EXHIBIT 1
((FORM OF AMENDED AND RESTATED))
((DECLARATION OF TRUST))
[DATED MAY 10, 1995]
((Fidelity Covington Trust))
The language to be added to the current Declaration of Trust is ((underlined)),
and the language to be deleted is set forth in [brackets]. Headings that were
underlined in the trust's current Declaration of Trust remain underlined in this
Exhibit.
((AMENDED AND RESTATED DECLARATION OF TRUST)), made [May 10, 1995]
______, 2000 by [Arthur S. Loring, Stephen P. Jonas, and John H. Costello]
((each of the Trustees whose signature is affixed hereto)) (the "Trustees").
WHEREAS, the Trustees desire to [establish a trust for the
investment and reinvestment of funds contributed thereto;] ((amend and restate
this Declaration of Trust for the sole purpose of supplementing the Declaration
of Trust to incorporate amendments duly adopted;))
((WHEREAS, this Trust was initially made on May 10, 1995 by Arthur S.
Loring, Stephen P. Jonas, and John H. Costello in order to establish a trust for
the investment and reinvestment of funds contributed thereto; and))
NOW, THEREFORE, the Trustees declare that all money and property
contributed to the trust hereunder shall be held and managed in [the]
[T]((t))rust under this ((Amended and Restated)) Declaration of Trust as herein
set forth below.
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ARTICLE I
NAME AND DEFINITIONS
NAME
SECTION 1. This Trust shall be known as "Fidelity Covington Trust."
DEFINITIONS
SECTION 2. Wherever used herein, unless otherwise required by the
context or specifically provided:
(a) The [T]((t))erms "Affiliated Person," "Assignment,"
"Commission," "Interested Person," "Majority Shareholder Vote" (the
67% or 50% requirement of the third sentence of Section 2(a)(42) of
the 1940 Act, whichever may be applicable)((,)) and "Principal
Underwriter" shall have the meanings given them in the 1940 Act, as
[amended from time to time] ((modified by or interpreted by any
applicable order or orders of the Commission or any rules or
regulations adopted or interpretative releases of the Commission
thereunder;))
(b) [The "Trust" refers to Fidelity Real Estate Asset
Manager Fund and reference to the Trust, when applicable to one or
mores Series of the Trust, shall refer to any such Series] (("Bylaws"
shall mean the bylaws of the Trust, if any, as amended from time to
time));
(((c) "Class" refers to the class of Shares of a Series of
the Trust established in accordance with the provisions of Article
III));
(((d) "Declaration of Trust" means this Amended and
Restated Declaration of Trust, as further amended or restated, from
time to time));
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[(c)](((e))) "Net Asset Value" means the net asset value of
each Series of the Trust ((or Class thereof)) determined in the
manner provided in Article X, Section 3;
[(d)](((f))) "Shareholder" means a record owner of Shares
of the Trust;
[(e) The "Trustees" refer to the individual trustees in
their capacity as trustees hereunder of the Trust and their successor
or successors for the time being in office as such trustee or
trustees;]
[(f)](g) "Shares" means the equal proportionate
transferable units of interest into which the beneficial interest of
the Trust or each Series shall be divided from time to time,
including such [c]((C))lass or [c]((C))lasses of Shares as the
Trustees may from time to time create and establish and including
fractions of Shares as well as whole Shares as consistent with the
requirements of Federal and/or state securities laws;
[(g) The "1940 Act" refers to the Investment Company Act of
1940, as amended from time to time; and]
(h) "Series" refers to any series of Shares of the Trust
established in accordance with the provisions of Article III[.] ((;))
(((i) "Trust" refers to Fidelity Covington Trust and
reference to the Trust, when applicable to one or more Series of the
Trust, shall refer to any such Series));
(((j) "Trustees" refer to the individual trustees in their
capacity as trustees hereunder of the Trust and their successor or
successors for the time being in office as such trustee or trustees;
and))
(((k) "1940 Act" refers to the Investment Company Act of
1940, as amended from time to time)).
((ARTICLE II))
PURPOSE OF TRUST
The purpose of this Trust is to provide investors a continuous source
of managed investment in securities.
ARTICLE ((III))
BENEFICIAL INTEREST
SHARES OF BENEFICIAL INTEREST
SECTION 1. The beneficial interest in the Trust shall be divided into
such transferable Shares of one or more separate and distinct Series or
[c]((C))lasses ((of Series)) as the Trustees shall((,)) from time to time((,))
create and establish. The number of ((authorized)) Shares ((of each Series, and
Class thereof,)) is unlimited((.)) [and] [e]((E))ach Share shall be without par
value and shall be fully paid and nonassessable. The Trustees shall have full
power and authority, in their sole discretion((,)) and without obtaining any
prior authorization or vote of the Shareholders [or] of any Series or
[c]((C))lass [of Shareholders] of the Trust (((a))) to create and establish (and
to change in any manner) Shares or any Series or [c]((C))lasses thereof with
such preferences, voting powers, rights((,)) and privileges as the Trustees
may((,)) from time to time((,)) determine[,] ((;)) (((b))) to divide or combine
the Shares or any Series or [c]((C))lasses thereof into a greater or lesser
number[,] ((; (c))) to classify or reclassify any issued Shares into one or more
Series ((or Classes)) of Shares[,] ((; (d))) to abolish any one or more Series
or [c]((C))lasses of Shares[,] ((;)) and (((e))) to take such other action with
respect to the Shares as the Trustees may deem desirable.
ESTABLISHMENT OF SERIES ((AND CLASSES))
SECTION 2. The establishment of any Series ((or Class thereof)) shall
be effective upon the adoption of a resolution by a majority of the then
Trustees setting forth such establishment and designation and the relative
rights and preferences of the Shares of such Series ((or Class, whether directly
in such resolution or by reference to, or approval of, another document that
sets forth such relative rights and preferences of the Shares of such Series or
Class including, without limitation, any registration statement of the Trust, or
as otherwise provided in such resolution)). At any time that there are no Shares
outstanding of any particular Series ((or Class)) previously established and
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designated, the Trustees may by a majority vote abolish [that] ((such)) Series
((or Class)) and the establishment and designation thereof.
OWNERSHIP OF SHARES
SECTION 3. The ownership of Shares shall be recorded in the books of
the Trust ((or a transfer or similar agent)). The Trustees may make such rules
as they consider appropriate for the transfer of Shares and similar matters. The
record books of the Trust ((as kept by)) the Trust ((or by any transfer or
similar agent, as the case may be,)) shall be conclusive as to who are the
holders of Shares and as to the number of Shares held from time to time by each
Shareholder.
INVESTMENT IN THE TRUST
SECTION 4. The Trustees shall accept investments in the Trust from
such persons and on such terms as they may((,)) from time to time((,))
authorize. Such investments may be in the form of cash((,)) [or] securities,
((or other property)) in which the appropriate Series is authorized to invest,
valued as provided in Article X, Section 3. After the date of the initial
contribution of capital, the number of Shares to represent the initial
contribution may in the Trustees' discretion be considered as outstanding((,))
and the amount received by the Trustees on account of the contribution shall be
treated as an asset of the Trust. Subsequent investments in the Trust shall be
credited to each Shareholder's account in the form of full Shares at the Net
Asset Value per Share next determined after the investment is received;
provided, however, that the Trustees may, in their sole discretion[,] (a) impose
a sales charge ((or other fee)) upon investments in the Trust ((or Series or any
Classes thereof)), and (b) issue fractional Shares.
ASSETS AND LIABILITIES OF SERIES AND CLASSES
SECTION 5. All consideration received by the Trust for the issue or
sale of Shares of a particular Series, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof, including any proceeds derived from the sale, exchange((,)) or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall be
referred to as "assets belonging to" that Series. In addition, any assets,
income, earnings, profits, and proceeds thereof, funds, or payments [which]
((that)) are not readily identifiable as belonging to any particular Series ((or
Class)), shall be allocated by the Trustees between and among one or more of the
Series ((or Classes)) in such manner as they, in their sole discretion, deem
fair and equitable. Each such allocation shall be conclusive and binding upon
the Shareholders of all Series ((or Classes)) for all purposes[,] and shall be
referred to as assets belonging to that Series ((or Class)). The assets
belonging to a particular Series shall be so recorded upon the books of the
Trust ((or of its agent or agents)) and shall be held by the Trustees in trust
for the benefit of the holders of Shares of that Series.
The assets belonging to each particular Series shall be charged with
the liabilities of that Series and all expenses, costs, charges((,)) and
reserves attributable to that Series((, except that liabilities and expenses
may, in the Trustees' discretion, be allocated solely to a particular Class and,
in which case, shall be borne by that Class)). Any general liabilities,
expenses, costs, charges((,)) or reserves of the Trust which are not readily
identifiable as belonging to any particular Series ((or Class)) shall be
allocated and charged by the Trustees between or among any one or more of the
Series ((or Classes)) in such manner as the Trustees((,)) in their sole
discretion((,)) deem fair and equitable[,] and shall be referred to as
"liabilities belonging to" that Series ((or Class)). Each such allocation shall
be conclusive and binding upon the Shareholders of all Series ((or Classes)) for
all purposes. Any creditor of any Series may look only to the assets of that
Series to satisfy such creditor's debt. ((No Shareholder or former Shareholder
of any Series shall have a claim on or any right to any assets allocated or
belonging to any other Series)).
NO PREEMPTIVE RIGHTS
SECTION 6. Shareholders shall have no preemptive or other right to
subscribe to any additional Shares or other securities issued by the Trust or
the Trustees.
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((STATUS OF SHARES AND)) LIMITATION OF PERSONAL LIABILITY
SECTION 7. ((Shares shall be deemed to be personal property giving
only the rights provided in this instrument. Every shareholder by virtue of
having become a shareholder shall be held to have expressly assented and agreed
to be bound by the terms hereof. No Shareholder of the Trust and of each Series
shall be personally liable for the debts, liabilities, obligations, and expenses
incurred by, contracted for, or otherwise existing with respect to, the Trust or
by or on behalf of any Series.)) The Trustees shall have no power to bind any
Shareholder personally or to call upon any Shareholder for the payment of any
sum of money or assessment whatsoever other than such as the Shareholder
may((,)) at any time((,)) personally agree to pay by way of subscription for any
Shares or otherwise. Every note, bond, contract((,)) or other undertaking issued
by or on behalf of the Trust or the Trustees relating to the Trust ((or to a
Series)) shall include a recitation limiting the obligation represented thereby
to the Trust ((or to one or more Series)) and its ((or their)) assets (but the
omission of such a recitation shall not operate to bind any Shareholder ((or
Trustee))).
ARTICLE IV
THE TRUSTEES
MANAGEMENT OF THE TRUST
SECTION 1. The business and affairs of the Trust shall be managed by
the Trustees, and they shall have all powers necessary and desirable to carry
out that responsibility.
[ELECTION:] INITIAL TRUSTEES; ((ELECTION))
SECTION 2. ((The initial Trustees shall be at least three individuals
who shall affix their signatures hereto)). On a date fixed by the Trustees, the
Shareholders shall elect not less than three Trustees. A Trustee shall not be
required to be a Shareholder of the Trust. [The initial Trustees shall be Arthur
S. Loring, Stephen P. Jonas and John H. Costello and such other individuals as
the Board of Trustees shall appoint pursuant to Section 4 of Article IV.]
TERM OF OFFICE OF TRUSTEE((S))
SECTION 3. The Trustees shall hold office during the lifetime of this
Trust, and until its termination as hereinafter provided; except (a) that any
Trustee may resign his trust by written instrument signed by him and delivered
to the other Trustees, which shall take effect upon such delivery or upon such
later date as is specified therein; (b) that any Trustee may be removed at any
time by written instrument, signed by at least two-thirds (((2/3))) of the
number of Trustees prior to such removal, specifying the date when such removal
shall become effective; (c) that any Trustee who requests in writing to be
retired or who has become incapacitated by illness or injury may be retired by
written instrument signed by a majority of the other Trustees, specifying the
date of his retirement; and (d) a Trustee may be removed at any [S]((s))pecial
[M]((m))eeting of the Trust by a vote of two-thirds (((2/3)))of the outstanding
Shares.
RESIGNATION AND APPOINTMENT OF TRUSTEES
SECTION 4. In case of the declination, death, resignation,
retirement, ((or)) removal [, incapacity, or inability] of any of the Trustees,
((or)) in case a vacancy shall, by reason of an increase in number ((of the
Trustees,)) or for any other reason, exist, the remaining Trustees shall fill
such vacancy by appointing such other person as they in their discretion shall
see fit consistent with the limitations under the 1940 Act. Such appointment
shall be evidenced by a written instrument signed by a majority of the Trustees
in office or by recording in the records of the Trust, whereupon the appointment
shall take effect. An appointment of a Trustee may be made by the Trustees then
in office in anticipation of a vacancy to occur by reason of retirement,
resignation((,)) or increase in number of Trustees effective at a later date,
provided that said appointment shall become effective only at or after the
effective date of said retirement, resignation((,)) or increase in number of
Trustees. As soon as any Trustee so appointed shall have accepted this
[t]((T))rust, the [t]((T))rust estate shall vest in the new Trustee or Trustees,
together with the continuing Trustees, without any further act or conveyance,
and he shall be deemed a Trustee hereunder. The ((foregoing)) power of
appointment is subject to the provisions of SECTION 16(a) of the 1940 Act((, as
modified by or interpreted by any applicable order or orders of the Commission
or any rules or regulations adopted or interpretative releases of the
Commission.))
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TEMPORARY ABSENCE OF TRUSTEE[S]
SECTION 5. Any Trustee may, by power of attorney, delegate his power
for a period not exceeding six (((6))) months at any one time to any other
Trustee or Trustees, provided that in no case shall less than two Trustees
personally exercise the other powers hereunder except as herein otherwise
expressly provided.
NUMBER OF TRUSTEES
SECTION 6. The number of Trustees, not less than three (3) nor more
than twelve (12), serving hereunder at any time shall be determined by the
Trustees themselves.
Whenever a vacancy in the Board of Trustees shall occur, until such
vacancy is filled, or while any Trustee is [absent from the Commonwealth of
Massachusetts or, if not a domiciliary of Massachusetts, is absent from his
state of domicile, or] is physically or mentally incapacitated by reason of
disease or otherwise, the other Trustees shall have all the powers hereunder and
the certificate of the other Trustees of such vacancy [, absence] or incapacity
[,] shall be conclusive [, provided, however, that no vacancy shall remain
unfilled for a period longer than six calendar months].
EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE
SECTION 7. The death, declination, resignation, retirement, removal,
incapacity, or inability of the Trustees, or any one of them, shall not operate
to annul the Trust or to revoke any existing agency created pursuant to the
terms of this Declaration of Trust.
OWNERSHIP OF ASSETS OF THE TRUST
SECTION 8. The assets of the Trust shall be held separate and apart
from any assets now or hereafter held in any capacity other than as Trustee
hereunder by the Trustees or any successor Trustees. All of the assets of the
Trust shall at all times be considered as vested in the Trustees. No Shareholder
shall be deemed to have a severable ownership in any individual asset of the
Trust or any right of partition or possession thereof, but each Shareholder
shall have a proportionate undivided beneficial interest in the Trust ((or
Series)).
ARTICLE V
POWERS OF THE TRUSTEES
POWERS
SECTION 1. The Trustees((,)) in all instances((,)) shall act as
principals [,] and are and shall be free from the control of the Shareholders.
The Trustees shall have full power and authority to do any and all acts and to
make and execute any and all contracts and instruments that they may consider
necessary or appropriate in connection with the management of the Trust.
((Except as otherwise provided herein or in the 1940 Act,)) [T]((t))he Trustees
shall not in any way be bound or limited by present or future laws or customs in
regard to trust investments, but shall have full authority and power to make any
and all investments [which] ((that)) they, in their [uncontrolled] discretion,
shall deem proper to accomplish the purpose of this Trust. Subject to any
applicable limitation in this Declaration of Trust or the Bylaws of the Trust,
((if any,)) the Trustees shall have power and authority:
(a) To invest and reinvest cash and other property, and to hold cash
or other property uninvested [,] without((,)) in any event((,)) being bound or
limited by any present or future law or custom in regard to investments by
Trustees, and to sell, exchange, lend, pledge, mortgage, hypothecate, write
options on((,)) and lease any or all of the assets of the Trust.
(b) To adopt Bylaws not inconsistent with this Declaration of Trust
providing for the conduct of the business of the Trust and to amend and repeal
them to the extent that they do not reserve that right to the Shareholders.
(c) To elect and remove such officers and appoint and terminate such
agents as they consider appropriate.
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(d) To employ [a] ((one or more banks, trust companies, companies
that are members of)) [bank] ((a national securities exchange, or other entities
permitted under the 1940 Act, as modified by or interpreted by any applicable
order)) or [trust company] ((orders of the Commission or any rules or
regulations adopted or interpretative releases of the Commission thereunder)),
as custodian((s)) of any assets of the Trust subject to any conditions set forth
in this Declaration of Trust or in the Bylaws, if any.
(e) To retain a transfer agent and Shareholder servicing agent, or
both.
(f) To provide for the distribution of interests of the Trust either
through a [p]((P))rincipal [u]((U))nderwriter in the manner hereinafter provided
for or by the Trust itself, or both.
(g) To set record dates in the manner hereinafter provided for.
(h) To delegate such authority as they consider desirable to any
officers of the Trust and to any [agent, custodian] ((investment adviser,
manager, custodian, underwriter,)) or [underwriter] ((other agent or independent
contractor.))
(i) To sell or exchange any or all of the assets of the Trust,
subject to the provisions of Article XII, Section 4 [(b)] hereof.
(j) To vote or give assent [,] or exercise any rights of ownership
[,] with respect to stock or other securities or property; and to execute and
deliver powers of attorney to such person or persons as the Trustees shall deem
proper, granting to such person or persons such power and discretion with
relation to securities or property as the Trustees shall deem proper.
(k) To exercise powers and rights of subscription or otherwise which
in any manner arise out of ownership of securities.
(l) To hold any security or property in a form not indicating any
trust, whether in bearer, unregistered, or other negotiable form; or either in
its own name or in the name of a custodian or a nominee or nominees [subject to
either case to proper safeguards according to the usual practice of
Massachusetts trust companies or investment companies.]
(m) To establish separate and distinct Series with separately defined
investment objectives and policies and distinct investment purposes in
accordance with the provisions of Article III ((and to establish Classes of such
Series having relative rights, powers, and duties as the Trustees may provide
consistent with applicable laws.))
(n) To allocate assets, liabilities((,)) and expenses of the Trust to
a particular Series ((or Class, as appropriate,)) or to apportion the same
between or among two or more Series ((or Classes, as appropriate,)) provided
that any liabilities or expenses incurred by a particular Series ((or Class))
shall be payable solely out of the assets belonging to that Series as provided
for in Article III.
(o) To consent to or participate in any plan for the reorganization,
consolidation((,)) or merger of any corporation or concern, any security of
which is held in the Trust; to consent to any contract, lease, mortgage,
purchase, or sale of property by such corporation or concern, and to pay calls
or subscriptions with respect to any security held in the Trust.
(p) To compromise, arbitrate, or otherwise adjust claims in favor of
or against the Trust or any matter in controversy((,)) including, but not
limited to, claims for taxes.
(q) To make distributions of income and of capital gains to
Shareholders in the manner hereinafter provided for.
(r) To borrow money, and to pledge, mortgage((,)) or hypothecate the
assets of the Trust, subject to ((the)) applicable requirements of the 1940 Act.
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(s) To establish, from time to time, a minimum total investment for
Shareholders[,] and to require the redemption of the Shares of any Shareholders
whose investment is less than such minimum upon giving notice to such
Shareholder.
(t) ((To operate as and carry on the business of an investment
company and to exercise all the powers necessary and appropriate to the conduct
of such operations.))
(((u) To interpret the investment policies, practices or limitations
of any Series.))
(((v) To issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of, and otherwise deal in Shares and, subject to
the provisions set forth in Article III and Article X, to apply to any such
repurchase, redemption, retirement, cancellation or acquisition of Shares any
funds or property of the Trust, or the particular Series of the Trust, with
respect to which such Shares are issued.))
[t](((w))) Notwithstanding any other provision hereof, to invest all
of the assets of any [s]((S))eries in [a single] ((one or more)) open-end
investment [company] ((companies,)) including investment by means of transfer of
such assets in exchange for an interest or interests in such investment company
((or companies or by any other method approved by the Trustees)).
(((x) In general to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary, suitable
or proper for the accomplishment of any purpose or the attainment of any object
or the furtherance of any power hereinbefore set forth, either alone or in
association with others, and to do every other act or thing incidental or
appurtenant to or growing out of or connected with the aforesaid business or
purposes, objects or powers.))
((The foregoing clauses shall be construed both as objects and
powers, and the foregoing enumeration of specific powers shall not be held to
limit or restrict in any manner the general powers of the Trustees. Any action
by one or more of the Trustees in their capacity as such hereunder shall be
deemed an action on behalf of the Trust or the applicable Series and not an
action in an individual capacity.))
((The Trustees shall not be limited to investing in obligations
maturing before the possible termination of the Trust or any Series or Class
thereof.))
No one dealing with the Trustees shall be under any obligation to
make any inquiry concerning the authority of the Trustees, or to see to the
application of any payments made or property transferred to the Trustees or upon
their order.
TRUSTEES AND OFFICERS AS SHAREHOLDERS
SECTION 2. Any Trustee, officer or other agent of the Trust may
acquire, own and dispose of Shares to the same extent as if he were not a
Trustee, officer or agent; and the Trustees may issue and sell or cause to be
issued and sold Shares to and buy such Shares from any such person of any firm
or company in which he is interested, subject only to the general limitations
herein contained as to the sale and purchase of such Shares; and all subject to
any restrictions which may be contained in the Bylaws((, if any)).
ACTION BY THE TRUSTEES
SECTION 3((. Except as otherwise provided herein or in the 1940
Act,)) [T]((t))he Trustees shall act by majority vote at a meeting duly called
or by unanimous written consent without a meeting or by telephone consent
provided a quorum of Trustees participate in any such telephonic meeting, unless
the 1940 Act requires that a particular action be taken only at a meeting [of]
((at which)) the Trustees ((are present in person)). At any meeting of the
Trustees, a majority of the Trustees shall constitute a quorum. Meetings of the
Trustees may be called orally or in writing by the Chairman of the Trustees or
by any two other Trustees. Notice of the time, date((,)) and place of all
meetings of the Trustees shall be given by the party calling the meeting to each
Trustee by telephone [or]((telefax,)) telegram, or ((other electro-mechanical
means)) sent to his home or business address at least twenty-four (24) hours in
advance of the meeting or by written notice mailed to his home or business
address at least seventy-two (72) hours in advance of the meeting. Notice need
not be given to any Trustee who attends the meeting without objecting to the
lack of notice or who executes a written waiver of notice with respect to the
meeting. Subject to the requirements of the 1940 Act, the Trustees by majority
vote may delegate to any one of their number their authority to approve
particular matters or take particular actions on behalf of the Trust. ((Written
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consents or waivers of Trustees may be executed in one or more counterparts.
Execution of a written consent or waiver and delivery thereof to the Trust may
be accomplished by telefax or other electro-mechanical means.))
CHAIRMAN OF THE TRUSTEES
SECTION 4. The Trustees may appoint one of their number to be
Chairman of the Board of Trustees. The Chairman shall preside at all meetings of
the Trustees, shall be responsible for the execution of policies established by
the Trustees and the administration of the Trust, and may be the chief
executive, financial and accounting officer of the Trust.
ARTICLE VI
EXPENSES OF THE TRUST
TRUSTEE REIMBURSEMENT
SECTION 1. Subject to the provisions of Article III, Section 5, the
Trustees shall be reimbursed from the Trust estate or the assets belonging to
the appropriate Series for their expenses and disbursements, including, without
limitation, fees and expenses of Trustees who are not Interested Persons of the
Trust[,]((;)) interest expense, taxes, fees and commissions of every
kind[,]((;)) expenses of pricing Trust portfolio securities[,]((;)) expenses of
issue, repurchase and redemption of shares including expenses attributable to a
program of periodic repurchases or redemptions, expenses of registering and
qualifying the Trust and its Shares under Federal and state laws and
regulations[,]((;)) charges of custodians, transfer agents, and
registrars[,]((;)) expenses of preparing and setting up in type
[P]((p))rospectuses and [S]((s))tatements of [A]((a))dditional
[I]((i))nformation[,]((;)) expenses of printing and distributing prospectuses
sent to existing Shareholders[,]((;)) auditing and legal expenses[,]((;))
reports to Shareholders[,]((;)) expenses of meetings of Shareholders and proxy
solicitations therefore[e,]((;)) insurance expense[,]((;)) association
membership dues((;)) and for such non-recurring items as may arise, including
litigation to which the Trust is a party[,]((;)) and for all losses and
liabilities by them incurred in administering the Trust, and for the payment of
such expenses, disbursements, losses((,)) and liabilities the Trustees shall
have a lien on the assets belonging to the appropriate Series prior to any
rights or interests of the Shareholders thereto. This SECTION shall not preclude
the Trust from directly paying any of the aforementioned fees and expenses.
ARTICLE VII
INVESTMENT ADVISER, PRINCIPAL[,] UNDERWRITER, AND TRANSFER AGENT
INVESTMENT ADVISER
SECTION 1. Subject to [a Majority Shareholder Vote] ((applicable
requirements of the 1940 Act, as modified by or interpreted by any applicable
order of the Commission or any rules or regulations adopted or interpretative
releases of the Commission thereunder,)) the Trustees may, in their discretion
and from time to time, enter into an investment advisory or management
contract(s) with respect to the Trust or any Series thereof whereby the other
party(ies) to such contract(s) shall undertake to furnish the Trustees such
management, investment advisory, statistical, and research facilities and
services and such other facilities and services, if any, and all upon such terms
and conditions, as the Trustees may, in their discretion, determine.
Notwithstanding any provisions of this Declaration of Trust, the Trustees may
authorize the investment adviser(s) (subject to such general or specific
instructions as the Trustees may from time to time adopt) to effect purchases,
sales or exchanges of portfolio securities and other investment instruments of
the Trust on behalf of the Trustees or may authorize any officer, agent, or
Trustee to effect such purchases, sales, or exchanges pursuant to
recommendations of the investment adviser (and all without further action by the
Trustees). Any such purchases, sales, and exchanges shall be deemed to have been
authorized by all of the Trustees.
The Trustees may, subject to applicable requirements of the 1940 Act,
((as modified by or interpreted by any applicable order or orders of the
Commission or any rules or regulations adopted or interpretative releases of the
Commission thereunder,)) including those relating to Shareholder approval,
authorize the investment adviser to employ one or more sub-advisers from time to
time to perform such of the acts and services of the investment adviser, and
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upon such terms and conditions, as may be agreed upon between the investment
adviser and sub-adviser.
PRINCIPAL UNDERWRITER
SECTION 2. The Trustees may in their discretion from time to time
enter into [(a)] ((an exclusive or non-exclusive)) contract(s) ((on behalf of
the Trust or any Series or Class thereof)) providing for the sale of the Shares,
whereby the Trust may either agree to sell the Shares to the other party to the
contract or appoint such other party its sales agent for such Shares. In either
case, the contract shall be on such terms and conditions as may be prescribed in
the Bylaws, if any, and such further terms and conditions as the Trustees
may((,)) in their discretion((,)) determine not inconsistent with the provisions
of this Article VII[,] or of the Bylaws, if any[; and such]. ((Such)) contract
may also provide for the repurchase or sale of Shares by such other party as
principal or as agent of the Trust.
TRANSFER AGENT
SECTION 3. The Trustees may((,)) in their discretion and from time to
time((,)) enter into [a] ((one or more)) transfer agency and Shareholder service
contract((s)) whereby the other party shall undertake to furnish the Trustees
with transfer agency and Shareholder services. [The] ((Such)) contract((s))
shall be on such terms and conditions as the Trustees may((,)) in their
discretion((,)) determine not inconsistent with the provisions of this
Declaration of Trust or of the Bylaws, if any. Such services may be provided by
one or more entities.
PARTIES TO CONTRACT
SECTION 4. Any contract of the character described in SECTIONs 1, 2
and 3 of this Article VII or in Article IX hereof may be entered into with any
corporation, firm, partnership, trust or association, although one or more of
the Trustees or officers of the Trust may be an officer, director, trustee,
shareholder, or member of such other party to the contract, and no such contract
shall be invalidated or rendered voidable by reason of the existence of any
relationship, nor shall any person holding such relationship be liable merely by
reason of such relationship for any loss or expense to the Trust under or by
reason of said contract or accountable for any profit realized directly or
indirectly therefrom, provided that the contract when entered into was
reasonable and fair and not inconsistent with the provisions of this Article VII
or the Bylaws, if any. The same person (including a firm, corporation,
partnership, trust, or association) may be the other party to contracts entered
into pursuant to Sections 1, 2 and 3 above or Article IX, and any individual may
be financially interested or otherwise affiliated with persons who are parties
to any or all of the contracts mentioned in this Section 4.
PROVISIONS AND AMENDMENTS
SECTION 5. Any contract entered into pursuant to Sections 1 and 2 of
this Article VII shall be consistent with and subject to the requirements of
Section 15 of the 1940 Act((,)) [(including)] ((as modified by or interpreted by
any applicable order or orders of the Commission or)) any [amendments thereof]
((rules or regulations adopted or interpretative releases of the Commission
(or))) other applicable Act of Congress hereafter enacted)((,)) with respect to
its continuance in effect, ((its amendment)), its termination, and the method of
authorization and approval of such contract or renewal thereof [, and no
amendment to any contract, entered into pursuant to SECTION 1 hereof shall be
effective unless assented to by a Majority Shareholder Vote].
ARTICLE VIII
SHAREHOLDERS' VOTING POWERS AND MEETINGS
VOTING POWERS
SECTION 1. The Shareholders shall have power to vote [(i)](((a))) for
the election of Trustees as provided in Article IV, Section
2[,]((;))[(ii)](((b))) for the removal of Trustees as provided in Article IV,
Section 3(d)[,]((;)) [(iii)](((c))) with respect to any investment advisory or
<PAGE>
management contract as provided in Article VII, Section((s)) 1 and 5[,]((;))
[(iv)](((d))) with respect to ((any termination, merger, consolidation,
reorganization, or sale of assets of the Trust or any of its Series or Classes
as provided in Article XII, Section 4; (e) with respect to)) the amendment of
this Declaration of Trust as provided in Article XII, Section 7[,]((;))
[(v)](((f))) to the same extent as the shareholders of a Massachusetts business
corporation, as to whether or not a court action, proceeding or claim should be
brought or maintained derivatively or as a class action on behalf of the Trust
or the Shareholders, provided, however, that a Shareholder of a particular
Series shall not be entitled to bring any derivative or class action on behalf
of any other Series of the Trust[,]((;)) and [(vi)](((g))) with respect to such
additional matters relating to the Trust as may be required or authorized by
law, by this Declaration of Trust, or the Bylaws of the Trust, if any, or any
registration of the Trust with the [Securities and Exchange] Commission [(the
"Commission")] or any [S]((s))tate, as the Trustees may consider desirable.
On any matter submitted to a vote of the Shareholders, all
[s]((S))hares shall be voted by individual Series, except ((as provided in the
following sentence and except (a))) [(i)] when required by the 1940 Act, Shares
shall be voted in the aggregate and not by individual Series; and [(ii)] (((b)))
when the Trustees have determined that the matter affects only the interests of
one or more Series, then only the Shareholders of such Series shall be entitled
to vote thereon. ((The Trustees may also determine that a matter affects only
the interests of one or more Classes of a Series, in which case, any such matter
shall be voted on by such Class or Classes.)) A Shareholder of each Series ((or
Class)) ((thereof)) shall be entitled to one vote for each dollar of net asset
value (number of [s]((S))hares owned times net asset value per share) of such
Series[,] ((or Class thereof)) on any matter on which such [s]((S))hareholder is
entitled to vote((,)) and each fractional dollar amount shall be entitled to
[vote] a proportionate fractional vote. There shall be no cumulative voting in
the election of Trustees. Shares may be voted in person or by proxy. Until
Shares are issued, the Trustees may exercise all rights of Shareholders and may
take any action required or permitted by law, this Declaration of Trust or any
Bylaws of the Trust((, if any,)) to be taken by Shareholders.
MEETINGS
SECTION 2. The first Shareholders' meeting shall be held as specified
in SECTION 2 of Article IV at the principal office of the Trust or such other
place as the Trustees may designate. Special meetings of the Shareholders of any
Series may be called by the Trustees and shall be called by the Trustees upon
the written request of Shareholders owning at least one-tenth (((1/10))) of the
outstanding Shares entitled to vote. Whenever ten or more Shareholders meeting
the qualifications set forth in Section 16(c) of the 1940 Act, as ((modified by
or interpreted by any applicable order or orders of the Commission or any rules
or regulations adopted or interpretative releases of)) the ((Commission, seek
the opportunity of furnishing materials to the other Shareholders)) with a view
to obtaining signatures on such a request for a meeting, the Trustees shall
comply with the provisions of said Section 16(c) with respect to providing such
Shareholders access to the list of the Shareholders of record of the Trust or
the mailing of such materials to such Shareholders of record. Shareholders shall
be entitled to at least fifteen (((15))) days' notice of any meeting.
QUORUM AND REQUIRED VOTE
SECTION 3. A majority of Shares entitled to vote in person or by
proxy shall be a quorum for the transaction of business at a Shareholders'
meeting, except that where any provision of law or of this Declaration of Trust
permits or requires that holders of any Series ((or Class)) shall vote as a
Series ((or Class)) then a majority of the aggregate number of Shares of that
Series ((or Class)) entitled to vote shall be necessary to constitute a quorum
for the transaction of business by that Series ((or Class)). Any lesser number
shall be sufficient for adjournments. Any adjourned session or sessions may be
held, within a reasonable time after the date set for the original meeting,
without the necessity of further notice. Except when a larger vote is required
by ((applicable law or)) by any provision of this Declaration of Trust or the
Bylaws, ((if any,)) a majority of the Shares voted in person or by proxy shall
decide any questions and a plurality shall elect a Trustee, provided that where
any provision of law or of this Declaration of Trust permits or requires that
the holders of any Series ((or Class)) shall vote as a Series ((or Class)), then
a majority of the Shares of that Series ((or Class)) voted on the matter shall
decide that matter insofar as that Series ((or Class)) is concerned.
((Shareholders may act by unanimous written consent. Actions taken by a Series
or Class may be consented to unanimously in writing by Shareholders of that
Series or Class.))
<PAGE>
((DERIVATIVE SUITS))
((SECTION 4. A Shareholder may bring derivative action on behalf of
the Trust only if the Shareholder or Shareholders first make a pre-suit demand
upon the Trustees to bring the subject action unless an effort to cause the
Trustees to bring such action is not likely to succeed. A demand on the Trustees
shall only be deemed not likely to succeed and therefore excused if a majority
of the Board of Trustees, or a majority of any committee established to consider
the merits of such action, has a personal financial interest in the action at
issue. A Trustee shall not be deemed to have a personal financial interest in an
action or otherwise be disqualified from ruling on the merits of a Shareholder
demand by virtue of the fact that such Trustee receives remuneration from his
service on the Board of Trustees of the Trust or on the boards of one or more
investment companies with the same or an affiliated investment advisor or
underwriter.))
ARTICLE IX
CUSTODIAN
APPOINTMENT AND DUTIES
SECTION 1. The Trustees shall at all times employ a bank [or trust
company] ((, a company that is a member of a national securities exchange, trust
company, or other entity permitted under the 1940 Act, as modified by or
interpreted by any applicable order or orders of the Commission or any rules or
regulations adopted or interpretative releases of the Commission thereunder,))
having capital, surplus, and undivided profits of at least two million dollars
($2,000,000), or such other amount [or such other entity] as shall be allowed by
the Commission or by the 1940 Act, as custodian with authority as its agent, but
subject to such restrictions, limitations and other requirements, if any, as may
be contained in the Bylaws of the Trust((, if any:))
(1) to hold the securities owned by the Trust and deliver the same
upon written order or ((oral order, if confirmed in writing, or by
such electro-mechanical or electronic devices as are agreed to by the
Trust and the custodian, if such procedures have been authorized in
writing by the Trust;))
(2) to receive and receipt for any moneys due to the Trust and
deposit the same in its own banking department or elsewhere as the
Trustees may direct; and
(3) to disburse such funds upon orders or vouchers;
and the Trust may also employ such custodian as its agent:
(1) to keep the books and accounts of the Trust and furnish clerical
and accounting services; and
(2) to compute, if authorized to do so((,)) [by] the [Trustees, the]
Net Asset Value of any Series ((or Class thereof)) in accordance with
the provisions hereof; all upon such basis of compensation as may be
agreed upon between the Trustees and the custodian [If so directed by
a Majority Shareholder Vote, the custodian shall deliver and pay over
all property of the Trust held by it as specified in such vote].
The Trustees may also authorize the custodian to employ one or more
sub-custodians from time to time to perform such of the acts and services of the
custodian, and upon such terms and conditions, as may be agreed upon between the
custodian and such sub-custodian and approved by the Trustees, provided that in
every case such sub-custodian shall be a bank [or trust company organized] ((, a
company that is a member of a national securities exchange, trust company, or
other entity permitted)) under the [laws] ((1940 Act, as modified by or
interpreted by any applicable order or orders)) of the [United States or one or
the states thereof and] ((Commission or any rules or regulations adopted or
interpretative releases of the Commission thereunder)), having capital,
surplus((,)) and undivided profits of at least two million dollars
($2,000,000)((,)) or such other [person] ((amount)) as [may] ((shall)) be
[permitted] ((allowed)) by the Commission[,] or [otherwise in accordance with]
((by)) the 1940 Act [as from time to time amended].
<PAGE>
CENTRAL [CERTIFICATE] ((DEPOSITORY)) SYSTEM
SECTION 2. Subject to such rules, regulations and orders as the
Commission may adopt, the Trustees may direct the custodian to deposit all or
any part of the securities owned by the Trust in a system for the central
handling of securities established by a national securities exchange or a
national securities association registered with the Commission under the
Securities Exchange Act of 1934[,] or such other person as may be permitted by
the Commission[,] or otherwise in accordance with the 1940 Act [as from time to
time amended], pursuant to which system all securities of any particular class
or [S]((s))eries of any issuer deposited within the system are treated as
fungible and may be transferred or pledged by bookkeeping entry without physical
delivery of such securities[,]((;)) provided that all such deposits shall be
subject to withdrawal only upon the order of the Trust ((or its custodian,
subcustodians, or other authorized agents.))
ARTICLE X
DISTRIBUTIONS((,)) AND REDEMPTIONS ((AND DETERMINATION OF NET ASSET VALUE))
DISTRIBUTIONS
SECTION 1.
(a) The Trustees may from time to time declare and pay
dividends. The amount of such dividends and the payment of them shall
be wholly in the discretion of the Trustees.
(b) The Trustees shall have the power, to the fullest
extent permitted by the laws of Massachusetts, at any time to declare
and cause to be paid dividends on Shares of a particular Series, from
the assets belonging to that Series, which dividends, at the election
of the Trustees, may be paid daily or otherwise pursuant to a
standing resolution or resolutions adopted only once or with such
frequency as the Trustees may determine, and may be payable in Shares
of that Series((, or Classes thereof,)) at the election of each
Shareholder of that Series.
((The Trustees may adopt and offer to Shareholders such
dividend reinvestment plans, cash dividend payout plans, or related
plans as the Trustees shall deem appropriate.))
(c) Anything in this instrument to the contrary
notwithstanding, the Trustees may at any time declare and distribute
((a dividend of stock or other property)) pro rata among the
Shareholders of a particular Series, ((or Class thereof,)) as of the
record date of that Series ((or Class)) fixed as provided in
((Article XII,)) Section 3[hereof a "stock dividend"].
REDEMPTIONS
SECTION 2. In case any holder of record of Shares of a particular
Series ((or Class of a)) Series desires to dispose of his Shares, he may deposit
at the office of the transfer agent or other authorized agent of that Series a
written request or such other form of request as the Trustees may((,)) from time
to time((,)) authorize, requesting that the Series purchase the Shares in
accordance with this SECTION 2; and the Shareholder so requesting shall be
entitled to require the Series to purchase, and the Series or the principal
underwriter of the Series shall purchase his said Shares, but only at the Net
Asset Value thereof (as described in SECTION 3 hereof). The Series shall make
payment for any such Shares to be redeemed, as aforesaid, in cash or property
from the assets of that Series((,)) and payment for such Shares ((less any
applicable deferred sales charges and/or fees)) shall be made by the Series or
the principal underwriter of the Series to the Shareholder of record within
seven (7) days after the date upon which the request is effective.
<PAGE>
DETERMINATION OF NET ASSET VALUE AND VALUATION OF PORTFOLIO ASSETS
SECTION 3. The term "Net Asset Value" of any Series ((or Class))
shall mean that amount by which the assets of that Series ((or Class)) exceed
its liabilities, all as determined by or under the direction of the Trustees.
Such value per Share shall be determined separately for each Series ((or Class))
of Shares and shall be determined on such days and at such times as the Trustees
may determine. Such determination shall be made with respect to securities for
which market quotations are readily available, at the market value of such
securities; and with respect to other securities and assets, at the fair value
as determined in good faith by the Trustees, provided, however, that the
Trustees, without Shareholder approval, may alter the method of appraising
portfolio securities insofar as permitted under the 1940 Act and the rules,
regulations((,)) and interpretations thereof promulgated or issued by the
Commission or insofar as permitted by any order of the Commission applicable to
the Series. The Trustees may delegate any of its powers and duties under this
Section 3 with respect to appraisal of assets and liabilities. At any time((,))
the Trustees may cause the value [par] ((per)) Share last determined to be
determined again in a similar manner and may fix the time when such redetermined
value shall become effective.
SUSPENSION OF THE RIGHT OF REDEMPTION
SECTION 4. The Trustees may declare a suspension of the right of
redemption or postpone the date of payment as permitted under the 1940 Act. Such
suspension shall take effect at such time as the Trustees shall specify((,)) but
not later than the close of business on the business day next following the
declaration of suspension, and thereafter there shall be no right of redemption
or payment until the Trustees shall declare the suspension at an end. In the
case of a suspension of the right of redemption, a Shareholder may either
withdraw his request for redemption or receive payment based on the Net Asset
Value per Share existing after the termination of the suspension. ((In the event
that any Series is divided into Classes, the provisions of this Section, to the
extent applicable as determined in the discretion of the Trustees and consistent
with applicable law, may be equally applied to each such Class.))
((REDEMPTION OF SHARES))
((SECTION 5. The Trustees may require Shareholders to redeem Shares for
any reason under terms set by the Trustees, including, but not limited to, (i)
the determination of the Trustees that direct or indirect ownership of Shares of
any Series has or may become concentrated in such Shareholder to an extent that
would disqualify any Series as a regulated investment company under the Internal
Revenue Code of 1986, as amended (or any successor statute thereto), (ii) the
failure of a Shareholder to supply a tax identification number if required to do
so, or (iii) the failure of a Shareholder to pay when due for the purchase of
Shares issued to him. The redemption shall be effected at the redemption price
and in the manner provided in this Article X.))
((The holders of Shares shall upon demand disclose to the Trustees in
writing such information with respect to direct and indirect ownership of Shares
as the Trustees deem necessary to comply with the provisions of the Internal
Revenue Code, or to comply with the requirements of any other taxing
authority.))
ARTICLE XI
LIMITATION OF LIABILITY AND INDEMNIFICATION
LIMITATION OF LIABILITY
SECTION 1. Provided they have exercised reasonable care and have
acted under the reasonable belief that their actions are in the best interest of
the Trust, the Trustees shall not be responsible for or liable in any event for
neglect or wrongdoing of them or any officer, agent, employee((,)) or investment
adviser of the Trust, but nothing contained herein shall protect any Trustee
against any liability to which he would otherwise be subject by reason of
willful misfeasance, bad faith, gross negligence((,)) or reckless disregard of
the duties involved in the conduct of his office.
<PAGE>
INDEMNIFICATION OF ((COVERED PERSONS))
SECTION 2.
(a) Subject to the exceptions and limitations contained in
Section (b) below:
(i) every person who is, or has been, a Trustee
or officer of the Trust (hereinafter referred to as
"Covered Person") shall be indemnified by the appropriate
Series to the fullest extent permitted by law against
liability and against all expenses reasonably incurred or
paid by him in connection with any claim, action, suit((,))
or proceeding in which he becomes involved as a party or
otherwise by virtue of his being or having been a Trustee
or officer and against amounts paid or incurred by him in
the settlement thereof;
(ii) the words "claim," "action," "suit," or
"proceeding" shall apply to all claims, actions, suits or
proceedings (civil, criminal or other, including appeals),
actual or threatened while in office or thereafter, and the
words "liability" and "expenses" shall include, without
limitation, attorneys' fees, costs, judgments, amounts paid
in settlement, fines, penalties and other liabilities.
(b) No indemnification shall be provided hereunder to a
Covered Person:
(i) who shall have been adjudicated by a court or
body before which the proceeding was brought (A) to be
liable to the Trust or its Shareholders by reason of
willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of
his office((;)) or (B) not to have acted in good faith in
the reasonable belief that his action was in the best
interest of the Trust; or
(ii) in the event of a settlement, unless there
has been a determination that such Trustee or officer did
not engage in willful misfeasance, bad faith, gross
negligence((,)) or reckless disregard of the duties
involved in the conduct of his office,
(A) by the court or other body approving the
settlement;
(B) by at least a majority of those Trustees who
are neither [i]((I))nterested [p]((P))ersons of the Trust
nor are parties to the matter based upon a review of
readily available facts (as opposed to a full trial-type
inquiry); or
(C) by written opinion of independent legal
counsel based upon a review of readily available facts (as
opposed to a full trial-type inquiry);
provided, however, that any Shareholder may, by appropriate legal
proceedings, challenge any such determination by the Trustees, or by
independent counsel.
(c) The rights of indemnification herein provided may be
insured against by policies maintained by the Trust, shall be
severable, shall not be exclusive of or affect any other rights to
which any Covered Person may now or hereafter be entitled, shall
continue as to a person who has ceased to be such Trustee or
officer((,)) and shall inure to the benefit of the heirs,
executors((,)) and administrators of such a person. Nothing contained
herein shall affect any rights to indemnification to which Trust
personnel, other than Trustees and officers, and other persons may be
entitled by contract or otherwise under law.
(d) Expenses in connection with the preparation and
presentation of a defense to any claim, action, suit((,)) or
proceeding of the character described in [p]((P))aragraph (a) of this
SECTION 2 may be paid by the applicable Series from time to time
prior to final disposition thereof upon receipt of an undertaking by
or on behalf of such Covered Person that such amount will be paid
over by him to the applicable Series if it is ultimately determined
that he is not entitled to indemnification under this Section 2;
provided, however, that either [(a)](((i))) such Covered Person shall
have provided appropriate security for such undertaking((;))
[(b)](((ii))) the Trust is insured against losses arising out of any
such advance payments((;)) or [(c)](((iii))) either a majority of the
Trustees who are neither interested persons of the Trust nor parties
to the matter, or independent legal counsel in a written opinion,
shall have determined, based upon a review of readily available facts
(as opposed to a trial-type inquiry or full investigation), that
<PAGE>
there is reason to believe that such Covered Person will be found
entitled to indemnification under this Section 2.
INDEMNIFICATION OF SHAREHOLDERS
SECTION 3. In case any Shareholder or former Shareholder of any
Series of the Trust shall be held to be personally liable solely by reason of
his being or having been a Shareholder and not because of his acts or omissions
or for some other reason, the Shareholder or former Shareholder (or his heirs,
executors, administrators, or other legal representatives or((,)) in the case of
a corporation or other entity, its corporate or other general successor) shall
be entitled out of the assets belonging to the applicable Series to be held
harmless from and indemnified against all loss and expense arising from such
liability. The Series shall, upon request by the Shareholder, assume the defense
of any claim made against the Shareholder for any act or obligation of the
Series and satisfy any judgment thereon.
ARTICLE XII
MISCELLANEOUS
TRUST NOT A PARTNERSHIP, ((ETC.))
SECTION 1. It is hereby expressly declared that a trust ((is created
hereby)) and not ((a partnership)) [is created hereby]((, joint stock
association, corporation, bailment, or any form of a legal relationship other
than a trust)). No Trustee hereunder shall have any power to personally bind
either the Trust's officers or any Shareholder. All persons extending credit to,
contracting with((,)) or having any claim against the Trust or the Trustees
shall look only to the assets of the appropriate Series for payment under such
credit, contract, or claim; and neither the Shareholders nor the Trustees, nor
any of their agents, whether past, present, or future, shall be personally
liable therefor. Nothing in this Declaration of Trust shall protect a Trustee
against any liability to which the Trustee would otherwise be subject by reason
of willful misfeasance, bad faith, gross negligence((,)) or reckless disregard
of the duties involved in the conduct of the office of Trustee hereunder.
TRUSTEES' GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY
SECTION 2. The exercise by the Trustees of their powers and
discretions hereunder in good faith and with reasonable care under the
circumstances then prevailing, shall be binding upon everyone interested.
Subject to the provisions of Section 1 of this Article XII and to Article XI,
the Trustees shall not be liable for errors of judgment or mistakes of fact or
law. The Trustees may take advice of counsel or other experts with respect to
the meaning and operation of this Declaration of Trust, and subject to the
provisions of Section 1 of this Article XII and to Article XI, shall be under no
liability for any act or omission in accordance with such advice or for failing
to follow such advice. The Trustees shall not be required to give any bond as
such, nor any surety if a bond is obtained.
ESTABLISHMENT OF RECORD DATES
SECTION 3. The Trustees may close the stock transfer books of the
Trust for a period not exceeding sixty (60) days preceding the date of any
meeting of Shareholders, or the date for the payment of any dividends, or the
date for the allotment of rights, or the date when any change or conversion or
exchange of Shares shall go into effect; or in lieu of closing the stock
transfer books as aforesaid, the Trustees may fix in advance a date not
exceeding sixty (60) days preceding the date of any meeting of Shareholders, or
the date for payment of any dividends, or the date for the allotment of rights,
or the date when any change or conversion or exchange of Shares shall go into
effect, as a record date for the determination of the Shareholders entitled to
notice of, and to vote at, any such meeting, or entitled to receive payment of
any such dividend, or to any such allotment of rights, or to exercise the rights
in respect of any such change, conversion or exchange of Shares, and in such
case such Shareholders and only such Shareholders as shall be Shareholders of
record on the date so fixed shall be entitled to such notice of, and to vote at,
such meeting, or to receive payment of such dividend, or to receive such
allotment or rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any Shares on the books of the Trust after any
such record date fixed or aforesaid.
<PAGE>
((DURATION;)) TERMINATION OF TRUST, ((A SERIES OR A CLASS; MERGERS, ETC.))
[Section 4.]
[(a) This] ((SECTION 4.1. Duration. The)) Trust shall continue
without limitation of time((,)) but subject to the provisions of [sub-section
(b)] this [Section 4] ((Article XII.))
[(b) Subject to a Majority Shareholder Vote of each Series affected
by the matter or, if applicable, to a Majority Shareholder Vote of the Trust,
the Trustees may:]
((SECTION 4.2. TERMINATION OF THE TRUST, A SERIES OR A CLASs.))
(((a) Subject to applicable Federal and state law, the Trust or any
Series or Class thereof may be terminated.))
(((i) by Majority Shareholder Vote of the Trust, each
Series affected, or each Class affected, as the case may be; or))
(((ii) without the vote or consent of Shareholders by a
majority of the Trustees either at a meeting or by written consent.))
((The Trustees shall provide written notice to the affected
Shareholders of a termination effected under clause (ii) above. Upon the
termination of the Trust or the Series or Class,))
[(i) sell and convey the assets of the Trust or any
affected Series to another trust, partnership, association or corporation
organized under the laws of any state which is a diversified open-end management
investment company as defined in the 1940 Act, for adequate consideration which
may include the assumption of all outstanding obligations, taxes and other
liabilities, accrued or contingent, of the Trust or any affected Series, and
which may include shares of beneficial interest or stock of such trust,
partnership, association or corporation; or]
(((i) the Trust or the Series or Class shall carry on no
business except for the purpose of winding up its affairs;))
[(ii) at any time sell and convert into money all of the
assets of the Trust or any affected Series.]
(((ii) the Trustees shall proceed to wind up the affairs of
the Trust or the Series or Class, and all of the powers of the
Trustees under this Declaration of Trust shall continue until the
affairs of the Trust shall have been wound up, including the power to
fulfill or discharge the contracts of the Trust or the Series or
Class thereof; collect its assets; sell, convey, assign, exchange,
transfer, or otherwise dispose of all or any part of the remaining
Trust property or Trust property allocated or belonging to such
Series or Class to one or more persons at public or private sale for
consideration that may consist in whole or in part of cash,
securities, or other property of any kind; discharge or pay its
liabilities; and do all other acts appropriate to liquidate its
business; provided that any sale, conveyance, assignment, exchange,
transfer, or other disposition of all or substantially all the Trust
property or Trust property allocated or belonging to such Series or
Class (other than as provided in (iii) below) shall require
Shareholder approval in accordance with Section 4.3 below; and))
[Upon making provisions] (((iii) after paying or adequately
providing)) for the payment of all ((liabilities, and upon receipt
of)) such [liabilities in either (i) or (ii), by such assumption or
otherwise,] ((releases, indemnities, and refunding agreements as they
deem necessary for their protection,)) the Trustees [shall] ((may))
distribute the remaining [proceeds] ((Trust property)) or [assets
(as] ((the remaining property of)) the [case may be) ratably]
((terminated Series or Class, in cash or in kind or partly each,))
among the [Shares] ((Shareholders)) of the Trust or ((the)) Series
[then outstanding] ((or Class according to their respective rights;
and))
[(c) Upon completion] (((b) after termination)) of the ((Trust or the
Series or Class and)) distribution ((to the Shareholders as herein provided, a
majority of the Trustees shall execute and lodge among the records)) of the
<PAGE>
[remaining proceeds or] ((Trust and file with)) the [remaining assets as
provided] ((Secretary of The Commonwealth of Massachusetts, if required, an
instrument)) in [sub-section (b),] ((writing setting forth)) the [Trust or any
affected Series shall terminate] ((fact of such termination,)) and the Trustees
shall ((thereupon)) be discharged [of any and] ((from)) all further liabilities
and duties [hereunder] ((with respect to the Trust or the terminated Series or
Class,)) and the [right, title] ((rights)) and interest((s)) of all [parties]
((Shareholders of the Trust or the terminated Series or Class)) shall [be
cancelled and discharged] ((thereupon cease.))
((SECTION 4.3. MERGER, CONSOLIDATION, AND SALE OF ASSETS. Subject to
applicable Federal and state law and except as otherwise provided in SECTION 4.4
below, the Trust or any Series or Class thereof may merge or consolidate with
any other corporation, association, trust, or other organization or may sell,
lease, or exchange all or a portion of the Trust property or Trust property
allocated or belonging to such Series or Class, including its good will, upon
such terms and conditions and for such consideration when and as authorized at
any meeting of Shareholders called for such purpose by a Majority Shareholder
Vote of the Trust or affected Series or Class, as the case may be. Such
transactions may be effected through share-for-share exchanges, transfers or
sale of assets, shareholder in-kind redemptions and purchases, exchange offers,
or any other method approved by the Trustees.))
((SECTION 4.4. INCORPORATION; REORGANIZATION. Subject to applicable
Federal and state law, the Trustees may without the vote or consent of
Shareholders cause to be organized or assist in organizing a corporation or
corporations under the laws of any jurisdiction or any other trust, partnership,
limited liability company, association, or other organization to take over all
or a portion of the Trust property or all a portion of the Trust property
allocated or belonging to such Series or Class 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 or Class to any such corporation, trust, limited
liability company, partnership, association, or organization in exchange for the
shares or securities thereof or otherwise, and to lend money to, subscribe for
the shares or securities of, and enter into any contracts with any such
corporation, trust, partnership, limited liability company, association, or
organization, or any corporation, partnership, limited liability company, trust,
association, or organization in which the Trust or such Series holds or is about
to acquire shares or any other interest. Subject to applicable Federal and state
law, the Trustees may also cause a merger or consolidation between the Trust or
any successor thereto or any Series or Class thereof and any such corporation,
trust, partnership, limited liability company, association, or other
organization. Nothing contained herein shall be construed as requiring approval
of Shareholders for the Trustees to organize or assist in organizing one or more
corporations, trusts, partnerships, limited liability companies, associations,
or other organizations and selling, conveying, or transferring the Trust
property or a portion of the Trust property to such organization or entities;
provided, however, that the Trustees shall provide written notice to the
affected Shareholders of any transaction whereby, pursuant to this SECTION 4.4,
the Trust or any Series or Class therof sells, conveys, or transfers all or a
portion of its assets to another entity or merges or consolidates with another
entity. Such transactions may be effected through share-for-share exchanges,
transfers or sale of assets, shareholder in-kind redemptions and purchases,
exchange offers, or any other method approved by the Trustees.))
FILING OF COPIES, REFERENCES, AND HEADINGS
SECTION 5. The original or a copy of this instrument and of each
[d]((D))eclaration of [t]((T))rust supplemental hereto shall be kept at the
office of the Trust where it may be inspected by any Shareholder. A copy of this
instrument and of each supplemental [d]((D))eclaration of [t]((T))rust shall be
filed by the Trustees with the Secretary of [t]((T))he Commonwealth of
Massachusetts and the Boston City Clerk, as well as any other governmental
office where such filing may from time to time be required. Anyone dealing with
the Trust may rely on a certificate by an officer or Trustee of the Trust as to
whether or not any such supplemental [d]((D))eclarations of [t]((T))rust ((have
been made and as to any matters in)) connection with the Trust hereunder, and
with the same effect as if it were the original, may rely on a copy certified
((by an officer or Trustee of the Trust)) to be a copy of this instrument or of
any such supplemental [d]((D))eclaration of [t]((T))rust. In this instrument or
in any such supplemental [d]((D))eclaration of [t]((T))rust, references to this
instrument and all expressions like "herein," "hereof" and "hereunder," shall be
deemed to refer to this instrument as amended or affected by any such
supplemental [d]((D))eclaration of [t]((T))rust. Headings are placed herein for
convenience of reference only and in case of any conflict, the text of this
instrument, rather than the headings, shall control. This instrument may be
executed in any number of counterparts each of which shall be deemed an
original.
<PAGE>
APPLICABLE LAW
SECTION 6. The [t]((T))rust set forth in this instrument is made in
[t]((T))he Commonwealth of Massachusetts, and it is created under and is to be
governed by and construed and administered according to the laws of said
Commonwealth. The Trust shall be of the type commonly called a Massachusetts
business trust, and without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a trust, ((and the
absence of a specific reference herein to any such power, privilege, or action
shall not imply that the Trust may not exercise such power or privilege or take
such actions.))
AMENDMENTS
SECTION 7. [If authorized by votes of] ((Except as specifically
provided herein,)) the Trustees [and] ((may, without shareholder vote, amend or
otherwise supplement this Declaration of Trust by making an amendment,)) a
[Majority Shareholder Vote] ((Declaration of Trust supplemental hereto)) or [by]
((an amended and restated Declaration of Trust. Shareholders shall have the
right to vote (a) on)) any [larger] ((amendment that would affect their right
to)) vote [which] ((granted in Section 1 of Article VIII; (b) on any amendment
that would alter the maximum number of Trustees permitted under Section 6 of
Article IV; (c) on any amendment to this Section 7; (d) on any amendment as))
may be required by [applicable] law or [this Declaration of Trust in] ((by the
Trust's registration statement filed with the Commission; and (e) on)) any
[particular case,] ((amendment submitted to them by the Trustees. Any amendment
required or permitted to be submitted to Shareholders that, as)) the Trustees
[shall amend or otherwise supplement this instrument, by making a declaration of
trust supplemental hereto, which thereafter] determine, shall [form a part
hereof, except that an amendment which shall] affect the Shareholders of one or
more Series [but not the Shareholders of all outstanding Series] ((or Classes))
shall be authorized by vote of the Shareholders [holding a majority of the
Shares entitled to vote] of each Series ((or Class)) affected and no vote of
[S]((s))hareholders of a Series ((or Class)) not affected shall be required.
[Amendments having the purpose of changing the name of the Trust or of supplying
] ((Notwithstanding anything else herein)), any [omission, curing any ambiguity
or curing, correcting or supplementing any defective or inconsistent provision
contained herein] ((amendment to Article XI)) shall not [require authorization
by Shareholder vote. Copies of] ((limit)) the [supplemental declaration]
((rights to indemnification or insurance provided therein with respect to action
or omission)) of [trust shall be filed as specified in Section 5 of this Article
XII] ((Covered Persons prior to such amendment)).
FISCAL YEAR
SECTION 8. The fiscal year of the Trust shall end on a specified date
as set forth in the Bylaws((, if any,)) provided, however, that the Trustees
may, without Shareholder approval, change the fiscal year of the Trust.
USE OF THE WORD "FIDELITY"
SECTION 9. Fidelity Management & Research Company ("FMR") has
consented to the use by any Series of the Trust of the identifying word
"Fidelity" in the name of any Series of the Trust at some future date. Such
consent is conditioned upon the employment of FMR ((or a subsidiary or affiliate
thereof)) as investment adviser of each Series of the Trust. As between the
Trust and itself, FMR controls the use of the name of the Trust insofar as such
name contains the identifying word "Fidelity." FMR may from time to time use the
identifying word "Fidelity" in other connections and for other purposes,
including, without limitation, in the names of other investment companies,
corporations((,)) or businesses that it may manage, advise, sponsor or own or in
which it may have a financial interest. FMR may require the Trust or any Series
thereof to cease using the identifying word "Fidelity" in the name of the Trust
or any Series thereof if the Trust or any Series thereof ceases to employ FMR or
a subsidiary or affiliate thereof as investment adviser.
<PAGE>
((Provisions in Conflict with Law or Regulations.))
((SECTION 10. (a) The provisions of this Declaration of Trust are
severable, and, if the Trustees shall determine, with the advice of counsel,
that any of such provisions is in conflict with the 1940 Act, the regulated
investment company provisions of the Internal Revenue Code or with other
applicable laws and regulations, the conflicting provision shall be deemed never
to have constituted a part of this Declaration of Trust; provided, however, that
such determination shall not affect any of the remaining provisions of this
Declaration of Trust or render invalid or improper any action taken or omitted
prior to such determination.))
(((b) If any provision of this Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provisions in any other jurisdiction or any
other provision of this Declaration of Trust in any jurisdiction.))
IN WITNESS WHEREOF, the undersigned, being all of the [initial]
Trustees of the Trust, have executed this instrument [this 10th day of May,
1995] ((as of the date set forth above.))
[SIGNATURE LINES OMITTED]
