BLACKROCK HIGH YIELD OPPORTUNITY TRUST
AGREEMENT AND DECLARATION OF TRUST
Dated as of December 27, 2002
TABLE OF CONTENTS
Page
ARTICLE I
The Trust
1.1 Name..................................................................1
1.2 Definitions...........................................................2
ARTICLE II
Trustees
2.1 Number and Qualification..............................................3
2.2 Term and Election.....................................................4
2.3 Resignation and Removal...............................................4
2.4 Vacancies.............................................................5
2.5 Meetings..............................................................5
2.6 Trustee Action by Written Consent.....................................6
2.7 Officers..............................................................6
ARTICLE III
Powers and Duties of Trustees
3.1 General...............................................................6
3.2 Investments...........................................................7
3.3 Legal Title...........................................................7
3.4 Issuance and Repurchase of Shares.....................................7
3.5 Borrow Money or Utilize Leverage......................................8
3.6 Delegation; Committees................................................8
3.7 Collection and Payment................................................8
3.8 Expenses..............................................................9
3.9 By-Laws...............................................................9
3.10 Miscellaneous Powers..................................................9
3.11 Further Powers.......................................................10
ARTICLE IV
Advisory, Management and Distribution Arrangements
4.1 Advisory and Management Arrangements.................................10
4.2 Distribution Arrangements............................................11
4.3 Parties to Contract..................................................11
ARTICLE V
Limitations of Liability
and Indemnification
5.1 No Personal Liability of Shareholders, Trustees, etc.................11
5.2 Mandatory Indemnification............................................12
5.3 No Bond Required of Trustees.........................................14
5.4 No Duty of Investigation; Notice in Trust Instruments, etc...........14
5.5 Reliance on Experts, etc.............................................15
ARTICLE VI
Shares of Beneficial Interest
6.1 Beneficial Interest..................................................15
6.2 Other Securities.....................................................15
6.3 Rights of Shareholders...............................................16
6.4 Trust Only...........................................................16
6.5 Issuance of Shares...................................................16
6.6 Register of Shares...................................................16
6.7 Transfer Agent and Registrar.........................................17
6.8 Transfer of Shares...................................................17
6.9 Notices..............................................................17
ARTICLE VII
Custodians
7.1 Appointment and Duties...............................................18
7.2 Central Certificate System...........................................19
ARTICLE VIII
Redemption
8.1 Redemptions..........................................................19
8.2 Disclosure of Holding................................................19
ARTICLE IX
Determination of Net Asset Value
Net Income and Distributions
9.1 Net Asset Value......................................................19
9.2 Distributions to Shareholders........................................20
9.3 Power to Modify Foregoing Procedures.................................20
ARTICLE X
Shareholders
10.1 Meetings of Shareholders.............................................21
10.2 Voting...............................................................21
10.3 Notice of Meeting and Record Date....................................21
10.4 Quorum and Required Vote.............................................22
10.5 Proxies, etc.........................................................22
10.6 Reports..............................................................23
10.7 Inspection of Records................................................23
10.8 Shareholder Action by Written Consent................................23
ARTICLE XI
Duration; Termination of Trust;
Amendment; Mergers, Etc.
11.1 Duration.............................................................24
11.2 Termination..........................................................24
11.3 Amendment Procedure..................................................25
11.4 Merger, Consolidation and Sale of Assets.............................26
11.5 Subsidiaries.........................................................26
11.6 Conversion...........................................................27
11.7 Certain Transactions.................................................27
ARTICLE XII
Miscellaneous
12.1 Filing...............................................................29
12.2 Resident Agent.......................................................30
12.3 Governing Law........................................................30
12.4 Counterparts.........................................................30
12.5 Reliance by Third Parties............................................30
12.6 Provisions in Conflict with Law or Regulation........................30
BLACKROCK HIGH YIELD OPPORTUNITY TRUST
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made as of the 27 day
of December, 2002, by the Trustees hereunder, and by the holders of shares
of beneficial interest issued hereunder as hereinafter provided.
WHEREAS, this Trust has been formed to carry on business
as set forth more particularly hereinafter;
WHEREAS, this Trust is authorized to issue an unlimited
number of its shares of beneficial interest all in accordance with the
provisions hereinafter set forth;
WHEREAS, the Trustees have agreed to manage all property
coming into their hands as Trustees of a Delaware statutory trust in
accordance with the provisions hereinafter set forth; and
WHEREAS, the parties hereto intend that the Trust created
by this Declaration and the Certificate of Trust filed with the Secretary
of State of the State of Delaware on December 27, 2002 shall constitute a
statutory trust under the Delaware Statutory Trust Act and that this
Declaration shall constitute the governing instrument of such statutory
trust.
NOW, THEREFORE, the Trustees hereby declare that they
will hold all cash, securities, and other assets which they may from time
to time acquire in any manner as Trustees hereunder IN TRUST to manage and
dispose of the same upon the following terms and conditions for the benefit
of the holders from time to time of shares of beneficial interest in this
Trust as hereinafter set forth.
ARTICLE I
The Trust
1.1 Name. This Trust shall be known as the "BlackRock
High Yield Opportunity Trust" and the Trustees shall conduct the business
of the Trust under that name or any other name or names as they may from
time to time determine.
1.2 Definitions. As used in this Declaration, the
following terms shall have the following meanings:
The "1940 Act" refers to the Investment Company Act of
1940 and the rules and regulations promulgated thereunder and exemptions
granted therefrom, as amended from time to time.
The terms "Affiliated Person", "Assignment",
"Commission", "Inter ested Person" and "Principal Underwriter" shall have
the meanings given them in the 1940 Act.
"By-Laws" shall mean the By-Laws of the Trust as amended
from time to time by the Trustees.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
"Commission" shall mean the Securities and Exchange
Commission.
"Declaration" shall mean this Agreement and Declaration
of Trust, as amended, supplemented or amended and restated from time to
time.
"Delaware Statutory Trust Statute" shall mean the
provisions of the Delaware Statutory Trust Act, 12 Del. C.ss.3801, et.
seq., as such Act may be amended from time to time.
"Delaware General Corporation Law" means the Delaware
General Corporation Law, 8 Del. C.ss.100, et. seq., as amended from time to
time.
"Fundamental Policies" shall mean the investment policies
and restrictions as set forth from time to time in any Prospectus or
contained in any current Registration Statement of the Trust filed with the
Commission or as other wise adopted by the Trustees and the Shareholders in
accordance with the require ments of the 1940 Act and designated as
fundamental policies therein as they may be amended from time to time in
accordance with the requirements of the 1940 Act.
"Majority Shareholder Vote" shall mean a vote of "a
majority of the outstanding voting securities" (as such term is defined in
the 0000 Xxx) of the Trust with each class and series of Shares voting
together as a single class, except to the extent otherwise required by the
1940 Act or this Declaration with respect to any one or more classes or
series of Shares, in which case the applicable proportion of such classes
or series of Shares voting as a separate class or series, as case may be,
also will be required.
"Person" shall mean and include individuals,
corporations, partner ships, trusts, limited liability companies,
associations, joint ventures and other entities, whether or not legal
entities, and governments and agencies and political subdivisions thereof.
"Prospectus" shall mean the Prospectus of the Trust, if
any, as in effect from time to time under the Securities Act of 1933, as
amended.
"Shareholders" shall mean as of any particular time the
holders of record of outstanding Shares of the Trust, at such time.
"Shares" shall mean the transferable units of beneficial
interest into which the beneficial interest in the Trust shall be divided
from time to time and includes fractions of Shares as well as whole Shares.
In addition, Shares also means any preferred shares or preferred units of
beneficial interest which may be issued from time to time, as described
herein. All references to Shares shall be deemed to be Shares of any or all
series or classes as the context may require.
"Trust" shall mean the trust established by this
Declaration, as amended from time to time, inclusive of each such
amendment.
"Trust Property" shall mean as of any particular time any
and all property, real or personal, tangible or intangible, which at such
time is owned or held by or for the account of the Trust or the Trustees in
such capacity.
"Trustees" shall mean the signatories to this
Declaration, so long as they shall continue in office in accordance with
the terms hereof, and all other persons who at the time in question have
been duly elected or appointed and have qualified as trustees in accordance
with the provisions hereof and are then in office.
ARTICLE II
Trustees
2.1 Number and Qualification. Prior to a public offering
of Shares there may be a sole Trustee. Thereafter, the number of Trustees
shall be determined by a written instrument signed by a majority of the
Trustees then in office, provided that the number of Trustees shall be no
less than two or more than nine. No reduc tion in the number of Trustees
shall have the effect of removing any Trustee from office prior to the
expiration of his term. An individual nominated as a Trustee shall be at
least 21 years of age and not older than 80 years of age at the time of
nomina tion and not under legal disability. Trustees need not own Shares
and may succeed themselves in office.
2.2 Term and Election. The Board of Trustees shall be
divided into three classes, designated Class I, Class II and Class III.
Each class shall consist, as nearly as may be possible, of one-third of the
total number of trustees constituting the entire Board of Trustees. Within
the limits above specified, the number of the Trustees in each class shall
be determined by resolution of the Board of Trustees. The term of office of
the first class shall expire on the date of the first annual meeting of
Shareholders or special meeting in lieu thereof following the effective
date of the Registration Statement relating to the Shares under the
Securities Act of 1933, as amended. The term of office of the second class
shall expire on the date of the second annual meeting of Shareholders or
special meeting in lieu thereof following the effective date of the
Registration Statement relating to the Shares under the Securities Act of
1933, as amended. The term of office of the third class shall expire on the
date of the third annual meeting of Shareholders or special meeting in lieu
thereof following the effective date of the Registration Statement relating
to the Shares under the Securities Act of 1933, as amended. Upon expiration
of the term of office of each class as set forth above, the number of
Trustees in such class, as determined by the Board of Trustees, shall be
elected for a term expiring on the date of the third annual meeting of
Shareholders or special meeting in lieu thereof following such expiration
to succeed the Trustees whose terms of office expire. The Trustees shall be
elected at an annual meeting of the Shareholders or special meeting in lieu
thereof called for that purpose, except as provided in Section 2.3 of this
Article and each Trustee elected shall hold office until his or her
successor shall have been elected and shall have qualified. The term of
office of a Trustee shall terminate and a vacancy shall occur in the event
of the death, resignation, removal, bankruptcy, adjudicated incompetence or
other incapacity to perform the duties of the office, or removal, of a
Trustee.
2.3 Resignation and Removal. Any of the Trustees may
resign their trust (without need for prior or subsequent accounting) by an
instrument in writing signed by such Trustee and delivered or mailed to the
Trustees or the Chairman, if any, the President or the Secretary 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 the minimum number required by Section 2.1 hereof) for
cause only, and not without cause, and only by action taken by a majority
of the remaining Trustees followed by the holders of at least seventy-five
percent (75%) of the Shares then entitled to vote in an election of such
Trustee. Upon the resignation or removal of a Trustee, each such resigning
or removed Trustee 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 such
resigning or removed Trustee. Upon the incapacity or death of any Trustee,
such Trustee's legal representative shall execute and deliver on such
Trustee's behalf such documents as the remaining Trustees shall require as
provided in the preceding sentence.
2.4 Vacancies. Whenever a vacancy in the Board of
Trustees shall occur, the remaining Trustees may fill such vacancy by
appointing an individual having the qualifications described in this
Article by a written instrument signed by a majority of the Trustees then
in office or may leave such vacancy unfilled or may reduce the number of
Trustees; provided the aggregate number of Trustees after such reduction
shall not be less than the minimum number required by Section 2.1 hereof;
provided, further, that if the Shareholders of any class or series of
Shares are entitled separately to elect one or more Trustees, a majority of
the remaining Trustees or the sole remaining Trustee elected by that class
or series may fill any vacancy among the number of Trustees elected by that
class or series. Any vacancy created by an increase in Trustees may be
filled by the appointment of an individual having the qualifications
described in this Article made by a written instrument signed by a majority
of the Trustees then in office. No vacancy shall operate to annul this
Declaration or to revoke any existing agency created pursuant to the terms
of this Declaration. Whenever a vacancy in the number of Trustees shall
occur, until such vacancy is filled as provided herein, 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 this Declaration.
2.5 Meetings. Meetings of the Trustees shall be held from
time to time upon the call of the Chairman, if any, or the President or any
two Trustees. Regular meetings of the Trustees may be held without call or
notice at a time and place fixed by the By-Laws or by resolution of the
Trustees. Notice of any other meeting shall be given by the Secretary and
shall be delivered to the Trustees orally not less than 24 hours, or in
writing not less than 72 hours, before the meeting, but may be waived in
writing by any Trustee either before or after such meeting. The attendance
of a Trustee at a meeting shall constitute a waiver of notice of such
meeting except where a Trustee attends a meeting for the express purpose of
object ing to the transaction of any business on the ground that the
meeting has not been properly called or convened. A quorum for all meetings
of the Trustees shall be one- third, but not less than two, of the
Trustees. Unless provided otherwise in this Declaration and except as
required under the 1940 Act, any action of the Trustees may be taken at a
meeting by vote of a majority of the Trustees present (a quorum being
present) or without a meeting by written consent of a majority of the
Trustees.
Any committee of the Trustees, including an executive
committee, if any, may act with or without a meeting. A quorum for all
meetings of any such committee shall be one-third, but not less than two,
of the members thereof. Unless provided otherwise in this Declaration, any
action of any such committee may be taken at a meeting by vote of a
majority of the members present (a quorum being present) or without a
meeting by written consent of all of the members.
With respect to actions of the Trustees and any committee
of the Trustees, Trustees who are Interested Persons in any action to be
taken may be counted for quorum purposes under this Section and shall be
entitled to vote to the extent not prohibited by the 1940 Act.
All or any one or more Trustees may participate in a
meeting of the Trustees or any committee thereof by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other; participation in a
meeting pursuant to any such commu nications system shall constitute
presence in person at such meeting.
2.6 Trustee Action by Written Consent. Any action which
may be taken by Trustees by vote may be taken without a meeting if that
number of the Trustees, or members of a committee, as the case may be,
required for approval of such action at a meeting of the Trustees or of
such committee consent to the action in writing and the written consents
are filed with the records of the meetings of Trust ees. Such consent shall
be treated for all purposes as a vote taken at a meeting of Trustees.
2.7 Officers. The Trustees shall elect a President, a
Secretary and a Treasurer and may elect a Chairman who shall serve at the
pleasure of the Trustees or until their successors are elected. The
Trustees may elect or appoint or may autho rize the Chairman, if any, or
President to appoint such other officers or agents with such powers as the
Trustees may deem to be advisable. A Chairman shall, and the President,
Secretary and Treasurer may, but need not, be a Trustee.
ARTICLE III
Powers and Duties of Trustees
3.1 General. The Trustees shall owe to the Trust and its
Shareholders the same fiduciary duties as owed by directors of corporations
to such corporations and their stockholders under the Delaware General
Corporation Law. 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 may perform such acts as in
their sole discretion are proper for conducting the business of the Trust.
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.
3.2 Investments. The Trustees shall have power, subject
to the Fundamental Policies in effect from time to time with respect to the
Trust to:
(a) manage, conduct, operate and carry on the
business of an investment company;
(b) subscribe for, invest in, reinvest in,
purchase or otherwise acquire, hold, pledge, sell, assign, transfer,
exchange, distribute or otherwise deal in or dispose of any and all sorts
of property, tangible or intangible, including but not limited to
securities of any type whatsoever, whether equity or non-equity, of any
issuer, evidences of indebtedness of any person and any other rights,
interests, instruments or property of any sort and to exercise any and all
rights, powers and privileges of ownership or interest in respect of any
and all such investments of every kind and description, including, without
limitation, the right to consent and otherwise act with respect thereto,
with power to designate one or more Persons to exercise any of said rights,
powers and privileges in respect of any of said investments. The Trustees
shall not be limited by any law limiting the investments which may be made
by fiduciaries.
3.3 Legal Title. Legal title to all the Trust Property
shall be vested in the Trustees as joint tenants except that the Trustees
shall have power to cause legal title to any Trust Property to be held by
or in the name of one or more of the Trust ees, or in the name of the
Trust, or in the name of any other Person as nominee, custodian or pledgee,
on such terms as the Trustees may determine, provided that the interest of
the Trust therein is appropriately protected.
The right, title and interest of the Trustees in the
Trust Property shall vest automatically in each person who may hereafter
become a Trustee upon his due election and qualification. Upon the ceasing
of any person to be a Trustee for any reason, such person 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.
3.4 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,
including Shares in fractional denominations, and, subject to the more
detailed provisions set forth in Articles VIII and IX, to apply to any such
repurchase, redemption, retirement, cancellation or acquisition of Shares
any funds or property whether capital or surplus or otherwise, to the full
extent now or hereafter permitted corporations formed under the Delaware
General Corporation Law.
3.5 Borrow Money or Utilize Leverage. Subject to the
Fundamental Policies in effect from time to time with respect to the Trust,
the Trustees shall have the power to borrow money or otherwise obtain
credit or utilize leverage to the maximum extent permitted by law or
regulation as such may be needed from time to time and to secure the same
by mortgaging, pledging or otherwise subjecting as security the assets of
the Trust, including the lending of portfolio securities, and to endorse,
guarantee, or undertake the performance of any obligation, contract or
engagement of any other person, firm, association or corporation.
3.6 Delegation; Committees. The Trustees shall have the
power, consistent with their continuing exclusive authority over the
management of the Trust and the Trust Property, to delegate from time to
time to such of their number or to officers, employees or agents of the
Trust the doing of such things and the execu tion of such instruments
either in the name of the Trust or the names of the Trustees or otherwise
as the Trustees may deem expedient, to at least the same extent as such
delegation is permitted to directors of corporations formed under the
Delaware General Corporation Law and is permitted by the 1940 Act, as well
as any further delegations the Trustees may determine to be desirable,
expedient or necessary in order to effect the purpose hereof. The Trustees
may designate an executive commit tee which shall have all authority of the
entire Board of Trustees except such com mittee cannot declare dividends
except to the extent specifically delegated by the Board of Trustees and
cannot authorize removal of a trustee or any merger, xxxxxxx dation or sale
of substantially all of the assets of the Trust.
3.7 Collection and Payment. The Trustees shall have power
to collect all property due to the Trust; to pay all claims, including
taxes, against the Trust Property or the Trust, the Trustees or any
officer, employee or agent of the Trust; to prosecute, defend, compromise
or abandon any claims relating to the Trust Property or the Trust, or the
Trustees or any officer, employee or agent of the Trust; 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. Except to the extent required for a corporation formed under
the Delaware General Corporation Law, the Shareholders shall have no power
to vote as to whether or not a court action, legal proceeding or claim
should or should not be brought or maintained derivatively or as a class
action on behalf of the Trust or the Shareholders.
3.8 Expenses. The Trustees shall have power to incur and
pay out of the assets or income of the Trust any expenses which in the
opinion of the Trustees are necessary or incidental to carry out any of the
purposes of this Declaration, and the business of the Trust, 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. The Trustees may pay themselves such compensa tion
for special services, including legal, underwriting, syndicating and
brokerage services, as they in good faith may deem reasonable and
reimbursement for expenses reasonably incurred by themselves on behalf of
the Trust. The Trustees shall have the power, as frequently as they may
determine, to cause each Shareholder to pay directly, in advance or
arrears, for charges of distribution, of the custodian or transfer,
Shareholder servicing or similar agent, a pro rata amount as defined from
time to time by the Trustees, by setting off such charges due from such
Shareholder from declared but unpaid dividends or distributions owed such
Shareholder and/or by reducing the number of shares in the account of such
Shareholder by that number of full and/or fractional Shares which
represents the outstanding amount of such charges due from such
Shareholder.
3.9 By-Laws. The Trustees shall have the exclusive
authority to adopt and from time to time amend or repeal By-Laws for the
conduct of the business of the Trust.
3.10 Miscellaneous Powers. The Trustees shall have the
power to: (a) employ or contract with such Persons as the Trustees may deem
desirable for the transaction of the business of the Trust; (b) enter into
joint ventures, partnerships and any other combinations or associations;
(c) purchase, and pay for out of Trust Property, insurance policies
insuring the Shareholders, Trustees, officers, employees, agents,
investment advisors, 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; (d) establish pension, profit-sharing, share purchase, and other
retirement, incentive and benefit plans for any Trustees, officers,
employees and agents of the Trust; (e) make donations, irrespective of
benefit to the Trust, for charitable, religious, educational, scientific,
civic or similar purposes; (f) to the extent permitted by law, indemnify
any Person with whom the Trust has dealings, including without limitation
any advisor, administrator, manager, transfer agent, custodian, distributor
or selected dealer, or any other person as the Trustees may see fit 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 and the method in which its accounts shall be kept; (i)
notwithstand ing the Fundamental Policies of the Trust, convert the Trust
to a master-feeder structure; provided, however, the Trust obtains the
approval of shareholders holding at least a majority of the Trust's Shares
present at a meeting of Shareholders at which a quorum is present and (j)
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.
3.11 Further Powers. 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 State
of Delaware, 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
Trustees will not be required to obtain any court order to deal with the
Trust Property.
ARTICLE IV
Advisory, Management and Distribution Arrangements
4.1 Advisory and Management Arrangements. Subject to the
requirements of applicable law as in effect from time to time, the Trustees
may in their discretion from time to time enter into advisory,
administration or management contracts (including, in each case, one or
more sub-advisory, sub-administration or sub-management contracts) whereby
the other party to any such contract shall undertake to furnish the
Trustees such advisory, administrative and management services, with
respect to the Trust as the Trustees shall from time to time consider
desirable and all upon such terms and conditions as the Trustees may in
their discretion determine. Notwithstanding any provisions of this
Declaration, the Trustees may authorize any advisor, administrator or
manager (subject to such general or specific instructions as the Trustees
may from time to time adopt) to effect investment transactions with respect
to the assets on behalf of the Trustees to the full extent of the power of
the Trustees to effect such transactions or may authorize any officer,
employee or Trustee to effect such transactions pursuant to recommendations
of any such advisor, administrator or manager (and all without further
action by the Trustees). Any such investment transaction shall be deemed to
have been authorized by all of the Trustees.
4.2 Distribution Arrangements. Subject to compliance with
the 1940 Act, the Trustees may retain underwriters and/or placement agents
to sell Trust Shares. The Trustees may in their discretion from time to
time enter into one or more contracts, providing for the sale of the Shares
of the Trust, whereby the Trust may either agree to sell such 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 the Trustees may in their discretion determine not
inconsistent with the provisions of this Article IV or the By-Laws; and
such contract may also provide for the repurchase or sale of Shares of the
Trust by such other party as principal or as agent of the Trust and may
provide that such other party may enter into selected dealer agreements
with registered securities dealers and brokers and servicing and similar
agreements with persons who are not registered securities dealers to
further the purposes of the distribution or repurchase of the Shares of the
Trust.
4.3 Parties to Contract. Any contract of the character
described in Sections 4.1 and 4.2 of this Article IV or in Article VII
hereof may be entered into with any Person, although one or more of the
Trustees, officers or employees of the Trust may be an officer, director,
trustee, shareholder, or member of such other party to the contract, and no
such contract shall be invalidated or rendered voidable by reason of the
existence of any such relationship, nor shall any Person holding such
relationship be liable merely by reason of such relationship for any loss
or expense to the Trust under or by reason of said contract or accountable
for any profit realized directly or indirectly therefrom, provided that the
contract when entered into was reasonable and fair and not inconsistent
with the provisions of this Article IV or the By-Laws. The same Person may
be the other party to contracts entered into pursuant to Sections 4.1 and
4.2 above or Article VII, 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 4.3.
ARTICLE V
Limitations of Liability
and Indemnification
5.1 No Personal Liability of Shareholders, Trustees, etc.
No Share holder of the Trust shall be subject in such capacity to any
personal liability whatso ever to any Person in connection with Trust
Property or the acts, obligations or affairs of the Trust. Shareholders
shall have the same limitation of personal liability as is extended to
stockholders of a private corporation for profit incorporated under the
Delaware General Corporation Law. No Trustee or officer of the Trust shall
be subject in such capacity to any personal liability whatsoever to any
Person, save only liability to the Trust or its Shareholders arising from
bad faith, willful misfeasance, gross negligence or reckless disregard for
his duty to such Person; and, subject to the foregoing exception, all such
Persons shall look solely to the Trust Property for satisfaction of claims
of any nature arising in connection with the affairs of the Trust. If any
Shareholder, Trustee or officer, as such, of the Trust, is made a party to
any suit or proceeding to enforce any such liability, subject to the
foregoing exception, he shall not, on account thereof, be held to any
personal liability. Any repeal or modifi cation of this Section 5.1 shall
not adversely affect any right or protection of a Trustee or officer of the
Trust existing at the time of such repeal or modification with respect to
acts or omissions occurring prior to such repeal or modification.
5.2 Mandatory Indemnification. (a) The Trust hereby
agrees to indemnify each person who at any time serves as a Trustee or
officer of the Trust (each such person being an "indemnitee") against any
liabilities and expenses, including amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and reasonable counsel
fees reasonably incurred by such indemnitee in connection with the defense
or disposition of any action, suit or other proceeding, whether civil or
criminal, before any court or administrative or investigative body in which
he may be or may have been involved as a party or otherwise or with which
he may be or may have been threatened, while acting in any capacity set
forth in this Article V by reason of his having acted in any such capacity,
except with respect to any matter as to which he shall not have acted in
good faith in the reasonable belief that his action was in the best
interest of the Trust or, in the case of any criminal proceeding, as to
which he shall have had reasonable cause to believe that the conduct was
unlawful, provided, however, that no indemnitee shall be indemnified
hereunder against any liability to any person or any expense of such
indemnitee arising by reason of (i) willful misfeasance, (ii) bad faith,
(iii) gross negligence, or (iv) reckless disregard of the duties involved
in the conduct of his position (the conduct referred to in such clauses (i)
through (iv) being sometimes referred to herein as "disabling conduct").
Notwithstanding the foregoing, with respect to any action, suit or other
proceeding voluntarily prosecuted by any indemnitee as plaintiff,
indemnification shall be mandatory only if the prosecution of such action,
suit or other proceeding by such indemnitee (1) was authorized by a
majority of the Trustees or (2) was instituted by the indemnitee to enforce
his or her rights to indemnification hereunder in a case in which the
indemnitee is found to be entitled to such indemnifi cation. The rights to
indemnification set forth in this Declaration shall continue as to a person
who has ceased to be a Trustee or officer of the Trust and shall inure to
the benefit of his or her heirs, executors and personal and legal
representatives. No amendment or restatement of this Declaration or repeal
of any of its provisions shall limit or eliminate any of the benefits
provided to any person who at any time is or was a Trustee or officer of
the Trust or otherwise entitled to indemnification hereun der in respect of
any act or omission that occurred prior to such amendment, restate ment or
repeal.
(b) Notwithstanding the foregoing, no
indemnification shall be made hereunder unless there has been a
determination (i) by a final decision on the merits by a court or other
body of competent jurisdiction before whom the issue of entitlement to
indemnification hereunder was brought that such indemnitee is entitled to
indemnification hereunder or, (ii) in the absence of such a decision, by
(1) a majority vote of a quorum of those Trustees who are neither
"interested persons" of the Trust (as defined in Section 2(a)(19) of the
0000 Xxx) nor parties to the proceed ing ("Disinterested Non-Party
Trustees"), that the indemnitee is entitled to indemnifi cation hereunder,
or (2) if such quorum is not obtainable or even if obtainable, if such
majority so directs, independent legal counsel in a written opinion
concludes that the indemnitee should be entitled to indemnification
hereunder. All determina tions to make advance payments in connection with
the expense of defending any proceeding shall be authorized and made in
accordance with the immediately succeeding paragraph (c) below.
(c) The Trust shall make advance payments in
connection with the expenses of defending any action with respect to which
indemnification might be sought hereunder if the Trust receives a written
affirmation by the indemnitee of the indemnitee's good faith belief that
the standards of conduct necessary for indemnification have been met and a
written undertaking to reimburse the Trust unless it is subsequently
determined that the indemnitee is entitled to such indemnification and if a
majority of the Trustees determine that the applicable standards of conduct
necessary for indemnification appear to have been met. In addition, at
least one of the following conditions must be met: (i) the indemnitee shall
provide adequate security for his undertaking, (ii) the Trust shall be
insured against losses arising by reason of any lawful advances, or (iii) a
majority of a quorum of the Disinterested Non-Party Trustees, or if a
majority vote of such quorum so direct, independent legal counsel in a
written opinion, shall conclude, based on a review of readily available
facts (as opposed to a full trial-type inquiry), that there is substantial
reason to believe that the indemnitee ultimately will be found entitled to
indemnification.
(d) The rights accruing to any indemnitee under
these provisions shall not exclude any other right which any person may
have or hereafter acquire under this Declaration, the By-Laws of the Trust,
any statute, agreement, vote of stockholders or Trustees who are
"disinterested persons" (as defined in Section 2(a)(19) of the 0000 Xxx) or
any other right to which he or she may be lawfully entitled.
(e) Subject to any limitations provided by the
1940 Act and this Declaration, the Trust shall have the power and authority
to indemnify and provide for the advance payment of expenses to employees,
agents and other Persons providing services to the Trust or serving in any
capacity at the request of the Trust to the full extent corporations
organized under the Delaware General Corporation Law may indemnify or
provide for the advance payment of expenses for such Persons, provided that
such indemnification has been approved by a majority of the Trustees.
5.3 No Bond Required of Trustees. No Trustee shall, as
such, be obligated to give any bond or other security for the performance
of any of his duties hereunder.
5.4 No Duty of Investigation; Notice in Trust
Instruments, etc. No purchaser, lender, transfer agent or other person
dealing with the Trustees or with any officer, employee or agent of the
Trust shall be bound to make any inquiry concern ing 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, undertaking,
instrument, certificate, Share, other security of the Trust, and every
other act or thing whatsoever executed in connection with the Trust shall
be conclusively taken 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. The Trustees
may maintain insurance for the protection of the Trust Property, its
Shareholders, Trustees, officers, employees and agents in such amount as
the Trustees shall deem adequate to cover possible tort liability, and such
other insurance as the Trustees in their sole judgment shall deem advisable
or is required by the 1940 Act.
5.5 Reliance on Experts, etc. Each Trustee and officer or
employee of the Trust shall, in the performance of its duties, be fully and
completely justified and protected with regard to any act or any failure to
act resulting from reliance in good faith upon the books of account or
other records of the Trust, upon an opinion of counsel, or upon reports
made to the Trust by any of the Trust's officers or employees or by any
advisor, administrator, manager, distributor, selected dealer, accountant,
appraiser or other expert or consultant selected with reasonable care by
the Trustees, officers or employees of the Trust, regardless of whether
such counsel or expert may also be a Trustee.
ARTICLE VI
Shares of Beneficial Interest
6.1 Beneficial Interest. The interest of the
beneficiaries hereunder shall be divided into an unlimited number of
transferable shares of beneficial interest, par value $.001 per share. All
Shares issued in accordance with the terms hereof, including, without
limitation, Shares issued in connection with a dividend in Shares or a
split of Shares, shall be fully paid and, except as provided in the last
sentence of Section 3.8, nonassessable when the consideration determined by
the Trustees (if any) therefor shall have been received by the Trust.
6.2 Other Securities. The Trustees may, subject to the
Fundamental Policies and the requirements of the 1940 Act, authorize and
issue such other securities of the Trust as they determine to be necessary,
desirable or appropriate, having such terms, rights, preferences,
privileges, limitations and restrictions as the Trustees see fit, including
preferred interests, debt securities or other senior securi ties. To the
extent that the Trustees authorize and issue preferred shares of any class
or series, they are hereby authorized and empowered to amend or supplement
this Declaration as they deem necessary or appropriate, including to comply
with the requirements of the 1940 Act or requirements imposed by the rating
agencies or other Persons, all without the approval of Shareholders. Any
such supplement or amend ment shall be filed as is necessary. The Trustees
are also authorized to take such actions and retain such persons as they
see fit to offer and sell such securities.
6.3 Rights of Shareholders. The Shares shall be personal
property giving only the rights in this Declaration specifically set forth.
The ownership of the Trust Property of every description and the right to
conduct any business herein before 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, subject to the right of the Trustees to
charge certain expenses directly to Shareholders, as provided in the last
sentence of Section 3.8, suffer an assessment of any kind by virtue of
their ownership of Shares. The Shares shall not entitle the holder to
preference, preemptive, appraisal, conversion or exchange rights (except as
specified in this Section 6.3, in Section 11.4 or as speci fied by the
Trustees when creating the Shares, as in preferred shares).
6.4 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 partner ship, limited partnership, joint
stock association, corporation, bailment or any form of legal relationship
other than a trust. Nothing in this Declaration shall be construed to make
the Shareholders, either by themselves or with the Trustees, partners or
members of a joint stock association.
6.5 Issuance of Shares. The Trustees, in their
discretion, may from time to time without vote of the Shareholders issue
Shares including preferred shares that may have been established pursuant
to Section 6.2, 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 determine, 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.
The Trustees may from time to time divide or combine the Shares into a
greater or lesser number without thereby changing the proportionate
beneficial interest in such Shares. Issuances and redemp tions of Shares
may be made in whole Shares and/or l/l,000ths of a Share or multi ples
thereof as the Trustees may determine.
6.6 Register of Shares. A register shall be kept at the
offices of the Trust or any transfer agent duly appointed by the Trustees
under the direction of the Trustees 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. Separate registers
shall be established and maintained for each class or series of Shares.
Each such register shall be conclusive as to who are the holders of the
Shares of the applicable class or series of Shares and who shall be
entitled to receive dividends or distributions or otherwise to exercise or
enjoy the rights of Sharehold ers. No Shareholder shall be entitled to
receive payment of any dividend or distribu tion, nor to have notice given
to him as herein provided, until he has given his address to a transfer
agent or such other officer or agent of the Trustees as shall keep the
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
fees therefore and rules and regula tions as to their use.
6.7 Transfer Agent and Registrar. The Trustees shall have
power to employ a transfer agent or transfer agents, and a registrar or
registrars, with respect to the Shares. The transfer agent or transfer
agents may keep the applicable register and record therein, the original
issues and transfers, if any, of the said Shares. Any such transfer agents
and/or registrars shall perform the duties usually performed by transfer
agents and registrars of certificates of stock in a corporation, as
modified by the Trustees.
6.8 Transfer of Shares. Shares shall be transferable on
the records of the Trust only by the record holder thereof or by its agent
thereto duly authorized in writing, upon delivery to the Trustees or a
transfer agent of the Trust 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 applicable 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 hereof 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 applicable register of Shares
as the holder of such Shares upon production of the proper evidence thereof
to the Trustees or a transfer agent of the Trust, but until such record is
made, the Shareholder of record shall be deemed to be the holder of such
for all purposes hereof, 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.
6.9 Notices. Any and all notices to which any Shareholder
hereunder 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
applicable register of the Trust.
ARTICLE VII
Custodians
7.1 Appointment and Duties. The Trustees shall at all
times employ a custodian or custodians, meeting the qualifications for
custodians for portfolio securities of investment companies contained in
the 1940 Act, as custodian with respect to the assets of the Trust. Any
custodian shall have authority as agent of the Trust with respect to which
it is acting as determined by the custodian agreement or agreements, but
subject to such restrictions, limitations and other requirements, if any,
as may be contained in the By-Laws of the Trust and the 1940 Act:
(1) to hold the securities owned by the Trust and deliver
the same upon written order;
(2) to receive any receipt for any moneys due to the
Trust and deposit the same in its own banking department (if a
bank) or elsewhere as the Trustees may direct;
(3) to disburse such funds upon orders or vouchers;
(4) if authorized by the Trustees, to keep the books and
accounts of the Trust and furnish clerical and accounting
services; and
(5) if authorized to do so by the Trustees, to compute
the net income or net asset value of the Trust;
all upon such basis of compensation as may be agreed upon between the
Trustees and the custodian.
The Trustees may also authorize each 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 meet the
qualifications for custodians contained in the 1940 Act.
7.2 Central Certificate System. 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, pursuant to which system all securities of
any particular class 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.
ARTICLE VIII
Redemption
8.1 Redemptions. The Shares of the Trust are not
redeemable by the holders.
8.2 Disclosure of Holding. 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 Code, the 1940 or other applicable laws
or regulations, or to comply with the requirements of any other taxing or
regulatory authority.
ARTICLE IX
Determination of Net Asset Value
Net Income and Distributions
9.1 Net Asset Value. The net asset value of each
outstanding Share of the Trust shall be determined at such time or times on
such days as the Trustees may determine, in accordance with the 1940 Act.
The method of determination of net asset value shall be determined by the
Trustees and shall be as set forth in the Prospectus or as may otherwise be
determined by the Trustees. The power and duty to make the net asset value
calculations may be delegated by the Trustees and shall be as generally set
forth in the Prospectus or as may otherwise be determined by the Trustees.
9.2 Distributions to Shareholders. (a) The Trustees shall
from time to time distribute ratably among the Shareholders of any class of
Shares, or any series of any such class, in accordance with the number of
outstanding full and fractional Shares of such class or any series of such
class, such proportion of the net profits, surplus (including paid-in
surplus), capital, or assets held by the Trustees as they may deem proper
or as may otherwise be determined in accordance with this Declaration. Any
such distribution may be made in cash or property (including without
limitation any type of obligations of the Trust or any assets thereof) or
Shares of any class or series or any combination thereof, and the Trustees
may distribute ratably among the Shareholders of any class of shares or
series of any such class, in accordance with the number of outstanding full
and fractional Shares of such class or any series of such class, additional
Shares of any class or series in such manner, at such times, and on such
terms as the Trustees may deem proper or as may otherwise be determined in
accordance with this Declaration.
(b) Distributions pursuant to this Section 9.2
may be among the Shareholders of record of the applicable class or series
of Shares at the time of declaring a distribution or among the Shareholders
of record at such later date as the Trustees shall determine and specify.
(c) 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 to meet obligations of the Trust, or as they otherwise may
deem desirable to use in the conduct of its affairs or to retain for future
requirements or extensions of the busi ness.
(d) 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 to avoid or reduce
liability for taxes.
9.3 Power to Modify Foregoing Procedures. Notwithstanding
any of the foregoing provisions of this Article IX, the Trustees may
prescribe, in their absolute discretion except as may be required by the
1940 Act, such other bases and times for determining the per share asset
value of the Trust's Shares or net income, or the declaration and payment
of dividends and distributions as they may deem necessary or desirable for
any reason, including to enable the Trust to comply with any provision of
the 1940 Act, or any securities exchange or association registered under
the Securities Exchange Act of 1934, or any order of exemption issued by
the Commission, all as in effect now or hereafter amended or modified.
ARTICLE X
Shareholders
10.1 Meetings of Shareholders. The Trust shall hold
annual meetings of the Shareholders (provided that the Trust's initial
annual meeting of Shareholders may occur up to one year after the
completion of its initial fiscal year). A special meeting of Shareholders
may be called at any time by a majority of the Trustees or the President
and shall be called by any Trustee for any proper purpose upon written
request of Shareholders of the Trust holding in the aggregate not less than
51% of the outstanding Shares of the Trust or class or series of Shares
having voting rights on the matter, such request specifying the purpose or
purposes for which such meeting is to be called. Any shareholder meeting,
including a Special Meeting, shall be held within or without the State of
Delaware on such day and at such time as the Trustees shall designate.
10.2 Voting. Shareholders shall have no power to vote on
any matter except matters on which a vote of Shareholders is required by
applicable law, this Declaration or resolution of the Trustees. Except as
otherwise provided herein, any matter required to be submitted to
Shareholders and affecting one or more classes or series of Shares shall
require approval by the required vote of all the affected classes and
series of Shares voting together as a single class; provided, however, that
as to any matter with respect to which a separate vote of any class or
series of Shares is required by the 1940 Act, such requirement as to a
separate vote by that class or series of Shares shall apply in addition to
a vote of all the affected classes and series voting together as a single
class. Shareholders of a particular class or series of Shares shall not be
entitled to vote on any matter that affects only one or more other classes
or series of Shares. There shall be no cumulative voting in the election or
removal of Trustees.
10.3 Notice of Meeting and Record Date. Notice of all
meetings of Shareholders, stating the time, place and purposes of the
meeting, shall be given by the Trustees by mail to each Shareholder of
record entitled to vote thereat at its registered address, mailed at least
10 days and not more than 90 days before the meeting or otherwise in
compliance with applicable law. Only the business stated in the notice of
the meeting shall be considered at such meeting. Any adjourned meeting may
be held as adjourned one or more times without further notice not later
than 120 days after the record date. For the purposes of determining the
Sharehold ers who are entitled to notice of and to vote at any meeting the
Trustees may, without closing the transfer books, fix a date not more than
90 nor less than 10 days prior to the date of such meeting of Shareholders
as a record date for the determination of the Persons to be treated as
Shareholders of record for such purposes.
10.4 Quorum and Required Vote. (a) The holders of a
majority of the Shares entitled to vote on any matter at a meeting present
in person or by proxy shall constitute a quorum at such meeting of the
Shareholders for purposes of conducting business on such matter. The
absence from any meeting, in person or by proxy, of a quorum of
Shareholders for action upon any given matter shall not prevent action at
such meeting upon any other matter or matters which may properly come
before the meeting, if there shall be present thereat, in person or by
proxy, a quorum of Shareholders in respect of such other matters.
(b) Subject to any provision of applicable law,
this Declaration or a resolution of the Trustees specifying a greater or a
lesser vote requirement for the transaction of any item of business at any
meeting of Shareholders, (i) the affirmative vote of a majority of the
Shares present in person or represented by proxy and entitled to vote on
the subject matter shall be the act of the Shareholders with respect to
such matter, and (ii) where a separate vote of one or more classes or
series of Shares is required on any matter, the affirmative vote of a
majority of the Shares of such class or series of Shares present in person
or represented by proxy at the meeting shall be the act of the Shareholders
of such class or series with respect to such matter.
10.5 Proxies, etc. At any meeting of Shareholders, any
holder of Shares entitled to vote thereat may vote by properly executed
proxy, provided that no proxy shall be voted at any meeting unless it shall
have been placed on file with the Secretary, or with such other officer or
agent of the Trust as the Secretary may direct, for verification prior to
the time at which such vote shall be taken. Pursuant to a resolution of a
majority of the Trustees, proxies may be solicited in the name of one or
more Trustees or one or more of the officers or employees of the Trust. No
proxy shall be valid after the expiration of 11 months from the date
thereof, unless other wise provided in the proxy. Only Shareholders of
record shall be entitled to vote. Each full Share shall be entitled to one
vote and fractional Shares shall be entitled to a vote of such fraction.
When any Share is held jointly by several persons, any one of them may vote
at any meeting in person or by proxy in respect of such Share, but if more
than one of them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to any vote
to be cast, such vote shall not be received in respect of such Share. A
proxy purporting to be executed by or on behalf of a Shareholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden
of proving invalidity shall rest on the chal xxxxxx. If the holder of any
such Share is a minor or a person of unsound mind, and subject to
guardianship or to the legal control of any other person as regards the
charge or management of such Share, he may vote by his guardian or such
other person appointed or having such control, and such vote may be given
in person or by proxy.
10.6 Reports. The Trustees shall cause to be prepared at
least annually and more frequently to the extent and in the form required
by law, regula tion or any exchange on which Trust Shares are listed a
report of operations contain ing a balance sheet and statement of income
and undistributed income of the Trust prepared in conformity with generally
accepted accounting principles and an opinion of an independent public
accountant on such financial statements. Copies of such reports shall be
mailed to all Shareholders of record within the time required by the 1940
Act, and in any event within a reasonable period preceding the meeting of
Shareholders. The Trustees shall, in addition, furnish to the Shareholders
at least semi-annually to the extent required by law, interim reports
containing an unaudited balance sheet of the Trust as of the end of such
period and an unaudited statement of income and surplus for the period from
the beginning of the current fiscal year to the end of such period.
10.7 Inspection of Records. The records of the Trust
shall be open to inspection by Shareholders to the same extent as is
permitted shareholders of a corporation formed under the Delaware General
Corporation Law.
10.8 Shareholder Action by Written Consent. Any action
which may be taken by Shareholders by vote may be taken without a meeting
if the holders entitled to vote thereon of the proportion of Shares
required for approval of such action at a meeting of Shareholders pursuant
to Section 10.4 consent to the action in writing and the written consents
are filed with the records of the meetings of Share holders. Such consent
shall be treated for all purposes as a vote taken at a meeting of
Shareholders.
ARTICLE XI
Duration; Termination of Trust;
Amendment; Mergers, Etc.
11.1 Duration. Subject to possible termination in
accordance with the provisions of Section 11.2 hereof, the Trust created
hereby shall have perpetual existence.
11.2 Termination. (a) The Trust may be dissolved, after a
majority of the Trustees have approved a resolution therefor, upon approval
by not less than 75% of the Shares of each class or series outstanding and
entitled to vote, voting as separate classes or series, unless such
resolution has been approved by 80% of the Trustees, in which case approval
by a Majority Shareholder Vote shall be required. Upon the dissolution of
the Trust:
(i) The Trust shall carry on no
business except for the purpose of winding up its affairs.
(ii) The Trustees shall proceed to wind
up the affairs of the Trust and all of the powers of the Trustees
under this Declaration shall continue until the affairs of the
Trust shall have been wound up, including the power to fulfill or
discharge the contracts of the Trust, collect its assets, sell,
convey, assign, exchange, merge where the Trust is not the
survivor, transfer or otherwise dispose of all or any part of the
remaining Trust Property to one or more Persons at public or
private sale for consideration which may consist in whole or in
part in 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, merger in which the Trust is not the
survivor, transfer or other disposi tion of all or substantially
all the Trust Property of the Trust shall require approval of the
principal terms of the transaction and the nature and amount of
the consideration by Shareholders with the same vote as required
to open-end the Trust.
(iii) After paying or adequately
providing for the payment of all liabilities, and upon receipt of
such releases, in demnities and refunding agreements, as they
deem necessary for their protection, the Trustees may distribute
the remaining Trust Property, in cash or in kind or partly each,
among the Shareholders according to their respective rights.
(b) After the winding up and termination of the
Trust and distribution to the Shareholders as herein provided, a majority
of the Trustees shall execute and lodge among the records of the Trust an
instrument in writing setting forth the fact of such termination and shall
execute and file a certificate of cancella tion with the Secretary of State
of the State of Delaware. Upon termination of the Trust, the Trustees shall
thereupon be discharged from all further liabilities and duties hereunder,
and the rights and interests of all Shareholders shall thereupon cease.
11.3 Amendment Procedure. (a) Except as provided in
subsection (b) of this Section 11.3, this Declaration may be amended, after
a majority of the Trustees have approved a resolution therefor, by the
affirmative vote of the holders of not less than a majority of the affected
Shares. The Trustees also may amend this Declaration without any vote of
Shareholders of any class of series to divide the Shares of the Trust into
one or more classes or additional classes, or one or more series of any
such class or classes, to change the name of the Trust or any class or
series of Shares, to make any change that does not adversely affect the
relative rights or preferences of any Shareholder, as they may deem
necessary, or to conform this Declaration to the requirements of the 1940
Act or any other applicable federal laws or regulations including pursuant
to Section 6.2 or the requirements of the regulated investment company
provisions of the Code, but the Trustees shall not be liable for failing to
do so.
(b) No amendment may be made to Section 2.1,
Section 2.2, Section 2.3, Section 3.9, Section 5.1, Section 5.2, Section
11.2(a), this Section 11.3, Section 11.4, Section 11.6 or Section 11.7 of
this Declaration and no amendment may be made to this Declaration which
would change any rights with respect to any Shares of the Trust by reducing
the amount payable thereon upon liquidation of the Trust or by diminishing
or eliminating any voting rights pertaining thereto (except that this
provision shall not limit the ability of the Trustees to authorize, and to
cause the Trust to issue, other securities pursuant to Section 6.2), except
after a majority of the Trustees have approved a resolution therefor, by
the affirmative vote of the holders of not less than seventy-five percent
(75%) of the Shares of each affected class or series outstanding, voting as
separate classes or series, unless such amend ment has been approved by 80%
of the Trustees, in which case approval by a Majority Shareholder Vote
shall be required. 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) An amendment duly adopted by the requisite
vote of the Board of Trustees and, if required, the Shareholders as
aforesaid, shall become effective at the time of such adoption or at such
other time as may be designated by the Board of Trustees or Shareholders,
as the case may be. A certification in record able form signed by a
majority of the Trustees setting forth an amendment and reciting that it
was duly adopted by the Trustees and, if required, the Shareholders as
aforesaid, or a copy of the Declaration, as amended, in recordable form,
and executed by a majority of the Trustees, shall be conclusive evidence of
such amendment when lodged among the records of the Trust or at such other
time designated by the Board.
Notwithstanding any other provision hereof, until such
time as a Registration Statement under the Securities Act of 1933, as
amended, covering the first public offering of Shares of the Trust shall
have become effective, this Declara tion may be terminated or amended in
any respect by the affirmative vote of a majority of the Trustees or by an
instrument signed by a majority of the Trustees.
11.4 Merger, Consolidation and Sale of Assets. Except as
provided in Section 11.7, the Trust may merge or consolidate with any other
corporation, association, trust or other organization or may sell, lease or
exchange all or substan tially all of the Trust Property or the property,
including its good will, upon such terms and conditions and for such
consideration when and as authorized by two- thirds of the Trustees and
approved by a Majority Shareholder Vote and any such merger, consolidation,
sale, lease or exchange shall be determined for all purposes to have been
accomplished under and pursuant to the statutes of the State of Delaware.
11.5 Subsidiaries. Without approval by Shareholders, the
Trustees may cause to be organized or assist in organizing one or more
corporations, trusts, partnerships, associations or other organizations to
take over all of the Trust Property or to carry on any business in which
the Trust shall directly or indirectly have any interest, and to sell,
convey and transfer all or a portion of the Trust Property to any such
corporation, trust, limited liability company, 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, limited liability company,
partnership, association or organization, or any corporation, partnership,
trust, limited liability company, association or organization in which the
Trust holds or is about to acquire shares or any other interests.
11.6 Conversion. Notwithstanding any other provisions of
this Declaration or the By-Laws of the Trust, a favorable vote of a
majority of the Trustees then in office followed by the favorable vote of
the holders of not less than seventy-five percent (75%) of the Shares of
each affected class or series outstanding, voting as separate classes or
series, shall be required to approve, adopt or authorize an amendment to
this Declaration that makes the Shares a "redeemable security" as that term
is defined in the 1940 Act, unless such amendment has been approved by 80%
of the Trustees, in which case approval by a Majority Shareholder Vote
shall be required. Upon the adoption of a proposal to convert the Trust
from a "closed-end company" to an "open-end company" as those terms are
defined by the 1940 Act and the necessary amendments to this Declaration to
permit such a conversion of the Trust's outstanding Shares entitled to
vote, the Trust shall, upon complying with any requirements of the 1940 Act
and state law, become an "open-end" investment company. Such affirmative
vote or consent shall be in addition to the vote or consent of the holders
of the Shares otherwise required by law, or any agreement between the Trust
and any national securities exchange.
11.7 Certain Transactions. (a) Notwithstanding any other
provision of this Declaration and subject to the exceptions provided in
paragraph (d) of this Section, the types of transactions described in
paragraph (c) of this Section shall require the affirmative vote or consent
of a majority of the Trustees then in office followed by the affirmative
vote of the holders of not less than seventy-five percent (75%) of the
Shares of each affected class or series outstanding, voting as separate
classes or series, when a Principal Shareholder (as defined in paragraph
(b) of this Section) is a party to the transaction. Such affirmative vote
or consent shall be in addition to the vote or consent of the holders of
Shares otherwise required by law or by the terms of any class or series of
preferred stock, whether now or hereafter authorized, or any agreement
between the Trust and any national securities exchange.
(b) The term "Principal Shareholder" shall mean
any corpora tion, Person or other entity which is the beneficial owner,
directly or indirectly, of five percent (5%) or more of the outstanding
Shares of any class or series and shall include any affiliate or associate,
as such terms are defined in clause (ii) below, of a Principal Shareholder.
For the purposes of this Section, in addition to the Shares which a
corporation, Person or other entity beneficially owns directly, (a) any
corporation, Person or other entity shall be deemed to be the beneficial
owner of any Shares (i) which it has the right to acquire pursuant to any
agreement or upon exercise of conversion rights or warrants, or otherwise
(but excluding share options granted by the Trust) or (ii) which are
beneficially owned, directly or indirectly (including Shares deemed owned
through application of clause (i) above), by any other corporation, Person
or entity with which its "affiliate" or "associate" (as defined below) has
any agreement, arrangement or understanding for the purpose of acquir ing,
holding, voting or disposing of Shares, or which is its "affiliate" or
"associate" as those terms are defined in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934, and (b) the
outstanding Shares shall include Shares deemed owned through application of
clauses (i) and (ii) above but shall not include any other Shares which may
be issuable pursuant to any agreement, or upon exercise of conversion
rights or warrants, or otherwise.
(c) This Section shall apply to the following
transactions:
(i) The merger or consolidation of the
Trust or any subsidiary of the Trust with or into any Principal
Shareholder.
(ii) The issuance of any securities of
the Trust to any Principal Shareholder for cash (other than
pursuant to any automatic dividend reinvestment plan).
(iii) The sale, lease or exchange of
all or any substan tial part of the assets of the Trust to any
Principal Shareholder (except assets having an aggregate fair
market value of less than $1,000,000, aggregating for the purpose
of such computation all assets sold, leased or exchanged in any
series of similar transactions within a twelve-month period.)
(iv) The sale, lease or exchange to the
Trust or any subsidiary thereof, in exchange for securities of
the Trust, of any assets of any Principal Shareholder (except
assets having an aggregate fair market value of less than
$1,000,000, aggregating for the purposes of such computation all
assets sold, leased or exchanged in any series of similar
transactions within a twelve-month period).
(d) The provisions of this Section shall not be
applicable to (i) any of the transactions described in paragraph (c) of
this Section if 80% of the Trustees shall by resolution have approved a
memorandum of understanding with such Principal Shareholder with respect to
and substantially consistent with such transaction, in which case approval
by a Majority Shareholder Vote shall be the only vote of Shareholders
required by this Section, or (ii) any such transaction with any entity of
which a majority of the outstanding shares of all classes and series of a
stock normally entitled to vote in elections of directors is owned of
record or beneficially by the Trust and its subsidiaries.
(e) The Board of Trustees shall have the power
and duty to determine for the purposes of this Section on the basis of
information known to the Trust whether (i) a corporation, person or entity
beneficially owns five percent (5%) or more of the outstanding Shares of
any class or series, (ii) a corporation, person or entity is an "affiliate"
or "associate" (as defined above) of another, (iii) the assets being
acquired or leased to or by the Trust or any subsidiary thereof constitute
a substantial part of the assets of the Trust and have an aggregate fair
market value of less than $1,000,000, and (iv) the memorandum of
understanding referred to in paragraph (d) hereof is substantially
consistent with the transaction covered thereby. Any such determination
shall be conclusive and binding for all purposes of this Section.
ARTICLE XII
Miscellaneous
12.1 Filing. (a) This Declaration and any amendment or
supplement hereto shall be filed in such places as may be required or as
the Trustees deem appropriate. Each amendment or supplement shall be
accompanied by a certificate signed and acknowledged by a Trustee stating
that such action was duly taken in a manner provided herein, and shall,
upon insertion in the Trust's minute book, be conclusive evidence of all
amendments contained therein. A restated Declaration, containing the
original Declaration and all amendments and supplements theretofore made,
may be executed from time to time by a majority of the Trustees and shall,
upon insertion in the Trust's minute book, be conclusive evidence of all
amendments and supplements contained therein and may thereafter be referred
to in lieu of the original Declaration and the various amendments and
supplements thereto.
(b) The Trustees hereby authorize and direct a
Certificate of Trust, in the form attached hereto as Exhibit A, to be
executed and filed with the Office of the Secretary of State of the State
of Delaware in accordance with the Delaware Statutory Trust Act.
12.2 Resident Agent. The Trust shall maintain a resident
agent in the State of Delaware, which agent shall initially be The
Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000
The Trustees may designate a successor resident agent, provided, however,
that such appointment shall not become effective until written notice
thereof is delivered to the office of the Secretary of the State.
12.3 Governing Law. This Declaration is executed by the
Trustees and delivered in the State of Delaware 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 laws of said State and reference shall be specifically made to
the Delaware General Corporation Law as to the construction of matters not
specifically covered herein or as to which an ambiguity exists, although
such law shall not be viewed as limiting the powers otherwise granted to
the Trustees hereunder and any ambiguity shall be viewed in favor of such
powers.
12.4 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.
12.5 Reliance by Third Parties. Any certificate executed
by an individual who, according to the records of the Trust, or of any
recording office in which this Declaration may be recorded, appears to be a
Trustee hereunder, certifying to: (a) the number or identity of Trustees or
Shareholders, (b) the name of the Trust, (c) the due authorization of the
execution of any instrument or writing, (d) the form of any vote passed at
a meeting of Trustees or Shareholders, (e) the fact that the number of
Trustees or Shareholders present at any meeting or executing any written
instrument satisfies the requirements of this Declaration, (f) the form of
any By Laws adopted by or the identity of any officers elected by the
Trustees, or (g) 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.
12.6 Provisions in Conflict with Law or Regulation. (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 determina tion 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 provision in any other jurisdiction
or any other provision of this Declaration in any jurisdiction.
IN WITNESS WHEREOF, the undersigned has caused these
presents to be executed as of the day and year first above written.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Sole Trustee
