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<PAGE> PAGE 7
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<PAGE> PAGE 10
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<PAGE> PAGE 11
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<PAGE> PAGE 12
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SIGNATURE PAUL SCHUBERT
TITLE TREASURER
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
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<GROSS-EXPENSE> 424
<AVERAGE-NET-ASSETS> 52632
<PER-SHARE-NAV-BEGIN> 16.93
<PER-SHARE-NII> (0.11)
<PER-SHARE-GAIN-APPREC> 3.18
<PER-SHARE-DIVIDEND> 0
<PER-SHARE-DISTRIBUTIONS> (2.48)
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<PER-SHARE-NAV-END> 18.28
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<AVG-DEBT-OUTSTANDING> 0
<AVG-DEBT-PER-SHARE> 0
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 6
<CIK> 0000873803
<NAME> PAINEWEBBER INVESTMENT TRUST
<SERIES>
<NUMBER> 1
<NAME> PAINEWEBBER GLOBAL EQUITY FUND Y
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> OCT-31-1997
<PERIOD-START> NOV-01-1997
<PERIOD-END> APR-30-1998
<INVESTMENTS-AT-COST> 54005
<INVESTMENTS-AT-VALUE> 67767
<RECEIVABLES> 677
<ASSETS-OTHER> 443
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<PAYABLE-FOR-SECURITIES> 458
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<OTHER-ITEMS-LIABILITIES> 3249
<TOTAL-LIABILITIES> 3707
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<PAID-IN-CAPITAL-COMMON> 48817
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</TABLE>
Exhibit No. 1
AMENDED AND RESTATED DECLARATION OF
TRUST
OF
PAINEWEBBER INVESTMENT TRUST II
Dated February 11, 1998
AMENDED AND RESTATED DECLARATION OF
TRUST
OF
PAINEWEBBER INVESTMENT TRUST II
THE DECLARATION OF TRUST of PaineWebber
Investment Trust II is made on the 10th day of August, 1992
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.
ARTICLE I
NAME AND DEFINITIONS
Section 1.1. Name. The name of the trust created
hereby is "PaineWebber Investment Trust II."
Section 1.2. Definitions. Wherever they are used
herein, the following terms have the following respective
meanings:
(a) "Administrator" means the party, other
than the Trust, to the contract described in Section 3.3
hereof.
(b) "By-laws" means the By-laws referred to
in Section 2.8 hereof, as from time to time amended.
(c) "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.
(d) 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.
(e) "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).
(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.
(g) "Distributor" means the party, other than
the Trust, to the contract described in Section 3.1 hereof.
(h) The "1940 Act" means the Investment
Company Act of 1940, as amended from time to time.
(i) "Fund" or "Funds" individually or
collectively means the separate Series of Shares of the
Trust, together with the assets and liabilities assigned
thereto.
(j) "His" shall include the feminine and
neuter, as well as the masculine, genders.
(k) "Investment Adviser" means the party,
other than the Trust, to the contract described in Section
3.2 hereof.
(l) "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.
(m) "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.
(n) "Shareholder" means record owner of
Outstanding Shares.
(o) "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.
(p) "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.
(q) "Trust" means PaineWebber Investment
Trust II.
(r) "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.
(s) 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 as 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.
ARTICLE II
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 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:
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) To adopt on behalf of the Trust, any
Series or Class of any Series thereof.
(j) 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 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 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 this Trust or any Series of
the Trust or the names of the Trustee, 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.
ARTICLE III
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:
(i) 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
(ii) 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 of 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.
ARTICLE IV
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:
(i) every person who is, or
has been, a Trustee or officer or 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;
(ii) the words "claim,"
"action," "suit," or "proceeding" shall apply
to all claims, actions, suits, or proceedings
(civil, criminal, or other, including appeals),
actual or threatened; and the words
"liability" and "expenses" shall include,
without limitation, attorneys' fees, costs,
judgments, amounts paid in settlement, fines,
penalties and other liabilities.
(b) No indemnification shall be provided hereunder
to a Trustee or officer:
(i) 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;
(ii) 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;
(iii) 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.
(c) 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.
(d) 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:
(i) 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
(ii) 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.
ARTICLE V
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 of 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 divide 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 Shares of any Series into
two or more Classes, the following provisions shall be
applicable:
(a) 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.
(b) 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.
(c) 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."
(d) 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.
(e) 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.
(f) 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; and (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 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.
ARTICLE VI
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 of 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.
ARTICLE VII
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 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).
ARTICLE VIII
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,
(i) The Trust or the Series shall carry
on no business except for the purpose of
winding up its affairs.
(ii) The Trustees shall proceed to
wind up the affairs of the Trust or the Series
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,
assessment, 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.
(iii) After paying or adequately
providing for the payment of all liabilities,
and upon receipt of such releases,
indemnities and refunding agreements as they
deem necessary for their protection, the
Trustees may distribute the remaining Trust
Property or the remaining property of the
terminated Series, 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.
(b) 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
interest 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.
ARTICLE IX
REPORTS TO SHAREHOLDERS
The Trustees shall at least semi-annually submit to
the Shareholders a written financial report of the
transactions of the Trust, including financial statements
which shall at least annually be certified by independent
public accountants.
ARTICLE X
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 Emerging Markets Equity Fund
Classes of Shares of Each Series
An unlimited number of shares of beneficial interest have been
established by the Board as Class A shares, Class B shares,
Class C shares and Class Y shares of each of the above Series.
Each of the Class A shares, Class B shares, Class C shares and
Class Y shares of a Series represents interests in the assets of
only that Series and has the same preferences, conversion
and other rights, voting powers, restrictions, limitations as
to dividends, qualifications and terms and conditions of
redemption of shares, except as provided in the Trust's
Declaration of Trust and as set forth below with respect to
the Class B shares of each Series:
1. Each Class B share, other than a share purchased
through the reinvestment of a dividend or a
distribution with respect to the Class B share,
shall be converted automatically, and without
any action or choice on the part of the holder
thereof, into Class A shares of the same Series,
based on the relative net asset value of each such
class at the time of the calculation of the net
asset value of such class of shares on the date
that is the first Business Day (as defined in the
Series' prospectus and/or statement of additional
information) of the month in which the sixth
anniversary of the issuance of such Class B
shares occurs (which, for the purpose of
calculating the holding period required for
conversion, shall mean (i) the date on which the
issuance of such Class B shares occurred or (ii)
for Class B shares obtained through an
exchange, the date on which the issuance of the
Class B shares of an eligible PaineWebber fund
occurred, if such shares were exchanged directly,
or through a series of exchanges for the Series'
Class B shares (the "Conversion Date")).
2. Each Class B share purchased through the
reinvestment of a dividend or a distribution with
respect to the Class B shares and the dividends
and distributions on such shares shall be
segregated in a separate sub-account on the
stock records of the Series for each of the
holders of record thereof. On any Conversion
Date, a number of the shares held in the sub-
account of the holder of record of the share or
shares being converted, calculated in accordance
with the next following sentence, shall be
converted automatically, and without any action
or choice on the part of the holder thereof, into
Class A shares of the same Series. The number
of shares in the holder's sub-account so
converted shall bear the same relation to the
total number of shares maintained in the sub-
account on the Conversion Date as the number
of shares of the holder converted on the
Conversion Date pursuant to Paragraph 2(a)
hereof bears to the total number of Class B
shares of the holder on the Conversion Date not
purchased through the automatic reinvestment of
dividends or distributions with respect to the
Class B shares.
3. The number of Class A shares into which a Class
B share is converted pursuant to paragraphs 1
and 2 hereof shall equal the number (including
for this purpose fractions of a share) obtained by
dividing the net asset value per share of the Class
B shares for purposes of sales and redemptions
thereof at the time of the calculation of the net
asset value on the Conversion Date by the net
asset value per share of the Class A shares for
purposes of sales and redemptions thereof at the
time of the calculation of the net asset value on
the Conversion Date.
4. On the Conversion Date, the Class B shares
converted into Class A shares will cease to
accrue dividends and will no longer be
outstanding and the rights of the holders thereof
will cease (except the right to receive declared
but unpaid dividends to the Conversion Date).
For purposes of Paragraph 1 above, the term "eligible
PaineWebber 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.
E. 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
- -3-
DC-216527.02
Form N-SAR Exhibit
File # 811-6292
Global Equity Fund
Item 77D. Policies with respect to security investments
The Fund's policies with respect to security
investments were revised by its Board to permit investment
in a wider variety of money market instruments and
vehicles. These changes were disclosed in the Fund's
prospectus dated March 1, 1998.
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.
ARTICLE I
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:
(a) "Administrator" means the party, other than
the Trust, to the contract described in Section 3.3 hereof.
(b) "By-laws" means the By-laws referred to in
Section 2.8 hereof, as from time to time amended.
(c) "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.
(d) 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.
(e) "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).
(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.
(g) "Distributor" means the party, other than the
Trust, to the contract described in Section 3.1 hereof.
(h) The "1940 Act" means the Investment
Company Act of 1940, as amended from time to time.
(i) "Fund" or "Funds" individually or
collectively means the separate Series of Shares of the
Trust, together with the assets and liabilities assigned
thereto.
(j) "His" shall include the feminine and neuter,
as well as the masculine, genders.
(k) "Investment Adviser" means the party, other
than the Trust, to the contract described in Section 3.2
hereof.
(l) "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.
(m) "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.
(n) "Shareholder" means record owner of
Outstanding Shares.
(o) "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.
(p) "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.
(q) "Trust" means PaineWebber Investment
Trust.
(r) "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.
(s) 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 as 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.
ARTICLE II
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:
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) To adopt on behalf of the Trust, any Series
or Class of any Series thereof.
(j) 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.
ARTICLE III
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:
(i) 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
(ii) 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.
ARTICLE IV
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:
(i) 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;
(ii) the words "claim," "action," "suit," or
"proceeding" shall apply to all claims, actions, suits
or proceedings (civil, criminal, or other, including
appeals), actual or threatened; and the words
"liability" and "expenses" shall include, without
limitation, attorneys' fees, costs, judgments, amounts
paid in settlement, fines, penalties and other
liabilities.
(b) No indemnification shall be provided
hereunder to a Trustee or officer:
(i) 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;
(ii) 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;
(iii) 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.
(c) 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.
(d) 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:
(i) 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
(ii) 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.
ARTICLE V
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:
(a) 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.
(b) 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.
(c) 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".
(d) 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.
(e) 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.
(f) 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.
ARTICLE VI
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.
ARTICLE VII
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).
ARTICLE VIII
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,
(i) The Trust or the Series shall carry on
no business except for the purpose of winding up its
affairs.
(ii) The Trustees shall proceed to wind
up the affairs of the Trust or the Series 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.
(iii) After paying or adequately providing
for the payment of all liabilities, and upon receipt of
such releases, indemnities and refunding agreements
as they deem necessary for their protection, the
Trustees may distribute the remaining Trust
Property or the remaining property of the terminated
Series, 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.
(b) 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.
ARTICLE IX
REPORTS TO SHAREHOLDERS
The Trustees shall at least semi-annually submit to
the Shareholders a written financial report of the
transactions of the Trust, including financial statements
which shall at least annually be certified by independent
public accountants.
ARTICLE X
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:
1. Each Class B share, other than a share purchased
through the reinvestment of a dividend or a
distribution with respect to the Class B share,
shall be converted automatically, and without
any action or choice on the part of the holder
thereof, into Class A shares of the same Series,
based on the relative net asset value of each such
class at the time of the calculation of the net
asset value of such class of shares on the date
that is the first Business Day (as defined in the
Series' prospectus and/or statement of additional
information) of the month in which the sixth
anniversary of the issuance of such Class B
shares occurs (which, for the purpose of
calculating the holding period required for
conversion, shall mean (i) the date on which the
issuance of such Class B shares occurred or (ii)
for Class B shares obtained through an
exchange, the date on which the issuance of the
Class B shares of an eligible PaineWebber fund
occurred, if such shares were exchanged directly,
or through a series of exchanges for the Series'
Class B shares (the "Conversion Date")).
2. Each Class B share purchased through the
reinvestment of a dividend or a distribution with
respect to the Class B shares and the dividends
and distributions on such shares shall be
segregated in a separate sub-account on the
stock records of the Series for each of the
holders of record thereof. On any Conversion
Date, a number of the shares held in the sub-
account of the holder of record of the share or
shares being converted, calculated in accordance
with the next following sentence, shall be
converted automatically, and without any action
or choice on the part of the holder thereof, into
Class A shares of the same Series. The number
of shares in the holder's sub-account so
converted shall bear the same relation to the
total number of shares maintained in the sub-
account on the Conversion Date as the number
of shares of the holder converted on the
Conversion Date pursuant to Paragraph 2(a)
hereof bears to the total number of Class B
shares of the holder on the Conversion Date not
purchased through the automatic reinvestment of
dividends or distributions with respect to the
Class B shares.
3. The number of Class A shares into which a Class
B share is converted pursuant to paragraphs 1
and 2 hereof shall equal the number (including
for this purpose fractions of a share) obtained by
dividing the net asset value per share of the Class
B shares for purposes of sales and redemptions
thereof at the time of the calculation of the net
asset value on the Conversion Date by the net
asset value per share of the Class A shares for
purposes of sales and redemptions thereof at the
time of the calculation of the net asset value on
the Conversion Date.
4. On the Conversion Date, the Class B shares
converted into Class A shares will cease to
accrue dividends and will no longer be
outstanding and the rights of the holders thereof
will cease (except the right to receive declared
but unpaid dividends to the Conversion Date).
For purposes of Paragraph 1 above, the term "eligible
PaineWebber 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.
E. 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
1
3
Exhibit No. 1
DC-216635.02
