the equal proportionate units of interest into which the
beneficial interest in the Trust shall be divided from time to time,
including the Shares of any and all Series or of any Class within any Series
(as the context may require) which may be established by the Trustees, and
includes fractions of Shares as well as whole Shares. "Outstanding" Shares
means those Shares shown from time to time on the books of the Trust or its
Transfer Agent as then issued and outstanding, but shall not include Shares
which have been redeemed or repurchased by the Trust and which are at the
time held in the treasury of the Trust.
"Transfer Agent" means any Person other than the Trust who maintains the
Shareholder records of the Trust, such as the list of Shareholders, the
number of Shares credited to each account, and the like.
"Trust" means PaineWebber Investment Trust.
"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.
The "Trustees" means the persons who have signed this 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, qualified and serving
Trustees in accordance with the provisions of Article II hereof, and
reference herein to a Trustee or the Trustees shall refer to such persons in
their capacities as trustees hereunder.
TRUSTEES
Section 2.1. General Powers. The Trustees shall have exclusive and
absolute control over the Trust Property and over the business of the Trust
to the same extent as if the Trustees were the sole owners of the Trust
Property and business in their own right, but with such powers of delegation
as may be permitted by this Declaration. The Trustees shall have the 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 of the United States of America and of foreign governments,
and to do all such other things and execute all such instruments as they deem
necessary, proper or desirable in order to promote the interests of the Trust
although such things are not herein specifically mentioned. Any
determination as to what is in the interests of the Trust made by the
Trustees in good faith shall be conclusive. In construing the provisions of
this 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 2.2. Investments. The Trustees shall have the power:
To operate as and carry on the business of an investment company, and exercise
all the powers necessary and appropriate to the conduct of such operations.
To invest in, hold for investment, or reinvest in, securities, including
common and preferred stocks; warrants; bonds, debentures, bills, time notes
and all other evidences of indebtedness; negotiable or non-negotiable
instruments; government securities, including securities of any state,
municipality or other political subdivision thereof, or any governmental or
quasi-governmental agency or instrumentality; and money market instruments
including bank certificates of deposit, finance paper, commercial paper,
bankers' acceptances and all kinds of repurchase agreements, of any
corporation, company, trust, association, firm or other business organization
however established, and of any country, state, municipality or other
political subdivision, or any governmental or quasi-governmental agency or
instrumentality.
To acquire (by purchase, subscription or otherwise), to hold, to trade in and
deal in, to acquire any rights or options to purchase or sell, to sell or
otherwise dispose of, to lend and to pledge any such securities, to enter
into repurchase agreements and forward foreign currency exchange contracts,
to purchase and sell options on securities or indices, futures contracts and
options on futures contracts of all descriptions and to engage in all types
of hedging and risk management transactions.
To exercise all rights, powers and privileges of ownership or interest in all
securities and repurchase agreements included in the Trust Property, including
the right to vote thereon and otherwise act with respect thereto and to do all
acts for the preservation, protection, improvement and enhancement in value of
all such securities and repurchase agreements.
To acquire (by purchase, lease or otherwise) and to hold, use, maintain,
develop and dispose of (by sale or otherwise) any property, real or personal,
including cash, and any interest therein.
To borrow money and in this connection issue notes or other evidence of
indebtedness; to secure borrowings by mortgaging, pledging or otherwise
subjecting as security the Trust Property; and to endorse, guarantee, or
undertake the performance of any obligation or engagement of any other Person
and to lend Trust Property.
To aid by further investment any corporation, company, trust, association or
firm, any obligation of or interest in which is included in the Trust
Property or in the affairs of which the Trustees have any direct or indirect
interest; to do all acts and things designed to protect, preserve, improve or
enhance the value of such obligation or interest; and to guarantee or become
surety on any or all of the contracts, stocks, bonds, notes, debentures and
other obligations of any such corporation, company, trust, association or
firm.
To enter into a plan of distribution and any related agreements whereby the
Trust may finance directly or indirectly any activity which is primarily
intended to result in sale of Shares.
To adopt on behalf of the Trust, any Series or Class of any Series thereof.
In general to carry on any other business in connection with or incidental to
any of the foregoing powers, to do everything necessary, suitable or proper
for the accomplishment of any purpose or the attainment of any object or the
furtherance of any power hereinbefore set forth, either alone or in
association with others, and to do every other act or thing incidental or
appurtenant to or arising out of or connected with the aforesaid business or
purposes, objects or powers.
The foregoing clauses shall be construed both as objects and powers, and the
foregoing enumeration of specific powers shall not be held to limit or
restrict in any manner the general powers of the Trustees.
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 2.3. 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 any Series 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
deemed 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 termination of the term of office,
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 2.4. Issuance and Repurchase of Shares. 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 and VII and Section 5.11
hereof, to apply to any such repurchase, redemption, retirement, cancellation
or acquisition of Shares and 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 2.5. Delegation; Committees. The Trustees shall have power 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 any Series of the Trust or the
names of the Trustees or otherwise as the Trustees may deem expedient, to the
same extent as such delegation is permitted by the 1940 Act.
Section 2.6. Collection and Payment. Subject to Section 5.11 hereof, 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; 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 2.7. Expenses. Subject to Section 5.11 hereof, 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 this
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 2.8. Manner of Acting; By-laws. Except as otherwise provided
herein or in the By-laws, 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 the entire number of Trustees then in office. 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.
Notwithstanding the foregoing provisions of this Section 2.8 and in addition
to such provisions or any other provision of this Declaration or of the
By-laws, the Trustees may by resolution appoint a committee consisting of less
than the whole number of Trustees then in office, which committee may be
empowered to act for and bind the Trustees and the Trust, as if the acts of
such committee were the acts of all the Trustees then in office, with respect
to the institution, prosecution, dismissal, settlement, review or
investigation of any action, suit or proceeding which shall be pending or
threatened to be brought before any court, administrative agency or other
adjudicatory body.
Section 2.9. Miscellaneous Powers. Subject to Section 5.11 hereof, 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 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, administrators, 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 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 the
Investment Adviser, Administrator, 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; and (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.
Section 2.10. Principal Transactions. Except in transactions not permitted
by the 1940 Act or rules and regulations adopted by the Commission, the
Trustees may, on behalf of the Trust, buy any securities from or sell any
securities 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 the
Investment Adviser, Distributor or transfer agent or with any Interested
Person of such Person; and the Trust or a 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 2.11. Number of Trustees. The number of Trustees shall initially
be three (3), and thereafter shall be such number as shall be fixed from time
to time by a resolution adopted by a majority of the Trustees, provided,
however, that the number of Trustees shall in no event be less than one (1)
nor more than fifteen (15).
Section 2.12. Election and Term. Except for the Trustees named herein or
appointed to fill vacancies pursuant to Section 2.14 hereof, the Trustees
shall be elected by the Shareholders owning of record a plurality of the
Shares voting at a meeting of Shareholders on a date fixed by the Trustees.
Except in the event of resignation or removals pursuant to Section 2.13
hereof, each Trustee shall hold office until such time as less than a majority
of the Trustees holding office have been elected by Shareholders. In such
event the Trustees then in office will call a Shareholders' meeting for the
election of Trustees. Except for the foregoing circumstances, the Trustees
shall continue to hold office and may appoint successor Trustees.
Section 2.13. Resignation and Removal. Any Trustee may resign his trust
(without the need for any prior or subsequent accounting) by an instrument in
writing signed by him and delivered to the other Trustees and such resignation
shall be effective upon such delivery, or at a later date according to the
terms of the instrument. Any of the Trustees may be removed (provided the
aggregate number of Trustees after such removal shall not be less than one)
with cause, by the action of a majority of the remaining Trustees or by
action of a majority of the outstanding Shares of beneficial interest of the
Trust at a meeting duly called pursuant to Section 5.10 hereof by the
Shareholders for such purpose. Upon the resignation or removal of a Trustee,
or his otherwise ceasing to be a 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 2.14. Vacancies. The term of office of a Trustee shall terminate
and a vacancy shall occur in the event of his death, resignation, removal,
bankruptcy, adjudicated incompetence or other incapacity to perform the
duties of the office of a Trustee. No such vacancy shall operate to annul
the Declaration or to revoke any existing agency created pursuant to the
terms of the Declaration. In the case of an existing vacancy, including a
vacancy existing by reason of an increase in the number of Trustees, subject
(but only after the Trust's initial registration statement under the
Securities Act of 1933 shall have become effective) to the provisions of
Section 16(a) of the 1940 Act, the remaining Trustees shall fill such vacancy
by the appointment of such other person as they in their discretion shall see
fit, made by a written instrument signed by a majority of the Trustees then
in office. Any such appointment shall not become effective, however, until
the person named in the written instrument of appointment shall have accepted
in writing such appointment and agreed in writing to be bound by the terms of
the Declaration. An appointment of a Trustee may be made in anticipation of
a vacancy to occur at a later date by reason of retirement, resignation or
increase in the number of Trustees, provided that such appointment shall not
become effective prior to such retirement, resignation or increase in the
number of Trustees. Whenever a vacancy in the number of Trustees shall
occur, until such vacancy is filled as provided in this Section 2.14, 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 the
Trustees by the Declaration. A written instrument certifying the existence
of such vacancy signed by a majority of the Trustees in office shall be
conclusive evidence of the existence of such vacancy.
Section 2.15. Delegation of Power to Other Trustees. 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 fewer than two (2) Trustees personally exercise the powers granted
to the Trustees under this Declaration except as herein otherwise expressly
provided.
CONTRACTS
Section 3.1. Distribution Contract. The Trustees may in their discretion
from time to time enter into an exclusive or non-exclusive distribution
contract or contracts providing for the sale of the Shares to net the Trust
or the applicable Series of the Trust not less than the amount provided for
in Section 7.1 of Article VII hereof, whereby the Trustees may either agree
to sell the Shares to the other party to the contract or appoint such other
party their sales agent for the Shares, and in either case on such terms and
conditions, if any, as may be prescribed in the By-laws, and such further
terms and conditions as the Trustees may in their discretion determine not
inconsistent with the provisions of this Article III or of the By-laws; and
such contract may also provide for the repurchase of the Shares by such
other party as agent of the Trustees.
Section 3.2. Advisory or Management Contract. The Trustees may in their
discretion from time to time enter into an investment advisory contract or,
if the Trustees establish multiple Series, separate investment advisory
contracts with respect to each Series, whereby the other party to such
contract or contracts shall undertake to manage the investment operations of
one or more Series of the Trust and the compositions of the portfolios of the
Trust or such Series, including the purchase, retention and disposition of
securities and other assets, in accordance with the investment objectives,
policies and restrictions of the Trust or such Series and all upon such
terms and conditions as the Trustees may in their discretion determine,
including the grant of authority to such other party to determine what
securities shall be purchased or sold by the Trust or the applicable Series
of the Trust and what portion of its assets shall be uninvested, which
authority shall include the power to make changes in the investments of the
Trust or any Series.
Section 3.3. Administration and Service Agreements. The Trustees may in
their discretion from time to time enter into an administration contract or,
if the Trustees establish multiple Series or Classes separate administration
contracts with respect to each Series or Class, whereby the other party to
such contract shall undertake to manage the business affairs of the Trust or
of a Series of the Trust and furnish the Trust or a Series or Class thereof
office facilities, and shall be responsible for the ordinary clerical,
bookkeeping and recordkeeping services at such office facilities, and other
facilities and services, if any, and all upon such terms and conditions as
the Trustees may in their discretion determine. The Trustees may in their
discretion also from time to time enter into service agreements with respect
to one or more Classes of Shares whereby the other parties to such service
agreements will provide distribution services and support services upon such
terms and conditions as the Trustees in their discretion may determine.
Section 3.4. Affiliations of Trustees or Officers, Etc. The fact that:
any of the Shareholders, Trustees or officers of the Trust is a shareholder,
director, officer, partner, trustee, employee, manager, adviser or
distributor of or for any partnership, corporation, trust, association or
other organization or of or for any parent or affiliate of any organization,
with which a contract of the character described in Sections 3.1, 3.2 or
3.3 above or for services as Custodian, Transfer Agent or disbursing agent
or for related services may have been or may hereafter be made, or that any
such organization, or any parent or affiliate thereof, is a Shareholder of
or has an interest in the Trust, or that any partnership, corporation, trust,
association or other organization
with which a contract of the character described in Sections 3.1 ,3.2 or
3.3 above or for services as Custodian, Transfer Agent or disbursing agent or
for related services may have been or may hereafter be made also has any one
or more such contracts with one or more other partnerships, corporations,
trusts, associations or other organizations, or has other business or
interests, shall not affect the validity of any such contract or disqualify
any Shareholder, Trustee or officer of the Trust from voting upon or
executing the same or create any liability or accountability to the Trust
or its Shareholders.
Section 3.5. Compliance with 1940 Act. Any contract entered into pursuant
to Sections 3.1 or 3.2 shall be consistent with and subject to the
requirements of Section 15 of the 1940 Act (including any 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.
LIMITATIONS OF LIABILITY OF SHAREHOLDERS,
TRUSTEES AND OTHERS
Section 4.1. 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 whatsoever to any Person, other than to the
Trust or its Shareholders, in connection with Trust Property or the affairs
of the Trust, save only that arising from bad faith, willful misfeasance,
gross negligence or reckless disregard of his duties with respect to such
Person; and all such Persons shall look solely to the Trust Property, or to
the Property of one or more specific Series of the Trust if the claim arises
from the conduct of such Trustee, officer, employee or agent with respect to
only such Series, 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 of the Trust, he shall not,
on account thereof, be held to any personal liability. The Trust shall
indemnify 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 out
of the Trust Property for all legal and other expenses reasonably incurred by
him in connection with any such claim or liability. The indemnification and
reimbursement required by the preceding sentence shall be made only out of
assets of the one or more Series whose Shares were held by said Shareholder
at the time the act or event occurred which gave rise to the claim against or
liability of said Shareholder. The rights accruing to a Shareholder under
this Section 4.1 shall not impair 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 4.2. 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 the duties involved in the conduct of his office.
Section 4.3. Mandatory Indemnification. (a) Subject to the exceptions
and limitations contained in paragraph (b) below:
every person who is, or has been, a Trustee or officer of the Trust shall be
indemnified by the Trust, or by one or more Series thereof if the claim
arises from his or her conduct with respect to only such Series to the
fullest extent permitted by law 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 or officer and
against amounts paid or incurred by him in the settlement thereof;
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.
No indemnification shall be provided hereunder to a Trustee or officer:
against any liability to the Trust, a Series thereof or the Shareholders by
reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his office;
with respect to any matter as to which he shall have been finally adjudicated
not to have acted in good faith in the reasonable belief that his action was
in the best interest of the Trust or a Series thereof;
in the event of a settlement or other disposition not involving a final
adjudication as provided in paragraph (b)(ii) resulting in a payment by a
Trustee or officer, unless there has been a determination that such Trustee
or officer did not engage in willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of his office:
(A) by the court or other body approving the settlement or other
disposition; or
(B) based upon a review of readily available facts (as opposed to a full
trial-type inquiry) by (x) vote of a majority of the Non-interested Trustees
acting on the matter (provided that a majority of the Non-interested Trustees
then in office act on the matter) or (y) written opinion of independent legal
counsel.
The rights of indemnification herein provided may be insured against by
policies maintained by the Trust, shall be severable, shall not affect any
other rights to which any Trustee or officer may now or hereafter be entitled,
shall continue as to a person who has ceased to be such Trustee or officer
and shall inure to the benefit of the heirs, executors, administrators and
assigns of such a person. Nothing contained herein shall affect any rights
to indemnification to which personnel of the Trust other than Trustees and
officers may be entitled by contract or otherwise under law.
Expenses of preparation and presentation of a defense to any claim, action,
suit or proceeding of the character described in paragraph (a) of this
Section 4.3 may be advanced by the Trust or a Series thereof prior to final
disposition thereof upon receipt of an undertaking by or on behalf of the
recipient to repay such amount if it is ultimately determined that he is not
entitled to indemnification under this Section 4.3, provided that either:
such undertaking is secured by a surety bond or some other appropriate
security provided by the recipient, or the Trust or Series thereof shall be
insured against losses arising out of any such advances; or
a majority of the Non-interested Trustees acting on the matter (provided that
a majority of the Non-interested Trustees act on the matter) or an independent
legal counsel in a written opinion shall determine, based upon a review of
readily available facts (as opposed to a full trial-type inquiry), that there
is reason to believe that the recipient ultimately will be found entitled to
indemnification.
As used in this Section 4.3, a "Non-interested Trustee" is one who (i) is not
an "Interested Person" of the Trust (including anyone who has been exempted
from being an "Interested Person" by any rule, regulation or order of the
Commission), and (ii) is not involved in the claim, action, suit or
proceeding.
Section 4.4. 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 4.5. 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 or a Series thereof
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 a Series thereof 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 Trustees under this Declaration or in their capacity as officers,
employees or agents of the Trust or a Series thereof. Every written
obligation, contract, instrument, certificate, Share, other security of the
Trust or a Series thereof or undertaking made or issued by the Trustees may
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 or a
Series thereof under any such instrument are not binding upon any of the
Trustees or Shareholders individually, but bind only the Trust Property or
the Trust Property of the applicable Series, and may contain any further
recital which they may deem appropriate, but the omission of such recital
shall not operate to bind the Trustees individually. The Trustees shall at
all times maintain insurance for the protection of the Trust Property or the
Trust Property of the applicable Series, 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 4.6. Reliance on Experts, Etc. Each Trustee, officer or employee
of the Trust or a Series thereof 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 or a Series thereof, upon an opinion of
counsel, or upon reports made to the Trust or a Series thereof by any of its
officers or employees or by the Investment Adviser, the Administrator, the
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.
SHARES OF BENEFICIAL INTEREST
Section 5.1. Beneficial Interest. The interest of the beneficiaries
hereunder shall be divided into transferable shares of beneficial interest,
all of one class, except as provided in Section 5.11 hereof, par value .001
per share. The number of shares of beneficial interest authorized hereunder
is unlimited. All Shares issued hereunder including, without limitation,
Shares issued in connection with a dividend in Shares or a split of Shares,
shall be fully paid and non-assessable.
Section 5.2. 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 other than the beneficial interest conferred by
their Shares, and they shall have no right to call for any partition or
division of any property, profits, rights or interests of the Trust nor can
they be called upon to share or 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 specifically set forth in
this Declaration. 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 Series of Shares.
Section 5.3. 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 this Declaration of Trust shall be construed to make the
Shareholders, either by themselves or with the Trustees, partners or members
of a joint stock association.
Section 5.4. 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 of the Trust
or, if the Shares be divided into Series, of any Series of the Trust or of
any Class thereof, into a greater or lesser number without thereby changing
the proportionate beneficial interests in the Trust or in the Trust Property
allocated or belonging to such Series or Class. Contributions to the Trust
or Series thereof may be accepted for, and Shares shall be redeemed as,
whole Shares and/or 1/1,000ths of a Share or integral multiples thereof.
Section 5.5. Register of Shares. A register shall be kept at the principal
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 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 5.6. Transfer of Shares. Shares shall be transferable on the
records of the Trust only by the record holder thereof or by his agent
thereunto duly authorized in writing, upon delivery to the Trustees or the
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 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 or agent of
the Trust shall be affected by any notice of such death, bankruptcy or
incompetence, or other operation of law.
Section 5.7. 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.
Section 5.8. Treasury Shares. Shares held in the treasury shall, until
resold pursuant to Section 5.4, not confer any voting rights on the Trustees,
nor shall such Shares be entitled to any dividends or other distributions
declared with respect to the Shares.
Section 5.9. Voting Powers. The Shareholders shall have power to vote
only (i) for the election of Trustees as provided in Section 2.12; (ii) with
respect to any investment advisory contract entered into pursuant to Section
3.2; (iii) with respect to termination of the Trust or a Series thereof as
provided in Section 8.2; (iv) with respect to any amendment of this
Declaration to the extent and as provided in Section 8.3; (v) with respect to
any merger, consolidation or sale of assets as provided in Section 8.4; (vi)
with respect to incorporation of the Trust to the extent and as provided in
Section 8.5; (vii) 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 a Series or Class thereof or the Shareholders
of any of them (provided, however, that a Shareholder of a specific Series or
Class shall not be entitled to a derivative or class action on behalf of any
other Series or Class (or Shareholder of any other Series or Class) of the
Trust); (viii) with respect to any plan adopted pursuant to Rule 12b-1 (or
any successor rule) under the 1940 Act, and related matters; and (ix) with
respect to such additional matters relating to the Trust as may be required
by this Declaration, the By-laws or any registration of the Trust as an
investment company under the 1940 Act with the Commission (or any successor
agency) or as 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. If separate Series of Shares are established, Shares shall
be voted by individual Series on any matter submitted to a vote of the
Shareholders of the Trust except as provided in Section 5.11(f) hereof.
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, this 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.
Section 5.10. Meetings of Shareholders. Meetings of the Shareholders of
the Trust may be called at any time by the President, and shall be called by
the President or the Secretary at the request, in writing or by resolution,
of a majority of the Trustees, or at the written request of the holder or
holders of ten percent (10%) or more of the total number of Shares then
issued and outstanding of the Trust entitled to vote at such meeting.
Meetings of the Shareholders of any Series or Class of the Trust shall be
called by the President or the Secretary at the written request of the holder
or holders of ten percent (10%) or more of the total number of Shares then
issued and outstanding of such Series or Class of the Trust entitled to vote
at such meeting. Any such request shall state the purpose of the proposed
meeting.
Section 5.11. Series Designation. The Trustees, in their discretion, may
authorize the division of Shares into two or more Series, and may divided the
Shares or the Shares of any Series into two or more Classes, and the different
Series or Classes shall be established and designated, and the variations in
the relative rights and preferences as between the different Series (and
Classes thereof) shall be fixed and determined, by the Trustees; provided,
that all Shares shall be identical except that there may be variations so
fixed and determined between different Series (and Classes thereof) as to
investment objective, purchase price, right of redemption or obligations to
make payments, special and relative rights as to dividends and on liquidation,
reinvestment, exchange conversion rights, and conditions under which the
several Series shall have separate voting rights, all of which are subject
to the limitations set forth below. All references to Shares in this
Declaration shall be deemed to be Shares of any or all Series as the context
may require.
If the Trustees shall divide the Shares of the Trust into two or more Series,
or Shares of the Trust or of any Series into two or more Classes, the
following provisions shall be applicable:
The number of authorized Shares and the number of Shares of each Series or
Class that may be issued shall be unlimited. The Trustees may classify or
reclassify any unissued Shares or any Shares previously issued and reacquired
of any Series or Class thereof into one or more other Series (or Classes
within the same or one or more other 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 or Class thereof), reissue for such consideration
and on such terms as they may determine, or cancel any Shares of any Series
or Class thereof reacquired by the Trust at their discretion from time to
time.
All consideration received by the Trust for the issue or sale of Shares of a
particular Series, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds thereof,
including any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall irrevocably belong to that
Series for all purposes, subject only to the rights of creditors of such
Series and except as may otherwise be required by applicable tax laws, and
shall be so recorded upon the books of account of the Trust. 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, the Trustees shall allocate them 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.
Each such allocation by the Trustees shall be conclusive and binding upon the
Shareholders of all Series for all purposes. No holder of Shares of any
Series shall have any claim on or right to any assets allocated or belonging
to any other Series.
The assets belonging to each particular Series shall be charged with the
liabilities of the Trust in respect of that Series or Class or Classes
thereof and all expenses, costs, charges and reserves attributable to that
Series or Class or Classes thereof, and any general liabilities, expenses,
costs, charges or reserves of the Trust which are not readily identifiable as
belonging to any particular Series or Class or Classes thereof shall be
allocated and charged by the Trustees to and among any one or more of the
Series or Class or Classes thereof 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. Each allocation of liabilities, expenses,
costs, charges and reserves by the Trustees shall be conclusive and binding
upon the Shareholders of all Series or Classes for all purposes. The
Trustees shall have full discretion, to the extent not inconsistent with the
1940 Act, to determine which items are capital; and each such determination
and allocation shall be conclusive and binding upon the Shareholders. The
assets of a particular Series of the Trust shall, under no circumstances, be
charged with liabilities attributable to any other Series or Class of the
Trust. All persons extending credit to, or contracting with or having any
claim against a particular Series of the Trust shall look only to the assets
of that particular Series for payment of such credit, contract or claim.
Shares of each Class of each Series shall bear the expenses of payments under
any agreements ("Special Class Agreements") entered into by or on behalf of
the Trust with organizations that provide for services to beneficial owners
of Shares of that Class. Expenses described in the preceding sentence are
sometimes referred to herein as "Special Class Expenses".
The power of the Trustees to pay dividends and make distributions shall be
governed by Section 7.2 of this Declaration with respect to any one or more
Series or Classes which represents the interests in the assets of the Trust
immediately prior to the establishment of two or more Series or Classes.
With respect to any other Series or Class, dividends and distributions on
Shares of a particular Series or Class may be paid with such frequency as the
Trustees may determine, which may be daily or otherwise, pursuant to a
standing resolution or resolutions adopted only once or with such frequency
as the Trustees may determine, to the holders of Shares of that Series or
Class, from such of the income and capital gains, accrued or realized, from
the assets belonging to that Series or Class, as the Trustees may determine,
after providing for actual and accrued liabilities belonging to that Series
or Class (including, without limitation the allocation to a Class of Special
Class expenses relating to that Class). All dividends and distributions on
Shares of a particular Series or Class shall be distributed pro rata to the
Shareholders of that Series or Class in proportion to the number of Shares of
that series or Class held by such Shareholders at the time of record
established for the payment of such dividends or distribution.
Each Share of a Series of the Trust shall represent a beneficial interest in
the net assets of such Series. Each holder of Shares of a Series or Class
shall be entitled to receive his pro rata share of distributions of income
and capital gains made with respect to such Series or Class. Upon redemption
of his Shares or indemnification for liabilities incurred by reason of his
being or having been a Shareholder of a Series, such Shareholder shall be
paid solely out of the funds and property of such Series of the Trust.
Upon liquidation or termination of a Series or Class of the Trust,
Shareholders of such Series shall be entitled to receive a pro rata share of
the net assets of such Series or Class. A Shareholder of a particular
Series of the Trust shall not be entitled to participate in a derivative or
class action on behalf of any other Series or the Shareholders of any other
Series of the Trust.
On each matter submitted to a vote of Shareholders, all Shares shall be voted
by individual Series, provided, however, that (a) when required by the 1940
Act, Shares shall be voted in the aggregate and not by individual Series;
(b) to the extent that a matter affects only the interests of one Class of a
Series, then only the Shareholders of such Class shall be entitled to vote
thereon; (c) to the extent that a matter affects more than one Class or
Series and the interests of each such Class or Series in the matter are
identical, then, subject to the following paragraph, the Shares of all such
affected Classes or Series shall vote as a single class.
On any matter that pertains to any Special Class Agreement or to any Special
Class Expenses with respect to any Series, which matter is submitted to a
vote of Shareholders, only Shares of the Class of such Series shall be
entitled to vote except that to the extent said matter affects Shares of
another Class or Series, such other Shares shall also be entitled to vote.
Except as otherwise provided in this Article V, the Trustees shall have the
power to determine the designations, preferences, privileges, payment
obligations, limitations and rights, including voting and dividend rights, of
each Class and Series of Shares.
The establishment and designation of any Series of Shares shall be effective
(i) upon the execution by a majority of the then Trustees of an instrument
setting forth such establishment and designation and the relative rights,
payment obligations, if any, and preferences of such Series, (ii) upon the
execution of an instrument in writing by an officer of the Trust pursuant
to a vote of a majority of the Trustees, or (iii) as otherwise provided in
such instrument. Each instrument referred to in this section shall have the
status of an amendment to this Declaration. Without limiting the authority
of the Trustees set forth in this Article V to establish and designate any
further Series or Classes, the Trustees have established and designated the
Series of Shares and Classes listed in Schedule A attached hereto and made a
part hereof.
REDEMPTION AND REPURCHASE OF SHARES
Section 6.1. Redemption of Shares. All Shares of the Trust shall be
redeemable, at the redemption price determined in the manner set out in this
Declaration. Redeemed or repurchased Shares may be resold by the Trust.
The Trust shall redeem the Shares of the Trust or any Series or Class thereof
at the price determined as hereinafter set forth, upon the appropriately
verified application of the record holder thereof (or upon such other form of
request as the Trustees may determine) at such office or agency as may be
designated from time to time for that purpose by the Trustees. The Trustees
may from time to time specify additional conditions, not inconsistent with
the 1940 Act, regarding the redemption of Shares in the Trust's then effective
prospectus under the Securities Act of 1933.
Section 6.2. Price. Shares shall be redeemed at their net asset value
determined as set forth in Section 7.1 hereof as of such time as the Trustees
shall have theretofore prescribed by resolution. In the absence of such
resolution, the redemption price of Shares deposited shall be the net asset
value of such Shares next determined as set forth in Section 7.1 hereof after
receipt of such application.
Section 6.3. Payment. Payment of the redemption price of Shares of the
Trust or any Series or Class thereof shall be made in cash or in property to
the Shareholder at such time and in the manner, not inconsistent with the
1940 Act or other applicable laws, as may be specified from time to time in
the Trust's then effective prospectus under the Securities Act of 1933,
subject to the provisions of Section 6.4 hereof.
Section 6.4. Effect of Suspension of Determination of Net Asset Value. If,
pursuant to Section 6.9 hereof, the Trustees shall declare a suspension of
the determination of net asset value with respect to Shares of the Trust or
of any Series thereof, the rights of Shareholders (including those who shall
have applied for redemption pursuant to Section 6.1 hereof but who shall not
yet have received payment) to have Shares redeemed and paid for by the Trust
or a Series or Class thereof shall be suspended until the termination of such
suspension is declared. Any record holder who shall have his redemption right
so suspended may, during the period of such suspension, by appropriate
written notice of revocation at the office or agency where application was
made, revoke any application for redemption not honored and withdraw any
certificates on deposit. The redemption price of Shares for which redemption
applications have not been revoked shall be the net asset value of such
Shares next determined as set forth in Section 7.1 after the termination of
such suspension, and payment shall be made within seven (7) days after the
date upon which the application was made plus the period after such application
during which the determination of net asset value was suspended.
Section 6.5. Repurchase by Agreement. The Trust may repurchase Shares
directly, or through the Distributor or another agent designated for the
purpose, by agreement with the owner thereof at a price not exceeding the net
asset value per share determined as of the time when the purchase or contract
of purchase is made or the net asset value as of any time which may be later
determined pursuant to Section 7.1 hereof, provided payment is not made for
the Shares prior to the time as of which such net asset value is determined.
Section 6.6. Redemption of Shareholder's Interest. The Trustees, in their
sole discretion, may cause the Trust to redeem all of the Shares of one or
more Series held by any Shareholder if the value of such Shares held by such
Shareholder is less than the minimum amount established from time to time by
the Trustees.
Section 6.7. Redemption of Shares in Order to Qualify as Regulated
Investment Company; Disclosure of Holding. If the Trustees shall, at any
time and in good faith, be of the opinion that direct or indirect ownership
of Shares or other securities if the Trust has or may become concentrated in
any Person to an extent which would disqualify the Trust or any Series of the
Trust as a regulated investment company under the Internal Revenue Code, then
the Trustees shall have the power by lot or other means deemed equitable by
them (i) to call for redemption by any such Person a number, or principal
amount, of Shares or other securities of the Trust or any Series of the Trust
sufficient to maintain or bring the direct or indirect ownership of Shares or
other securities of the Trust or any Series of the Trust into conformity with
the requirements for such qualification and (ii) to refuse to transfer or
issue Shares or other securities of the Trust or any Series of the Trust to
any Person whose acquisition of the Shares or other securities of the Trust
or any Series of the Trust in question would result in such disqualification.
The redemption shall be effected at the redemption price and in the manner
provided in Section 6.1.
The holders of Shares or other securities of the Trust shall upon demand
disclose to the Trustees in writing such information with respect to direct
and indirect ownership of Shares or other securities of the Trust as the
Trustees deem necessary to comply with the provisions of the Internal Revenue
Code, or to comply with the requirements of any other taxing authority.
Section 6.8. Reductions in Number of Outstanding Shares Pursuant to Net
Asset Value Formula. The Trust may also reduce the number of outstanding
Shares of the Trust or of any Series of the Trust pursuant to the provisions
of Section 7.3.
Section 6.9. Suspension of Right of Redemption. The Trust may declare a
suspension of the right of redemption or postpone the date of payment or
redemption for the whole or any part of any period (i) during which the
New York Stock Exchange is closed other than customary weekend and holiday
closings, (ii) during which trading on the New York Stock Exchange is
restricted, (iii) during which an emergency exists as a result of which
disposal by the Trust or a Series thereof of securities owned by it is not
reasonably practicable or it is not reasonably practicable for the Trust or a
Series thereof fairly to determine the value of its net assets, or (iv) during
any other period when the Commission may for the protection of Shareholders
of the Trust by order permit suspension of the right of redemption or
postponement of the date of payment or redemption; provided that applicable
rules and regulations of the Commission shall govern as to whether the
conditions prescribed in (ii), (iii), or (iv) exist. Such suspension shall
take effect at such time as the Trust shall specify but not later than the
close of business on the business day next following the declaration of
suspension, and thereafter there shall be no right of redemption or payment
on redemption until the Trust shall declare the suspension at an end, except
that the suspension shall terminate in any event on the first day on which
said stock exchange shall have reopened or the period specified in (ii) or
(iii) shall have expired (as to which in the absence of an official ruling by
the Commission, the determination of the Trust shall be conclusive). In the
case of a suspension of the right of redemption, a Shareholder may either
withdraw his request for redemption or receive payment based on the net asset
value existing after the termination of the suspension.
DETERMINATION OF NET ASSET VALUE,
NET INCOME AND DISTRIBUTIONS
Section 7.1. Net Asset Value. The value of the assets of the Trust or of
any Series or Class of the Trust may be determined on the basis of the
amortized cost of such securities, by appraisal of the securities owned by
the Trust or any Series of the Trust, or by such other method as shall be
deemed to reflect the fair value thereof, determined in good faith by or under
the direction of the Trustees. From the total value of said assets, there
shall be deducted all indebtedness, interest, taxes, payable or accrued,
including estimated taxes on unrealized book profits, expenses and management
charges accrued to the appraisal date, net income determined and declared as
a distribution and all other items in the nature of liabilities which shall
be deemed appropriate, as incurred by or allocated to any Series or Class of
the Trust, including any Special Class Expenses allocable to a Class. The
resulting amount which shall represent the total net assets of the Trust or
Series or Class thereof shall be divided by the number of Shares of the Trust
or Series or Class thereof outstanding at the time and the quotient so
obtained shall be deemed to be the net asset value of the Shares of the Trust
or Series or Class thereof. The net asset value of the Shares shall be
determined at least once on each business day, as of the close of trading on
the New York Stock Exchange or as of such other time or times as the Trustees
shall determine. The power and duty to make the daily calculations may be
delegated by the Trustees to the Investment Adviser, the Administrator, the
Custodian, the Transfer Agent or such other Person as the Trustees by
resolution may determine. The Trustees may suspend the daily determination
of net asset value to the extent permitted by the 1940 Act.
Section 7.2. Distributions to Shareholders. The Trustees shall from time
to time distribute ratably among the Shareholders of the Trust or of a Series
thereof such proportion of the net profits, surplus (including paid-in
surplus), capital, or assets of the Trust or such Series held by the Trustees
as they may deem proper. Such distributions may be made in cash or property
(including without limitation any type of obligations of the Trust or Series
or any assets thereof), and the Trustees may distribute ratably among the
Shareholders of the Trust or Series thereof additional Shares of the Trust or
Series thereof issuable hereunder in such manner, at such times, and on such
terms as the Trustees may deem proper. Such distributions may be among the
Shareholders of the Trust or Series thereof at the time of declaring a
distribution or among the Shareholders of the Trust or Series thereof at such
other date or time or dates or times as the Trustees shall determine. The
Trustees may in their discretion determine that, solely for the purposes of
such distributions, Outstanding Shares shall exclude Shares for which orders
have been placed subsequent to a specified time on the date the distribution
is declared or on the next preceding day if the distribution is declared as
of a day on which the New York Stock Exchange is not open for business, all
as described in the then effective prospectus under the Securities Act of
1933. The Trustees may always retain from the net profits such amount as
they may deem necessary to pay the debts or expenses of the Trust or a Series
thereof or Class thereof or to meet obligations of the Trust or a Series or
Class thereof, or as they may deem desirable to use in the conduct of its
affairs or to retain for future requirements or extensions of the business.
The Trustees may adopt and offer to Shareholders such dividend reinvestment
plans, cash dividend payout plans or related plans as the Trustees shall deem
appropriate. The Trustees may in their discretion determine that an account
administration fee or other similar charge may be deducted directly from the
income and other distributions paid on Shares to a Shareholder's account in
each Series.
Inasmuch as the computation of net income and gains for Federal income tax
purposes may vary from the computation thereof on the books, the above
provisions shall be interpreted to give the Trustees the power in their
discretion to distribute for any fiscal year as ordinary dividends and as
capital gains distributions, respectively, additional amounts sufficient to
enable the Trust or a Series or Class thereof to avoid or reduce liability
for taxes.
Section 7.3. Determination of Net Income; Constant Net Asset Value;
Reduction of Outstanding Shares. Subject to Section 5.11 hereof, the net
income of the Series of the Trust shall be determined in such manner as the
Trustees shall provide by resolution. Expenses of the Trust or of a Series
thereof, including the advisory or management fee, shall be accrued each day.
Each Class shall bear only expenses relating to its Shares and an allocable
share of Series expenses in accordance with such policies as may be
established by the Trustees from time to time and as are not inconsistent
with the provisions of this Declaration of Trust or of any applicable document
filed by the Trust with the Commission or of the Internal Revenue Code of
1986, as amended. Such net income may be determined by or under the
direction of the Trustees as of the close of trading on the New York Stock
Exchange on each day on which such market is open or as of such other time or
times as the Trustees shall determine, and, except as provided herein, all
the net income of any Series or Class of the Trust, as so determined, may be
declared as a dividend on the Outstanding Shares of such Series. If, for any
reason, the net income of any Series of the Trust determined at any time is a
negative amount, the Trustees shall have the power with respect to such Series
(i) to offset each Shareholder's pro rata share of such negative amount from
the accrued dividend account of such Shareholder, or (ii) to reduce the
number of Outstanding Shares of such Series by reducing the number of Shares
in the account of such Shareholder by that number of full and fractional
Shares which represents the amount of such excess negative net income, or
(iii) to
cause to be recorded on the books of the Trust an asset account in the amount
of such negative net income, which account may be reduced by the amount,
provided that the same shall thereupon become the property of the Trust with
respect to such Series and shall not be paid to any Shareholder, of dividends
declared thereafter upon the Outstanding Shares of such Series on the day
such negative net income is experienced, until such asset account is reduced
to zero or (iv) to combine the methods described in clauses (i) and (ii) and
(iii) of this sentence, in order to cause the net asset value per Share of
such Series to remain at a constant amount per Outstanding Share immediately
after each such determination and declaration. The Trustees shall also have
the power to fail to declare a dividend out of net income for the purpose of
causing the net asset value per Share to be increased to a constant amount.
The Trustees shall have full discretion to determine whether any cash or
property received shall be treated as income or as principal and whether any
item of expense shall be charged to the income or the principal account, and
their determination made in good faith shall be conclusive upon the
Shareholders. In the case of stock dividends received, the Trustees shall
have full discretion to determine, in the light of the particular
circumstances, how much if any of the value thereof shall be treated as
income, the balance, if any, to be treated as principal. The Trustees shall
not be required to adopt, but may at any time adopt, discontinue or amend
the practice of maintaining the net asset value per Share of a Series at a
constant amount.
Section 7.4. Power to Modify Foregoing Procedures. Notwithstanding any of
the foregoing provisions of this Article VII, but subject to Section 5.11
hereof, the Trustees may prescribe, in their absolute discretion, such other
bases and times for determining the per Share net asset value of the Shares
of the Trust or a Series thereof or net income of the Trust or a Series
thereof, or the declaration and payment of dividends and distributions as
they may deem necessary or desirable. Without limiting the generality of the
foregoing, the Trustees may establish several Series of Shares in accordance
with Section 5.11, and declare dividends thereon in accordance with
Section 5.11(d).
DURATION; TERMINATION OF TRUST OR A SERIES
OR A CLASS; AMENDMENT; MERGERS, ETC.
Section 8.1. Duration. The Trust shall continue without limitation of time
but subject to the provisions of this Article VIII.
Section 8.2. Termination of the Trust, a Series or a Class. (a) The Trust
or any Series or Class thereof may be terminated by (i) the affirmative vote
of the holders of not less than a majority of the Shares outstanding and
entitled to vote at any meeting of Shareholders of the Trust or the
appropriate Series or Class thereof or (ii) an instrument in writing signed
by a majority of the Trustees, stating that a majority of the Trustees has
determined that the continuation of the Trust or a Series or Class thereof
is not in the best interest of such Series or Class, the Trust or their
respective shareholders as a result of such factors or events adversely
affecting the ability of such Series or the Trust to conduct its business
and operations in an economically viable manner. Such factors and events may
include the inability of a Series or Class or the Trust to maintain its
assets at an appropriate size, changes in laws or regulations governing the
Series or Class or the Trust or affecting assets of the type in which such
Series or Class or the Trust invests or economic developments or trends
having a significant adverse impact on the business or operations of such
Series or the Trust. Upon the termination of the Trust or the Series,
The Trust or the Series shall carry on no business except for the purpose of
winding up its affairs.
The Trustees shall proceed to wind up the affairs of the Trust or the Series
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 or the Series, collect its
assets, sell, convey, assign, exchange, transfer or otherwise dispose of all
or any part of the remaining Trust Property or Trust Property allocated or
belonging to such Series 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 do all
other acts appropriate to liquidate its business; provided that any sale,
conveyance, assignment, exchange, transfer or other disposition of all or
substantially all the Trust Property or Trust Property allocated or belonging
to such Series shall require Shareholder approval in accordance with Section
8.4 hereof.
After paying or adequately providing for the payment of all liabilities, and
upon receipt of such releases, indemnities and refunding agreements as they
deem necessary for their protection, the Trustees may distribute the remaining
Trust Property or the remaining property of the terminated Series, in cash or
in kind or partly each, among the Shareholders of the Trust or the Series
according to their respective rights. Nothing in this Declaration shall
preclude the Trustees from distributing such remaining proceeds or assets so
that holders of the Shares of a particular Class of the Trust or any affected
Series receive as their ratable distribution shares solely of an analogous
class, as determined by the Trustees, of another trust, corporation,
association or other organization.
After termination of the Trust or the Series and distribution to the
Shareholders as herein provided, a majority of the Trustees (or an officer
of the Trust pursuant to a vote of a majority of the Trustees) shall
execute and lodge among the records of the Trust and file with the Office
of the Secretary of the Commonwealth of Massachusetts an instrument in
writing setting forth the fact of such termination, and the Trustees shall
thereupon be discharged from all further liabilities and duties with respect
to the Trust or the terminated Series, and the rights and interests of all
Shareholders of the Trust or the terminated Series shall thereupon cease.
Section 8.3. Amendment Procedure. (a) This Declaration may be amended by a
vote of the holders of a majority of the Shares outstanding and entitled to
vote or by any instrument in writing, without a meeting, signed by a majority
of the Trustees and consented to by the holders of a majority of the Shares
outstanding and entitled to vote. The Trustees may amend this Declaration
without the vote or consent of Shareholders 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 regulated investment company
provisions of the Internal Revenue Code, but the Trustees shall not be liable
for failing so to do. The Trustees may also amend this Declaration without
the vote or consent of Shareholders if they deem it necessary or desirable to
change the name of the Trust or to make any other changes in the Declaration
which do not materially affect the rights of Shareholders hereunder.
(b) No amendment may be made under this Section 8.3 which would change
any rights with respect to any Shares of the Trust or Series thereof by
reducing the amount payable thereon upon liquidation of the Trust or Series
thereof or by diminishing or eliminating any voting rights pertaining
thereto, except with the vote or consent of the holders of a majority of the
Shares of the Trust or such Series 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) Subject to the foregoing, any amendment shall be effective as
provided in the instrument containing the terms of such amendment or, if
there is no provision therein with respect to effectiveness, upon the
execution of such instrument and of a certificate (which may be a part of
such instrument) executed by a Trustee or officer to the effect that such
amendment has been duly adopted. Copies of the amendment to this Declaration
shall be filed as specified in Section 1 of Article X. 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 be effective upon filing
as specified in Section 1 of Article X.
Section 8.4. Merger, Consolidation and Sale of Assets. The Trust or any
Series thereof may merge or consolidate with any other corporation,
association, trust or other organization or may sell, lease or exchange all
or substantially all of the Trust Property or Trust Property allocated or
belonging to such Series, including its good will, upon such terms and
conditions and for such consideration when and as authorized at any meeting
of Shareholders called for the purpose by the affirmative vote of the holders
of a majority of the Shares of the Trust or such Series outstanding and
entitled to vote, or by an instrument or instruments in writing without a
meeting, consented to by the holders of a majority of the Shares of the Trust
or such Series, provided, however, that any such merger, consolidation, sale,
lease or exchange shall be deemed for all purposes to have been accomplished
under and pursuant to Massachusetts law.
Section 8.5. Incorporation. With the approval of the holders of a majority
of the Shares of the Trust or a Series thereof 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 allocated or belonging to such Series or
to carry on any business in which the Trust shall directly or indirectly have
any interest, and to sell, convey and transfer the Trust Property or the
Trust Property allocated or belonging to such Series to any such corporation,
trust, 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, or any corporation, partnership,
trust, association or organization in which the Trust or such Series holds
or is about to acquire shares or any other interest. 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.
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 certified by independent public
accountants.
MISCELLANEOUS
Section 10.1. Execution and Filing. A copy of this Declaration and of each
amendment hereto shall be filed by the Trustees with the Secretary of the
Commonwealth of Massachusetts and the Boston City Clerk, as well as any other
governmental office where such filing may from time to time be required.
Anyone dealing with the Trust may rely on a certificate by an officer or
Trustee of the Trust as to whether or not any such amendments to this
Declaration have been made and as to any matters in connection with the Trust
hereunder, and with the same effect as if it were the original, may rely on
a copy certified by an officer or Trustee of the Trust to be a copy of this
Declaration or of any such amendments.
Section 10.2. 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 10.3. 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 10.4. 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 (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 10.5. Provisions in Conflict with Law or Regulations.
(a) The provisions of this 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 provision shall be deemed never to have constituted a part
of this Declaration; provided, however, that such determination shall not
affect any of the remaining provisions of this Declaration or render invalid
or improper any action taken or omitted prior to such determination.
(b) If any provision of this Declaration shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any
manner affect such provisions in any other jurisdiction or any other
provision of this Declaration in any jurisdiction.
Section 10.6. The Trustees shall maintain a resident agent in The
Commonwealth of Massachusetts which agent shall initially be CT Corporation
System, 2 Oliver Street, Boston, Massachusetts 02109. The Trustees may
designate from time to time a successor resident in The Commonwealth of
Massachusetts.
Schedule A
Series of the Trust
PaineWebber Global Equity Fund
PaineWebber Tactical Allocation Fund
Classes of Shares of Each Series
An unlimited number of shares of beneficial interest have been established by
the Board as Class A shares, Class B shares, Class C shares and Class Y
shares of each of the above Series. Each of the Class A shares, Class B
shares, Class C shares and Class Y shares of a Series represents interests
in the assets of only that Series and has the same preferences, conversion
and other rights, voting powers, restrictions, limitations as to dividends,
qualifications and terms and conditions of redemption of shares, except as
provided in the Trust's Declaration of Trust and as set forth below with
respect to the Class B shares of each Series:
Each Class B share, other than a share purchased through the reinvestment of
a dividend or a distribution with respect to the Class B share, shall be
converted automatically, and without any action or choice on the part of the
holder thereof, into Class A shares of the same Series, based on the relative
net asset value of each such class at the time of the calculation of the net
asset value of such class of shares on the date that is the first Business
Day (as defined in the Series' prospectus and/or statement of additional
information) of the month in which the sixth anniversary of the issuance of
such Class B shares occurs (which, for the purpose of calculating the holding
period required for conversion, shall mean (i) the date on which the issuance
of such Class B shares occurred or (ii) for Class B shares obtained through
an exchange, the date on which the issuance of the Class B shares of an
eligible PaineWebber fund occurred, if such shares were exchanged directly,
or through a series of exchanges for the Series' Class B shares (the
"Conversion Date")).
Each Class B share purchased through the reinvestment of a dividend or a
distribution with respect to the Class B shares and the dividends and
distributions on such shares shall be segregated in a separate sub-account
on the stock records of the Series for each of the holders of record thereof.
On any Conversion Date, a number of the shares held in the sub-account of the
holder of record of the share or shares being converted, calculated in
accordance with the next following sentence, shall be converted
automatically, and without any action or choice on the part of the holder
thereof, into Class A shares of the same Series. The number of shares in the
holder's sub-account so converted shall bear the same relation to the total
number of shares maintained in the sub-account on the Conversion Date as the
number of shares of the holder converted on the Conversion Date pursuant to
Paragraph 2(a) hereof bears to the total number of Class B shares of the
holder on the Conversion Date not purchased through the automatic
reinvestment of dividends or distributions with respect to the Class B
shares.
The number of Class A shares into which a Class B share is converted pursuant
to paragraphs 1 and 2 hereof shall equal the number (including for this
purpose fractions of a share) obtained by dividing the net asset value per
share of the Class B shares for purposes of sales and redemptions thereof at
the time of the calculation of the net asset value on the Conversion Date by
the net asset value per share of the Class A shares for purposes of sales
and redemptions thereof at the time of the calculation of the net asset value
on the Conversion Date.
On the Conversion Date, the Class B shares converted into Class A shares
will cease to accrue dividends and will no longer be outstanding and the
rights of the holders thereof will cease (except the right to receive
declared but unpaid dividends to the Conversion Date).
For purposes of Paragraph 1 above, the term "eligible PaineWebber fund"
includes any and all mutual funds for which PaineWebber Incorporated or
Mitchell Hutchins Asset Management Inc. serves as investment adviser that
offer shares with a contingent deferred sales charge imposed upon certain
redemptions of such shares and that are exchangeable with the Class B shares
of the Series.
IN WITNESS WHEREOF, the undersigned, being the all the Trustees of the
Trust, have executed this Amended and Restated Declaration of Trust as
of the day and year first above written.
/s/ Margo N. Alexander
Margo N. Alexander
/s/ Meyer Feldberg
Meyer Feldberg
/s/ E. Garrett Bewkes, Jr.
Garrett Bewkes, Jr.
/s/ George W. Gowen
George W. Gowen
/s/ Richard Q. Armstrong
Richard Q. Armstrong
/s/ Frederic V. Malek
Frederic V. Malek
/s/ Richard R. Burt
Richard R. Burt
/s/ Carl W. Schafer
Carl W. Schafer
/s/ Mary C. Farrell
Mary C. Farrell
PaineWebber Investment Trust
Attachment 1
1. The principal place of business of PaineWebber Investment Trust
("Trust") is:
1285 Avenue of the Americas
New York, New York 10019
2. The Trustees of the Trust and their business addresses* are:
Margo N. Alexander
Richard Q. Armstrong
78 West Brother Drive
Greenwich, CT 06830
E. Garrett Bewkes, Jr.
Richard R. Burt
1101 Connecticut Avenue, N.W.
Washington, D. C. 20036
Mary C. Farrell
Meyer Feldberg
Columbia University
101 Uris Hall
New York, New York 10027
George W. Gowen
666 Third Avenue
New York, New York 10017
Frederic V. Malek
1455 Pennsylvania Avenue, N.W.
Suite 350
Washington, D. C. 20004
Carl W. Schafer
P. O. Box 1164
Princeton, N. J. 08542
* Unless otherwise indicated, the business address of each Trustee is
1285 Avenue of the Americas, New York, New York 10019
130Exhibit No. 1DC-216635.02
