Exhibit 2a.2
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WESTERN ASSET PREMIER BOND FUND
(formerly known as Western Asset Core Plus Bond Trust I)
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
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February 5, 2002
WESTERN ASSET PREMIER BOND FUND
(formerly known as Western Asset Core Plus Bond Trust I)
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AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
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AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made this 5th
day of February, 2002, by the Trustees hereunder, and by the holders of shares
of beneficial interest issued and to be issued hereunder as hereinafter
provided, amending and restating the Agreement and Declaration of Trust made at
Boston, Massachusetts the 17/th/ day of December, 2001.
WHEREAS, pursuant to Article IX, Section 7 of the Agreement and
Declaration of Trust, the Trustees of the Trust and the holders of all of the
shares of beneficial interest of the Trust have determined that the Agreement
and Declaration of Trust should be amended and restated in its entirety as
hereinafter set forth.
NOW, THEREFORE, this Amended and Restated Agreement and Declaration of
Trust shall take effect as of the time of execution by the required number of
Trustees of the Trust and shall be filed with the Secretary of State of The
Commonwealth of Massachusetts and the Clerk of the City of Boston.
WITNESSETH that
WHEREAS, this Trust has been formed to carry on the business of an
investment company; and
WHEREAS, the Trustees have agreed to manage all property coming into
their hands as trustees of a Massachusetts business trust in accordance with the
provisions hereinafter set forth.
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 pro rata benefit of the holders from
time to time of Shares in this Trust as hereinafter set forth.
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ARTICLE I
NAME AND DEFINITIONS
Name
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Section 1. This Trust, heretofore known as "Western Asset Core Plus Bond
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Trust I," shall hereafter be known as "Western Asset Premier Bond Fund" and the
Trustees shall conduct the business of the Trust under that name or any other
name as they may from time to time determine.
Definitions
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Section 2. Whenever used herein, unless otherwise required by the context
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or specifically provided:
(a) The "Trust" refers to the Massachusetts business trust
established by this Declaration, as amended or restated from time to time;
(b) "Trustees" refers to the Trustees of the Trust named
herein or elected in accordance with Article IV;
(c) "Shares" means the equal proportionate transferable units
of interest into which the beneficial interest in the Trust shall be
divided from time to time or, if more than one class or series of Shares is
authorized by the Trustees, the equal proportionate transferable units into
which each class or series of shares shall be divided from time to time;
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company Act of
1940, and the rules or regulations thereunder or applicable orders of the
Securities and Exchange Commission or interpretations of its staff, as such
statute, rules, regulations, orders or interpretations may be amended from
time to time;
(f) The terms "Affiliated Person", "Interested Person" and
"Principal Underwriter" shall have the applicable meanings given them in
the 1940 Act;
(g) "Declaration" shall mean this Agreement and Declaration of
Trust, as amended or restated from time to time;
(h) "Bylaws" shall mean the Bylaws of the Trust as amended or
restated from time to time;
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(i) The term "class," when used in connection with Shares,
refers to the division of Shares into two or more classes as provided
in Article III, Section 1 hereof; the term "Class," when used in
connection with the Trustees, refers to the division of Trustees into
two or more Classes as provided in Article IV, Section 1 hereof;
(j) The term "series" or "series of Shares" refers to the
division of Shares representing any class into two or more series as
provided in Article III, Section 1 hereof; and
(k) The term "Continuing Trustee" shall have the meaning
given to such term in Article IV, Section 2 hereof.
ARTICLE II
PURPOSE
The purpose of the Trust is to provide investors a managed investment
primarily in securities, debt instruments and other instruments and rights of a
financial character and to carry on such other business as the Trustees may from
time to time determine pursuant to their authority under this Declaration.
ARTICLE III
SHARES
Division of Beneficial Interest
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Section 1. The Trustees may, without Shareholder approval, authorize
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one or more classes of Shares (which classes may be divided into two or more
series), Shares of each such class or series having such par value and such
preferences, voting powers, terms of redemption, if any, and special or relative
rights or privileges (including conversion rights, if any) as the Trustees may
determine. Subject to applicable law, the Trustees may, without Shareholder
approval, authorize the Trust to issue subscription or other rights representing
interests in Shares to existing Shareholders or other persons subject to such
terms and conditions as the Trustees may determine. The number of Shares of each
class or series authorized shall be unlimited, except as the Bylaws may
otherwise provide, and the Shares so authorized may be represented in part by
fractional shares. The Trustees may from time to time divide or combine the
Shares of any class or series into a greater or lesser number without thereby
changing the proportionate beneficial interest in the class or series.
Ownership of Shares
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Section 2. The ownership of Shares shall be recorded on the books of
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the Trust or a transfer or similar agent. Except as provided in the Bylaws or as
the Trustees may otherwise
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determine from time to time, no certificates certifying the ownership of Shares
shall be issued. The Trustees may make such rules as they consider appropriate
for the issuance of Share certificates, the transfer of Shares and similar
matters. The record books of the Trust as kept by the Trust or any transfer or
similar agent, as the case may be, shall be conclusive as to who are the
Shareholders of each class and series and as to the number of Shares of each
class and series held from time to time by each Shareholder.
Investments in the Trust
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Section 3. The Trustees shall accept investments in the Trust from such
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persons and on such terms and, subject to any requirements of law, for such
consideration, which may consist of cash or tangible or intangible property or a
combination thereof, as the Trustees or the Bylaws from time to time authorize.
No Preemptive Rights
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Section 4. Shareholders shall have no preemptive or other right to receive,
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purchase or subscribe for any additional Shares or other securities issued by
the Trust.
Derivative Claims
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Section 5. No Shareholder shall have the right to bring or maintain any
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court action, proceeding or claim on behalf of the Trust or any series or class
of Shares without first making demand on the Trustees requesting the Trustees to
bring or maintain such action, proceeding or claim. Such demand shall not be
excused under any circumstances, including claims of alleged interest on the
part of the Trustees, unless the plaintiff makes a specific showing that
irreparable nonmonetary injury to the Trust or series or class of Shares would
otherwise result. Such demand shall be mailed to the Secretary of the Trust at
the Trust's principal office and shall set forth with particularity the nature
of the proposed court action, proceeding or claim and the essential facts relied
upon by the Shareholder to support the allegations made in the demand. The
Trustees shall consider such demand within 45 days of its receipt by the Trust.
In their sole discretion, the Trustees may submit the matter to a vote of
Shareholders of the Trust or a series or class of Shares, as appropriate. Any
decision by the Trustees to bring, maintain or settle (or not to bring, maintain
or settle) such court action, proceeding or claim, or to submit the matter to a
vote of Shareholders, shall be binding upon the Shareholders. Any decision by
the Trustees to bring or maintain a court action, proceeding or suit on behalf
of the Trust or a series or class of Shares shall be subject to the right of the
Shareholders under Article V hereof to vote on whether or not such court action,
proceeding or suit should or should not be brought or maintained.
Direct Claims
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Section 6. No group of Shareholders shall have the right to bring or
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maintain a direct action or claim for monetary damages against the Trust or the
Trustees predicated upon an express or implied right of action under this
Declaration or the 1940 Act (excepting rights of
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action permitted under section 36(b) of the 1940 Act), nor shall any single
Shareholder, who is similarly situated to one or more other Shareholders with
respect to the alleged injury, have the right to bring such an action, unless
such group of Shareholders or such Shareholder has obtained authorization from
the Trustees to bring the action. The requirement of authorization shall not be
excused under any circumstances, including claims of alleged interest on the
part of the Trustees. A request for authorization shall be mailed to the
Secretary of the Trust at the Trust's principal office and shall set forth with
particularity the nature of the proposed court action, proceeding or claim and
the essential facts relied upon by the group of Shareholders or Shareholder to
support the allegations made in the request. The Trustees shall consider such
request within 45 days of its receipt by the Trust. In their sole discretion,
the Trustees may submit the matter to a vote of Shareholders of the Trust or
series or class of Shares, as appropriate. Any decision by the Trustees to
settle or to authorize (or not to settle or not to authorize) such court action,
proceeding or claim, or to submit the matter to a vote of Shareholders, shall be
binding upon the group of Shareholders or Shareholder seeking authorization. Any
decision by the Trustees to authorize a court action, proceeding or suit by a
group of Shareholders shall be subject to the right of the Shareholders under
Article V hereof to vote on whether or not such court action, proceeding or suit
should or should not be brought or maintained.
Status of Shares and Limitation of Personal Liability
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Section 7. Shares shall be deemed to be personal property giving only the
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rights provided in this Declaration or the Bylaws. Every Shareholder by virtue
of having become a Shareholder shall be held to have expressly assented and
agreed to the terms of this Declaration and the Bylaws and to have become a
party hereto and thereto. The death of a Shareholder during the continuance of
the Trust shall not operate to terminate the same nor entitle the representative
of any deceased Shareholder to an accounting or to take any action in court or
elsewhere against the Trust or the Trustees, but only to the rights of said
decedent under this Trust. Ownership of Shares shall not entitle the Shareholder
to any title in or to the whole or any part of the Trust property or right to
call for a partition or division of the same or for an accounting, nor shall the
ownership of Shares constitute the Shareholders partners. Neither the Trust nor
the Trustees, nor any officer, employee or agent of the Trust, shall have any
power to bind personally any Shareholder, nor except as specifically provided
herein 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.
ARTICLE IV
THE TRUSTEES
Number and Classes of Trustees and Term of Office
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Section 1. Subject to the voting powers of one or more classes or series of
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Shares as set forth in the Bylaws, the number of Trustees shall be such number
as shall be fixed from time to time by a written instrument signed by a majority
of the Trustees; provided, however, that the
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number of Trustees shall in no event be less than three (3) from and after the
date when Shares are first sold pursuant to an initial registered public
offering. The Trustees on the date hereof and such other persons as the Trustee
or Trustees then in office shall, prior to any sale of Shares pursuant to an
initial registered public offering, elect, shall serve until the first meeting
of Shareholders at which Trustees are elected and until his or her successor is
elected and qualified, or until he or she sooner dies, resigns, retires or is
disqualified or removed from office, subject in each case to the Classes of
Trustees and terms created pursuant to this Article IV.
An initial annual meeting of Shareholders or special meeting in lieu
thereof shall be called to be held not more than fifteen months after Shares are
first sold pursuant to an initial registered public offering; subsequent annual
meetings of Shareholders or special meetings in lieu thereof (each an "annual
meeting") shall be held as specified in the Bylaws. Prior to any sale of Shares
pursuant to an initial registered public offering, the Trustees shall be
classified, with respect to the time for which they severally hold office, into
the following three classes: Class I, whose term expires at the initial annual
meeting; Class II, whose term expires at the next succeeding annual meeting
after the initial annual meeting (the "second annual meeting"); and Class III,
whose term expires at the next succeeding annual meeting after the second annual
meeting. 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. At each
annual meeting beginning with the initial annual meeting, the successors of the
Class of Trustees whose term expires at that meeting shall be elected to hold
office for a term expiring at the annual meeting held in the third year
following the year of their election, with each Trustee holding office until the
expiration of the term of the relevant Class and the election and qualification
of his or her successor, or until he or she sooner dies, resigns, retires, or is
disqualified or removed from office.
The Trustees shall assign by resolution from their number Trustees to
each of the three Classes. The Trustees may also determine by resolution those
Trustees in each Class that shall be elected by Shareholders of a particular
class of Shares (e.g., by a class of preferred Shares issued by the Fund). If
the number of Trustees is changed, any increase or decrease shall be apportioned
among the Classes, as of the annual meeting of Shareholders next succeeding any
such change, so as to maintain a number of Trustees in each Class as nearly
equal as possible, with the result that, to the extent a Trustee is assigned to
a new Class, his or her term as Trustee shall coincide with that of his or her
newly assigned Class. No reduction in the number of Trustees shall have the
effect of removing any Trustee from office prior to the expiration of his or her
term unless the Trustee is specifically removed pursuant to Section 3 of this
Article at the time of the decrease. Except as provided in this Section 1 or
Section 3 of this Article, after the initial registered public offering of the
Shares, Trustees shall be elected only at an annual meeting of Shareholders.
Continuing Trustee; Definition
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Section 2. For purposes of this Declaration and the Bylaws, the term
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"Continuing Trustee" shall mean any member of the Board of Trustees who either
(a) has been a member of the Board of Trustees for a period of at least
thirty-six months (or since immediately after the
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initial registered public offering of the Trust's Shares, if less than
thirty-six months) or (b) was nominated to serve as a member of the Board of
Trustees by a majority of the Continuing Trustees then members of the Board of
Trustees.
Vacancies; Resignation; Removal
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Section 3. From and after the date when Shares are first sold pursuant
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to an initial registered public offering and subject to any voting powers of one
or more classes or series of Shares as set forth in this Declaration or in the
Bylaws or by resolution of the Board of Trustees, any vacancies occurring in the
Board of Trustees may be filled by the Trustees as set forth below. Prior to the
date when Shares are first sold pursuant to an initial registered public
offering, subject to any limitations imposed by the 1940 Act or other applicable
law, any vacancies occurring in the Board of Trustees may be filled by the
Trustees without any action by or meeting of Shareholders.
From and after the date when Shares are first sold pursuant to an
initial registered public offering and subject to any voting powers of one or
more classes or series of Shares as set forth in this Declaration or in the
Bylaws or by resolution of the Board of Trustees, and subject to any limitations
imposed by the 1940 Act or other applicable law, any vacancy occurring in the
Board of Trustees that results from an increase in the number of Trustees may be
filled by a majority of the entire Board of Trustees, and any other vacancy
occurring in the Board of Trustees may be filled by a majority of the Trustees
then in office, whether or not sufficient to constitute a quorum, or by a sole
remaining Trustee; provided, however, that if the Shareholders of any class or
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series of Shares are entitled separately to elect one or more Trustees, a
majority of the remaining Trustees elected by that class or series 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. A Trustee elected by the
Board of Trustees (or a group of Trustees or a single Trustee, as the case may
be, as provided herein) to fill any vacancy occurring in the Board of Trustees
shall serve until the next annual meeting of Shareholders and until his
successor shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office. At any annual
meeting of Shareholders, any Trustee elected to fill any vacancy occurring in
the Board of Trustees that has arisen since the preceding annual meeting of
Shareholders (whether or not any such vacancy has been filled by election of a
new Trustee by the Board of Trustees (or a group of Trustees or a single
Trustee, as the case may be, as provided herein)) shall hold office for a term
which coincides with the remaining term of the Class of Trustee to which such
office was previously assigned, if such vacancy arose other than by an increase
in the number of Trustees, and until his successor shall be elected and shall
qualify. In the event such vacancy arose due to an increase in the number of
Trustees, any Trustee so elected to fill such vacancy at an annual meeting shall
hold office for a term which coincides with that of the Class of Trustee to
which such office has been apportioned as heretofore provided, and until his
successor shall be elected and shall qualify or until he or she sooner dies,
resigns, retires, or is disqualified or removed from office.
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Any Trustee may resign his trust or retire as a Trustee (without need
for prior or subsequent accounting except in the event of removal) by an
instrument in writing signed by him and delivered to the President or Secretary
of the Trust (or, if prior to any sale of Shares pursuant to an initial
registered public offering, delivered to the remaining Trustee or Trustees), and
such resignation or retirement shall be effective upon such delivery, or at a
later date according to the terms of the instrument. Subject to any voting
powers of one or more classes or series of Shares as set forth in this
Declaration or in the Bylaws, any Trustee may be removed from office only for
"Cause" (as hereinafter defined) and only (i) by action of at least seventy-five
percent (75%) of the outstanding Shares of the classes or series of Shares
entitled to vote for the election of such Trustee, at a meeting called for the
purpose, or (ii) by written instrument, signed by at least seventy-five percent
(75%) of the remaining Trustees, specifying the date when such removal shall
become effective. "Cause" for these purposes shall require willful misconduct,
dishonesty or fraud on the part of the Trustee in the conduct of his or her
office or such Trustee being convicted of a felony.
Effect of Death, Resignation, etc. of a Trustee
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Section 4. The death, declination, resignation, retirement, removal,
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disqualification or incapacity of the Trustees, or any one of them, shall not
operate to annul the Trust or to revoke any existing agency created pursuant to
the terms of this Declaration.
Powers
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Section 5. Subject to the provisions of this Declaration, the business
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of the Trust shall be managed by the Trustees, and they shall have all powers
necessary or convenient to carry out that responsibility. Without limiting the
foregoing, the Trustees may adopt Bylaws not inconsistent with this Declaration
providing for the conduct of the business of the Trust and may amend and repeal
them to the extent and as provided in Article IX, Section 7(c) of this
Declaration. Subject to the voting power of one or more classes or series of
Shares as set forth in this Declaration or in the Bylaws or by resolution of the
Board of Trustees, the Trustees may fill vacancies in or add to their number,
including vacancies resulting from increases in their number, and may elect and
remove such officers and appoint and terminate such agents as they consider
appropriate; they may appoint from their own number, and terminate, any one or
more committees consisting of one or more Trustees, including an executive
committee which may, when the Trustees are not in session, exercise some or all
of the power and authority of the Trustees as the Trustees may determine; they
may appoint an advisory board, the members of which shall not be Trustees and
need not be Shareholders; they may employ one or more custodians of the assets
of the Trust and may authorize such custodians to employ subcustodians and to
deposit all or any part of such assets in a system or systems for the central
handling of securities; they may retain a transfer agent or a shareholder
servicing agent, or both, and provide for the distribution of Shares by the
Trust, through one or more principal underwriters or otherwise; they may set
record dates for the determination of Shareholders with respect to various
matters; and they may in general delegate such authority as they consider
desirable to
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any officer of the Trust, to any committee of the Trustees and to any agent or
employee of the Trust or to any such custodian or underwriter.
Without limiting the foregoing, the Trustees shall have power and
authority:
(a) To invest and reinvest cash, and to hold cash uninvested;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate,
write options on and lease any or all of the assets of the Trust;
(c) 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 proxies or 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;
(d) To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating
any trust, whether in bearer, unregistered or other negotiable form, or
in the name of the Trustees or of the Trust or in the name of a
custodian, subcustodian or other depository or a nominee or nominees or
otherwise;
(f) To the extent necessary or appropriate to give effect to
the preferences, special or relative rights or privileges of any
classes or series of Shares, to allocate assets, liabilities, income
and expenses of the Trust to a particular class or classes or series of
Shares or to apportion the same among two or more classes or series;
(g) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer,
any security of which is or was held in the Trust; and to consent to
any contract, lease, mortgage, purchase or sale of property by such
corporation or issuer, and to pay calls or subscriptions with respect
to any security held in the Trust;
(h) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security to,
any such committee, depositary or trustee, and to delegate to them such
power and authority with relation to any security (whether or not so
deposited or transferred) as the Trustees shall deem proper, and to
agree to pay, and to pay, such portion of the expenses and compensation
of such committee, depositary or trustee as the Trustees shall deem
proper;
(i) To compromise, arbitrate or otherwise adjust claims in
favor of or against the Trust on any matter in controversy, including
but not limited to claims for taxes;
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(j) To enter into joint ventures, general or limited
partnerships, limited liability companies, and any other combinations
or associations;
(k) To borrow funds;
(l) To endorse or guarantee the payment of any notes or other
obligations of any person; to make contracts of guaranty or suretyship,
or otherwise assume liability for payment thereof; and to mortgage and
pledge the Trust property or any part thereof to secure any of or all
of such obligations;
(m) To purchase and pay for entirely out of Trust property
such insurance as they may deem necessary or appropriate for the
conduct of the business of the Trust, including, without limitation,
insurance policies insuring the assets of the Trust and payment of
distributions and principal on its portfolio investments, and insurance
policies insuring the Shareholders, Trustees, officers, employees,
agents, investment advisers, subadvisers or managers, principal
underwriters or independent contractors of the Trust individually
against all claims and liabilities of every nature arising by reason of
holding, being or having held any such office or position, or by reason
of any action alleged to have been taken or omitted by any such person
as Shareholder, Trustee, officer, employee, agent, investment adviser,
subadviser or manager, principal underwriter or independent contractor,
including any action taken or omitted that may be determined to
constitute negligence, whether or not the Trust would have the power to
indemnify such person against such liability;
(n) To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry out
pension, profit-sharing, share bonus, share purchase, savings, thrift
and other retirement, incentive and benefit plans, trusts and
provisions, including the purchasing of life insurance and annuity
contracts as a means of providing such retirement and other benefits,
for any or all of the Trustees, officers, employees and agents of the
Trust;
(o) To purchase, redeem or otherwise acquire Shares; and
(p) To engage in any other lawful act or activity in which
business corporations organized under the laws of The Commonwealth of
Massachusetts may engage.
The foregoing enumeration of the powers and authority of the Trustees
shall be read as broadly and liberally as possible, it being the intent of the
foregoing to in no way limit the Trustees' powers and authority.
The Trustees shall not in any way be bound or limited by any present or
future law or custom in regard to investments by trustees. Except as otherwise
provided herein or from time to time in the Bylaws, any action to be taken by
the Trustees may be taken by a majority of the Trustees present at a meeting of
the Trustees (a quorum being present), within or without
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Massachusetts. Except as otherwise provided herein or from time to time in the
Bylaws, any action to be taken by the Trustees may be taken at a meeting held by
means of a conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other at the same
time and participation by such means shall constitute presence in person at a
meeting, or by written consents of a majority of the Trustees then in office (or
such greater number as may be required by this Declaration, the Bylaws or
applicable law).
Payment of Expenses by the Trust
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Section 6. The Trustees are authorized to pay, or to cause to be paid
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out of the principal or income of the Trust, or partly out of principal and
partly out of income, as they deem fair, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the Trust, or in connection
with the management thereof, including, but not limited to, the Trustees'
compensation and such expenses and charges for the services of the Trust's
officers, employees, investment adviser, subadviser or manager, principal
underwriter, auditor, counsel, custodian, transfer agent, shareholder servicing
agent, and such other agents or independent contractors and such other expenses
and charges as the Trustees may deem necessary or proper to incur.
Ownership of Assets of the Trust
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Section 7. Title to all of the assets of the Trust and each series and
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class of Shares shall at all times be considered as vested in the Trustees.
Advisory, Management and Distribution
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Section 8. The Trustees may, at any time and from time to time,
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contract for exclusive or nonexclusive advisory and/or management services with
any corporation, trust, association or other organization (the "Manager"), every
such contract to comply with such requirements and restrictions as may be set
forth in the Bylaws; and any such contract may provide for one or more
subadvisers or other agents who shall perform all or part of the obligations of
the Manager under such contract and contain such other terms interpretive of or
in addition to said requirements and restrictions as the Trustees may determine,
including, without limitation, authority to determine from time to time what
investments shall be purchased, held, sold, or exchanged and what portion, if
any, of the assets of the Trust shall be held uninvested and to make changes in
the Trust's investments. The Trustees may also, at any time and from time to
time, contract with the Manager or any other corporation, trust, association or
other organization, appointing it exclusive or nonexclusive distributor or
principal underwriter for the Shares, every such contract to comply with such
requirements and restrictions as may be set forth in the Bylaws; and any such
contract may contain such other terms interpretive of or in addition to said
requirements and restrictions as the Trustees may determine.
The fact that:
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(i) any of the Shareholders, Trustees or officers of
the Trust is a shareholder, director, officer, partner,
trustee, employee, manager, adviser, subadviser, principal
underwriter or distributor or agent of or for any corporation,
trust, association or other organization, or of or for any
parent or affiliate of any organization, with which an
advisory, subadvisory or management contract, or principal
underwriter's or distributor's contract or transfer,
shareholder servicing or other agency contract may have been
or may hereafter be made or that any such organization, or any
parent or affiliate thereof, is a Shareholder or has an
interest in the Trust, or that
(ii) any corporation, trust, association or other
organization with which an advisory, subadvisory or management
contract or principal underwriter's or distributor's contract
or transfer, shareholder servicing or other agency contract
may have been or may hereafter be made also has an advisory,
subadvisory or management contract, or principal underwriter's
or distributor's contract or transfer, shareholder servicing
or other agency contract with one or more other corporations,
trusts, associations or other organizations, or has other
business or interests,
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same or create any liability or accountability to the Trust or its Shareholders.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
General
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Section 1. Except as otherwise provided in this Article V or elsewhere
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in this Declaration, Shareholders shall have such power to vote as is provided
for in, and shall and may hold meetings and take actions pursuant to, the
provisions of the Bylaws.
Voting Powers as to Certain Transactions
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Section 2.
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(a) Except as otherwise provided in paragraph (b) of this Section 2,
the affirmative vote or consent of at least seventy-five percent (75%) of the
Trustees of the Trust and at least seventy-five percent (75%) of the Shares
outstanding and entitled to vote thereon shall be necessary to authorize any of
the following actions:
(i) the merger or consolidation or share exchange of the Trust
or any series or class of Shares with or into any other person
or company (including, without limitation, a partnership,
corporation, joint venture, business trust, common law
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trust or any other business organization) or of any such person or
company with or into the Trust or any series or class of Shares;
(ii) the issuance or transfer by the Trust or any series or class of
Shares of any securities issued by the Trust or such series or class
to any other person or entity for cash, securities or other property
(or combination thereof), excluding (i) sales of any securities of the
Trust or a series or class in connection with a public offering
thereof and (ii) issuance of securities of the Trust or a series or
class pursuant to a dividend reinvestment plan adopted by the
Trustees;
(iii) a sale, lease, exchange, mortgage, pledge, transfer or other
disposition by the Trust or any series or class of Shares (in one or a
series of transactions in any twelve-month period) to or with any
person of any assets of the Trust or such series or class having an
aggregate fair market value of $1,000,000 or more, except for
transactions in securities effected by the Trust or a series or class
in the ordinary course of business;
(iv) any Shareholder proposal as to specific investment decisions
made or to be made with respect to the assets of the Trust or a series
or class of Shares.
(b) Notwithstanding anything to the contrary in paragraph (a) of this
Section 2, so long as each action is approved by both a majority of the entire
Board of Trustees and seventy-five percent (75%) of the Continuing Trustees, and
so long as all other conditions and requirements, if any, provided for in the
Bylaws and applicable law have been satisfied, then no Shareholder vote or
consent shall be necessary or required to approve any of the actions listed in
paragraphs (a)(i), (a)(ii), (a)(iii) or (a)(iv) of this Section 2, except to the
extent such Shareholder vote or consent is required by the 1940 Act or other
applicable law.
Conversion to Open-End Company
------------------------------
Section 3. Notwithstanding any other provisions in this Declaration or the
---------
Bylaws, the conversion of the Trust or any series of Shares from a "closed-end
company" to an "open-end company," as those terms are defined in Sections
5(a)(2) and 5(a)(1), respectively, of the 1940 Act (as in effect on the date of
this Declaration), together with any necessary amendments to this Declaration to
permit such a conversion, shall require the affirmative vote or consent of at
least seventy-five percent (75%) of each class of Shares outstanding and
entitled to vote on the matter, unless a majority of the Trustees and
seventy-five percent (75%) of the Continuing Trustees entitled to vote on the
matter approve such conversion and related actions. In the event of such
approval by the Trustees and the Continuing Trustees as referred to in the
preceding sentence, the 1940 Act shall govern whether and to what extent a vote
or consent of Shares shall be required to approve such conversion and related
actions. Any affirmative vote or consent required under this Section 3 shall be
in addition to the vote or consent of the Shareholders otherwise required by law
or by any agreement between the Trust and any national securities exchange.
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ARTICLE VI
DISTRIBUTIONS AND DETERMINATION OF NET ASSET VALUE
Distributions
-------------
Section 1. The Trustees may each year, or more frequently if they so
---------
desire, but need not, distribute to the Shareholders of any or all classes or
series of Shares such income and gains, accrued or realized, as the Trustees may
determine, after providing for actual and accrued expenses and liabilities
(including such reserves as the Trustees may establish) determined in accordance
with good accounting practices and subject to the preferences, special or
relative rights or privileges of the various classes or series of Shares. The
Trustees shall have full discretion to determine which items shall be treated as
income and which items as capital and their determination shall be binding upon
the Shareholders. Distributions of income for each year or other period, if any
be made, may be made in one or more payments, which shall be in Shares, in cash
or otherwise and on a date or dates and as of a record date or dates determined
by the Trustees. At any time and from time to time in their discretion, the
Trustees may distribute to the Shareholders as of a record date or dates
determined by the Trustees, in Shares, in cash or otherwise, all or part of any
gains realized on the sale or disposition of property or otherwise, or all or
part of any other principal of the Trust. Each distribution pursuant to this
Section 1 to the Shareholders of a particular class or series shall be made
ratably according to the number of Shares of such class or series held by the
several Shareholders on the applicable record date thereof, provided that no
distribution need be made on Shares purchased pursuant to orders received, or
for which payment is made, after such time or times as the Trustees may
determine. Any such distribution paid in Shares will be paid at the net asset
value thereof as determined in accordance with Section 2 of this Article VI, or
at such other value as may be specified by the Bylaws or as the Trustees may
from time to time determine, subject to applicable laws and regulations then in
effect.
Any other provisions of this Declaration or the Bylaws notwithstanding, the
Trustees may not distribute to the Shareholders (in one or a series of
distributions) during any twelve-month period any property (in cash, Shares or
otherwise) with an aggregate fair market value in excess of 110% of the income
and gains (accrued or realized) of the Trust during such twelve-month period
(the "Distribution Limit"); provided, however, a distribution in excess of the
Distribution Limit may be made if such distribution shall have been approved by
the vote or consent of a majority of the Trustees and seventy-five percent (75%)
of the Continuing Trustees.
Determination of Net Asset Value
--------------------------------
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Section 2. The net asset value per share of each class and each series of
---------
Shares of the Trust shall be determined in accordance with the 1940 Act and any
related procedures adopted by the Trustees from time to time. Determinations
made under and pursuant to this Section 2 in good faith and in accordance with
the provisions of the 1940 Act shall be binding on all parties concerned.
ARTICLE VII
COMPENSATION AND LIMITATION
OF LIABILITY OF TRUSTEES
Compensation
------------
Section 1. The Trustees as such shall be entitled to reasonable
---------
compensation from the Trust; they may fix the amount of their compensation.
Nothing herein shall in any way prevent the employment of any Trustee for
advisory, management, legal, accounting, investment banking, underwriting,
brokerage or other services and payment for the same by the Trust.
Limitation of Liability
-----------------------
Section 2. The Trustees shall not be responsible or liable in any event for
---------
any neglect or wrongdoing of any officer, agent, employee, adviser, subadviser,
manager or principal underwriter of the Trust, nor shall any Trustee be
responsible for the act or omission of any other Trustee, but nothing herein
contained shall protect any Trustee against any liability to which he or she
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 or
her office.
Every note, bond, contract, instrument, certificate, Share or undertaking
and every other act or thing whatsoever executed or done by or on behalf of the
Trust or the Trustees or any of them in connection with the Trust shall be
conclusively deemed to have been executed or done only in or with respect to
their or his or her capacity as Trustees or Trustee, and such Trustees or
Trustee shall not be personally liable thereon.
ARTICLE VIII
INDEMNIFICATION
Trustees, Officers etc.
-----------------------
Section 1. The Trust shall indemnify each of its Trustees and officers
---------
(including persons who serve at the Trust's request as directors, officers or
trustees of another organization in which the Trust has any interest as a
shareholder, creditor or otherwise) (hereinafter referred to as a "Covered
Person") against all liabilities and expenses, including but not limited to
amounts paid in satisfaction of judgments, in compromise or as fines and
penalties, and counsel fees
-15-
reasonably incurred by any Covered Person in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or criminal,
before any court or administrative or legislative body, in which such Covered
Person may be or may have been involved as a party or otherwise or with which
such person may be or may have been threatened, while in office or thereafter,
by reason of being or having been such a Covered Person, except with respect to
any matter as to which such Covered Person shall have been finally adjudicated
in a decision on the merits in any such action, suit or other proceeding (a) not
to have acted in good faith in the reasonable belief that such Covered Person's
action was in the best interests of the Trust or (b) 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 such
Covered Person's office. Expenses, including counsel fees so incurred by any
such Covered Person (but excluding amounts paid in satisfaction of judgments, in
compromise or as fines or penalties), shall be paid from time to time by the
Trust in advance of the final disposition of any such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such Covered Person to repay
amounts so paid to the Trust if it is ultimately determined that indemnification
of such expenses is not authorized under this Article, provided, that (a) such
-------- ----
Covered Person shall provide security for his or her undertaking, (b) the Trust
shall be insured against losses arising by reason of such Covered Person's
failure to fulfill his or her undertaking, or (c) a majority of the Trustees who
are disinterested persons and who are not Interested Persons of the Trust
(provided that a majority of such Trustees then in office act on the matter), or
independent legal counsel in a written opinion shall determine, based on a
review of readily available facts (but not a full trial-type inquiry), that
there is reason to believe such Covered Person ultimately will be entitled to
indemnification.
Compromise Payment
------------------
Section 2. As to any matter disposed of (whether by a compromise payment,
---------
pursuant to a consent decree or otherwise) without an adjudication in a decision
on the merits by a court, or by any other body before which the proceeding was
brought, that such Covered Person either (a) did not act in good faith in the
reasonable belief that such Covered Person's action was in the best interests of
the Trust or (b) is 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 such Covered Person's office, indemnification shall
be provided if (x) approved as in the best interest of the Trust, after notice
that it involves such indemnification, by at least a majority of the Trustees
who are disinterested persons and are not Interested Persons of the Trust
(provided that a majority of such Trustees then in office act on the matter),
upon a determination, based upon a review of readily available facts (but not a
full trial-type inquiry) that such Covered Person acted in good faith in the
reasonable belief that such Covered Person's action was in the best interests of
the Trust and is not 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 such Covered Person's office, or (y) there has
been obtained an opinion in writing of independent legal counsel, based upon a
review of readily available facts (but not a full trial-type inquiry), to the
effect that such Covered Person appears to have acted in good faith in the
reasonable belief that such Covered Person's action was in the best interests of
-16-
the Trust and that such indemnification would not protect such Covered Person
against any liability to the Trust to which such Covered Person 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 or her office.
Any approval pursuant to this Section 2 shall not prevent the recovery from any
Covered Person of any amount paid to such Covered Person in accordance with this
Section 2 as indemnification if such Covered Person is subsequently adjudicated
by a court of competent jurisdiction not to have acted in good faith in the
reasonable belief that such Covered Person's action was in the best interests of
the Trust or to have been 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 such Covered Person's office.
Rebuttable Presumption
----------------------
Section 3. For purposes of the determination or opinion referred to in
---------
clause (c) of Section 1 of this Article VIII or clauses (x) or (y) of Section 2
of this Article VIII, the majority of Trustees who are disinterested persons and
who are not Interested Persons of the Trust acting on the matter or independent
legal counsel, as the case may be, shall be entitled to rely upon a rebuttable
presumption that the Covered Person has not engaged in willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of such Covered Person's office.
Indemnification Not Exclusive
-----------------------------
Section 4. The right of indemnification hereby provided shall not be
---------
exclusive of or affect any other rights to which any such Covered Person may be
entitled. As used in this Article VIII, the term "Covered Person" shall include
such person's heirs, executors and administrators, and a "disinterested person"
is a person against whom none of the actions, suits or other proceedings in
question or another action, suit or other proceeding on the same or similar
grounds is then or has been pending. Nothing contained in this Article VIII
shall affect any rights to indemnification to which personnel of the Trust,
other than Trustees and officers, and other persons may be entitled by contract
or otherwise under law, nor the power of the Trust to purchase and maintain
liability insurance on behalf of such person; provided, however, that the Trust
-------- -------
shall not purchase or maintain any such liability insurance in contravention of
the 1940 Act or other applicable law.
Shareholders
------------
Section 5. In case any Shareholder or former Shareholder shall be held to
---------
be personally liable solely by reason of his or her being or having been a
Shareholder and not because of his or her acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his or her 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 to
be held harmless from and indemnified against all loss and expense arising from
such liability.
-17-
ARTICLE IX
MISCELLANEOUS
Trustees, Shareholders etc. Not Personally Liable; Notice
---------------------------------------------------------
Section 1. All persons extending credit to, contracting with or having any
---------
claim against the Trust or a particular series or class of Shares shall look
only to the assets of the Trust or the assets of that particular series or class
of Shares for payment under such credit, contract or claim; and neither the
Shareholders nor the Trustees, nor any of the Trust's officers, employees or
agents, whether past, present or future, shall be personally liable therefor.
Nothing in this Declaration shall protect any Trustee against any liability to
which such 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.
Every note, bond, contract, instrument, certificate or undertaking made or
issued by the Trustees or by any officer or officers shall give notice that this
Declaration is on file with the Secretary of State of The Commonwealth of
Massachusetts and shall recite that the same was executed or made by or on
behalf of the Trust or by them as Trustee or Trustees or as officer or officers
and not individually and that the obligations of such instrument are not binding
upon any of them or the Shareholders individually but are binding only upon the
assets and property of the Trust, and may contain such further recital as he or
she or they may deem appropriate, but the omission thereof shall not operate to
bind any Trustee or Trustees or officer or officers or Shareholder or
Shareholders individually.
Trustees and Officers Good Faith Action, Expert Advice, No Bond or Surety
-------------------------------------------------------------------------
Section 2. The exercise by the Trustees of their powers and discretions
---------
hereunder shall be binding upon everyone interested. A Trustee or officer shall
be liable for his or her own willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the office of
Trustee or officer, and for nothing else, and shall not be liable for errors of
judgment or mistakes of fact or law. The Trustees or officers may take advice of
counsel or other experts with respect to the meaning and operation of this
Declaration, and shall be under no liability for any act or omission in
accordance with such advice or for failing to follow such advice. The Trustees
and officers shall not be required to give any bond as such, nor any surety if a
bond is required.
Liability of Third Persons Dealing with Trustees
------------------------------------------------
Section 3. No person dealing with the Trustees shall be bound to make any
---------
inquiry concerning the validity of any transaction made or to be made by the
Trustees or to see to the application of any payments made or property
transferred to the Trust or upon its order.
Duration and Termination of Trust
---------------------------------
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Section 4. Unless terminated as provided herein, the Trust shall
---------
continue without limitation of time. Subject to the voting powers of one or more
classes or series of Shares as set forth in the Bylaws, the Trust may be
terminated at any time (i) by vote or consent of Shareholders holding at least
seventy-five percent (75%) of the Shares entitled to vote or (ii) by vote or
consent of majority of the entire Board of Trustees and seventy-five percent
(75%) of the Continuing Trustees upon written notice to the Shareholders. Any
series or class of Shares may be terminated at any time (x) by vote or consent
of Shareholders holding at least seventy-five percent (75%) of the Shares of
such series of class entitled to vote or (y) by vote or consent of majority of
the entire Board of Trustees and seventy-five percent (75%) of the Continuing
Trustees upon written notice to the Shareholders of such series or class. For
the avoidance of any doubt and notwithstanding anything to the contrary in this
Declaration, Shareholders shall have no separate right to vote with respect to
the termination of the Trust or a series of class of Shares if the Trustees
(including the Continuing Trustees) exercise their right to terminate the Trust
or such series or class pursuant to clauses (ii) and (y) of this Section 4.
Upon termination of the Trust or of any one or more series or classes
of Shares, after paying or otherwise providing for all charges, taxes, expenses
and liabilities, whether due or accrued or anticipated, of the Trust or of the
particular series or class, as may be determined by the Trustees, the Trust
shall in accordance with such procedures as the Trustees consider appropriate
reduce the remaining assets to distributable form in cash or shares or other
property, or any combination thereof, and distribute the proceeds to the
Shareholders of the series or class(es) involved, ratably according to the
number of Shares of such series or class held by the several Shareholders on the
date of termination, except to the extent otherwise required or permitted by the
preferences and special or relative rights or privileges of any classes or
series of Shares. For these purposes, "ratably" shall refer to the proceeds
themselves and shall not prevent different Shareholders from receiving different
forms of property.
Filing of Copies, References, Headings
--------------------------------------
Section 5. The original or a copy of this instrument and of each
---------
amendment 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 amendment
hereto shall be filed by the Trust with the Secretary of State of The
Commonwealth of Massachusetts and with the Boston City Clerk (or the Clerk of
any city or town within the Commonwealth), if required, 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 of the Trust as
to whether or not any such amendments 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 of the Trust to be a copy
of this instrument or of any such amendments. In this instrument and in any such
amendment, 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 amendments. Headings are placed herein for
convenience of reference only and shall not be taken as a part
-19-
hereof or control or affect the meaning, construction or effect of this
instrument. This instrument may be executed in any number of counterparts, each
of which shall be deemed an original.
Applicable Law
--------------
Section 6. This Declaration is made in The 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.
Amendments
----------
Section 7. (a) Except to the extent that the Bylaws or applicable law
---------
may require a higher vote or the separate vote of one or more classes or series
of Shares, and except as provided in paragraph (b) of this Section 7, this
Declaration may be amended at any time by an instrument in writing signed by a
majority of the then Trustees (1) when authorized so to do by a vote or consent
of Shareholders holding a majority of the Shares entitled to vote or (2) without
Shareholder approval as may be necessary or desirable in order to authorize one
or more classes or series of Shares as in Section 1 of Article III. Amendments
having the purpose of changing the name of the Trust or of supplying any
omission, curing any ambiguity or curing, correcting or supplementing any
defective or inconsistent provision contained herein shall not require
authorization by Shareholder vote.
(b) Except to the extent that the Bylaws or applicable law may require
a higher vote or the separate vote of one or more classes or series of Shares,
no amendment may be made under this Section 7 which shall amend, alter, change
or repeal any of the provisions of Article I, Section 2; Article III, Sections
4, 5, 6 or 7; Article IV, Sections 1, 2, 3 or 4; each Section of Article V;
Article VI, Section 1; Article VII, Section 2; each Section of Article VIII; or
this Article IX, Sections 1, 2, 3, 4, 7(b) or 7(c) unless, in each case, the
amendment effecting such amendment, alteration, change or repeal shall be
effected by an instrument in writing signed by a majority of the then Trustees
and seventy-five percent (75%) of the Continuing Trustees and shall receive the
affirmative vote or consent of Shareholders holding a majority of the Shares
entitled to vote; provided, however, that such affirmative vote or consent shall
-------- -------
be in addition to the vote or consent of the Shareholders otherwise required by
applicable law or by the terms of any agreement between the Trust and any
national securities exchange.
(c) Except to the extent that the Bylaws or applicable law requires a
vote or consent of Shareholders, the Board of Trustees shall have the sole power
and authority to adopt, amend, alter, change or repeal any Bylaw of the Trust,
if the resolution or writing adopting, amending, altering, changing or repealing
any such Bylaw is approved or signed by a majority of the Board of Trustees;
provided, however, that any amendment, alteration, change or repeal of Section
10 of the Bylaws, or any other Section or provision of the Bylaws determined
from time to time to
-20-
be subject to the supermajority provision contained in this clause by a majority
of the Trustees and seventy-five percent (75%) of the Continuing Trustees, shall
require the approval of a majority of the Board of Trustees and seventy-five
percent (75%) of the Continuing Trustees.
-21-
IN WITNESS HEREOF, all of the Trustees as aforesaid do hereto set their
hands this 5th day of February, 2002.
--------------------------------
Xxxxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxx
--------------------------------
Xxxxx X. XxXxxxxx
--------------------------------
Xxxxxxx X. XxXxxx
--------------------------------
Xxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. X. Xxxxx
--------------------------------
Xxxxx X. Xxxxxxx
-22-
STATE OF CALIFORNIA )
)ss.
COUNTY OF ____________ )
Then personally appeared before me the foregoing Trustees, who
acknowledge the foregoing instrument to be his or her free act and deed.
_________________________________
Notary Public
My commission expires on:
February 5, 2002
The principal address of the Trust is
000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000.
The name and address of the resident
agent of the Trust in the Commonwealth
of Massachusetts is Corporation
Service Company, 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000.
The address of the Trustees is c/o the
Trust, 000 Xxxx Xxxxxxxx Xxxxxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000.
-23-
