PIONEER HIGH INCOME TRUST
AGREEMENT AND
DECLARATION OF TRUST
This AGREEMENT AND DECLARATION OF TRUST is made on January 30, 2002 by
the undersigned (together with all other persons from time to time duly elected,
qualified and serving as Trustees in accordance with the provisions of Article
II hereof, the "Trustees");
NOW, THEREFORE, the Trustees declare that all money and property
contributed to the Trust shall be held and managed in trust pursuant to this
Agreement and Declaration of Trust.
ARTICLE I
NAME AND DEFINITIONS
Section 1. NAME. The name of the Trust created by this Agreement and
Declaration of Trust is "Pioneer High Income Trust."
Section 2. DEFINITIONS. Unless otherwise provided or required by the context:
(a) "ADMINISTRATOR" means the party, other than the Trust, to the contract
described in Article III, Section 3 hereof.
(b) "BY-LAWS" means the By-laws of the Trust adopted by the Trustees, as amended
from time to time, which By-laws are expressly herein incorporated by reference
as part of the "governing instrument" within the meaning of the Delaware Act.
(c) "CLASS" means the class of Shares of a Series established pursuant to
Article V.
(d) "COMMISSION," "INTERESTED PERSON" and "PRINCIPAL UNDERWRITER" have the
meanings provided in the 1940 Act. Except as such term may be otherwise defined
by the Trustees in conjunction with the establishment of any Series of Shares,
the term "VOTE OF A MAJORITY OF THE SHARES OUTSTANDING AND ENTITLED TO VOTE"
shall have the same meaning as is assigned to the term "VOTE OF A MAJORITY OF
THE OUTSTANDING VOTING SECURITIES" in the 1940 Act.
(e) "COVERED PERSON" means a person so defined in Article IV, Section 2.
(f) "CUSTODIAN" means any Person other than the Trust who has custody of any
Trust Property as required by Section 17(f) of the 1940 Act, but does not
include a system for the central handling of securities described in said
Section 17(f).
(g) "DECLARATION" shall mean this Agreement and Declaration of Trust, as amended
or restated from time to time. Reference in this Declaration of Trust to
"Declaration," "hereof," "herein," and "hereunder" shall be deemed to refer to
this Declaration rather than exclusively to the article or section in which such
words appear.
(h) "DELAWARE ACT" means Chapter 38 of Title 12 of the Delaware Code entitled
"Treatment of Delaware Business Trusts," as amended from time to time.
(i) "DISTRIBUTOR" means the party or parties, other than the Trust, to the
contract described in Article III, Section 1 hereof.
(j) "HIS" shall include the feminine and neuter, as well as the masculine,
genders.
(k) "INVESTMENT ADVISER" means the party, other than the Trust, to the contract
described in Article III, Section 2 hereof.
(l) "NET ASSET VALUE" means the net asset value of each Series of the Trust,
determined as provided in Article VI, Section 3.
(m) "PERSON" means and includes individuals, corporations, partnerships, trusts,
associations, joint ventures, estates and other entities, and governments and
agencies and political subdivisions, thereof, whether domestic or foreign.
(n) "SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
(o) "SERIES" means a series of Shares established pursuant to Article V.
(p) "SHAREHOLDER" means a record owner of Outstanding Shares;
(q) "SHARES" means the transferable units of interest into which the beneficial
interest of each Series or Class is divided from time to time (including whole
Shares and fractions of Shares). In addition, Shares shall also mean preferred
shares or preferred units of beneficial interest which may be issued from time
to time. "Outstanding Shares" means Shares shown in the books of the Trust or
its transfer agent as then issued and outstanding, but does not include Shares
which have been repurchased or redeemed by the Trust and which are held in the
treasury of the Trust.
(r) "TRANSFER AGENT" means any Person other than the Trust who maintains the
Shareholder records of the Trust, such as the list of Shareholders, the number
of Shares credited to each account, and the like.
(s) "TRUST" means Pioneer High Income Trust established hereby, and reference to
the Trust, when applicable to one or more Series, refers to that Series.
(t) "TRUSTEE" means the person who has signed this Declaration of Trust, so long
as he shall continue in office in accordance with the terms hereof, and all
other persons who may from time to time be duly qualified and serving as
Trustees in accordance with Article II, in all cases in their capacities as
Trustees hereunder.
(u) "TRUST PROPERTY" means any and all property, real or personal, tangible or
intangible, which is owned or held by or for the Trust or any Series or the
Trustees on behalf of the Trust or any Series.
(v) The "1940 ACT" means the Investment Company Act of 1940, as amended from
time to time, including the rules, regulations and interpretive provisions of
the Securities and Exchange Commission thereunder.
ARTICLE II
THE TRUSTEES
Section 1. MANAGEMENT OF THE TRUST. The business and affairs of the Trust shall
be managed by or under the direction of the Trustees, and they shall have all
powers necessary or desirable to carry out that responsibility. The Trustees may
execute all instruments and take all action they deem necessary or desirable to
promote the interests of the Trust. Any determination made by the Trustees in
good faith as to what is in the interests of the Trust shall be conclusive. In
construing the provisions of this Declaration, the presumption shall be in favor
of a grant of power to the Trustees.
Section 2. POWERS. The Trustees in all instances shall act as principals, free
of the control of the Shareholders. The Trustees shall have full power and
authority to take or refrain from taking any action and to execute any contracts
and instruments that they may consider necessary or desirable in the management
of the Trust. The Trustees shall not in any way be bound or limited by current
or future laws or customs applicable to trust investments, but shall have full
power and authority to make any investments which they, in their sole
discretion, deem proper to accomplish the purposes of the Trust. The Trustees
may exercise all of their powers without recourse to any court or other
authority. Subject to any applicable limitation herein or in the By-laws or
resolutions of the Trust, the Trustees shall have power and authority, without
limitation:
(a) To operate as and carry on the business of an investment company, and
exercise all the powers necessary and appropriate to the conduct of such
operations.
(b) To invest in, hold for investment, or reinvest in, cash; securities of any
type, including, but not limited to, common, preferred and preference stocks;
warrants; subscription rights; profit-sharing interests or participations and
all other contracts for or evidence of equity interests; bonds, debentures,
bills, time notes and all other evidences of indebtedness; negotiable or
non-negotiable instruments; government securities, including securities of any
state, municipality or other political subdivision thereof, or any governmental
or quasi-governmental agency or instrumentality; and money market instruments
including bank certificates of deposit, finance paper, commercial paper,
bankers' acceptances and all kinds of repurchase agreements, of any corporation,
company, trust, association, firm or other business organization however
established, and of any country, state, municipality or other political
subdivision, or any governmental or quasi-governmental agency or
instrumentality; or any other security, property or instrument in which the
Trust or any of its Series shall be authorized to invest.
(c) To acquire (by purchase, subscription or otherwise), to hold, to trade in
and deal in, to acquire any rights or options to purchase or sell, to sell or
otherwise dispose of, to lend and to pledge any such securities, to enter into
repurchase agreements, reverse repurchase agreements, firm commitment
agreements, forward foreign currency exchange contracts, interest rate mortgage
or currency swaps and interest rate caps, floors and collars, to purchase and
sell options on securities, securities indices, currency, swaps and other
financial assets, futures contracts and options on futures contracts of all
descriptions and to engage in all types of hedging, risk-management or income
enhancement transactions.
(d) To exercise all rights, powers and privileges of ownership or interest in
all securities, repurchase agreements and other assets included in the Trust
Property, including the right to vote thereon and otherwise act with respect
thereto and to do all acts for the preservation, protection, improvement and
enhancement in value of all such securities, repurchase agreements and other
assets.
(e) To acquire (by purchase, lease or otherwise) and to hold, use, maintain,
develop and dispose of (by sale or otherwise) any property, real or personal,
including cash or foreign currency, and any interest therein.
(f) To borrow money or other property in the name of the Trust exclusively for
Trust purposes and in this connection issue notes or other evidence of
indebtedness; to secure borrowings by mortgaging, pledging or otherwise
subjecting as security the Trust Property; and to endorse, guarantee, or
undertake the performance of any obligation or engagement of any other Person
and to lend Trust Property.
(g) To aid by further investment any corporation, company, trust, association or
firm, any obligation of or interest in which is included in the Trust Property
or in the affairs of which the Trustees have any direct or indirect interest; to
do all acts and things designed to protect, preserve, improve or enhance the
value of such obligation or interest; and to guarantee or become surety on any
or all of the contracts, stocks, bonds, notes, debentures and other obligations
of any such corporation, company, trust, association or firm.
(h) To adopt By-laws not inconsistent with this Declaration providing for the
conduct of the business of the Trust and to amend and repeal them to the extent
such right is not reserved to the Shareholders.
(i) To elect and remove such officers and appoint and terminate such agents as
they deem appropriate.
(j) To employ as custodian of any assets of the Trust, subject to any provisions
herein or in the By-laws, one or more banks, trust companies or companies that
are members of a national securities exchange, or other entities permitted by
the Commission to serve as such.
(k) To retain one or more transfer agents and shareholder servicing agents, or
both.
(l) To provide for the distribution of Shares either through a Principal
Underwriter as provided herein or by the Trust itself, or both, or pursuant to a
distribution plan of any kind.
(m) To set record dates in the manner provided for herein or in the By-laws.
(n) To delegate such authority as they consider desirable to any officers of the
Trust and to any agent, independent contractor, manager, investment adviser,
custodian or underwriter.
(o) To hold any security or other property (i) in a form not indicating any
trust, whether in bearer, book entry, unregistered or other negotiable form, or
(ii) either in the Trust's or Trustees' own name or in the name of a custodian
or a nominee or nominees, subject to safeguards according to the usual practice
of business trusts or investment companies.
(p) To establish separate and distinct Series with separately defined investment
objectives and policies and distinct investment purposes, and with separate
Shares representing beneficial interests in such Series, and to establish
separate Classes, all in accordance with the provisions of Article V.
(q) To the full extent permitted by Section 3804 of the Delaware Act, to
allocate assets, liabilities and expenses of the Trust to a particular Series
and assets, liabilities and expenses to a particular Class or to apportion the
same between or among two or more Series or Classes, provided that any
liabilities or expenses incurred by a particular Series or Class shall be
payable solely out of the assets belonging to that Series or Class as provided
for in Article V, Section 4.
(r) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or concern whose securities are held
by the Trust; to consent to any contract, lease, mortgage, purchase, or sale of
property by such corporation or concern; and to pay calls or subscriptions with
respect to any security held in the Trust.
(s) To compromise, arbitrate, or otherwise adjust claims in favor of or against
the Trust or any matter in controversy including, but not limited to, claims for
taxes.
(t) To make distributions of income, capital gains, returns of capital (if any)
and redemption proceeds to Shareholders in the manner hereinafter provided for.
(u) To establish committees for such purposes, with such membership, and with
such responsibilities as the Trustees may consider proper, including a committee
consisting of fewer than all of the Trustees then in office, which may act for
and bind the Trustees and the Trust with respect to the institution,
prosecution, dismissal, settlement, review or investigation of any legal action,
suit or proceeding, pending or threatened.
(v) To issue, sell, repurchase, redeem, cancel, retire, acquire, hold, resell,
reissue, dispose of and otherwise deal in Shares; to establish terms and
conditions regarding the issuance, sale, repurchase, redemption, cancellation,
retirement, acquisition, holding, resale, reissuance, disposition of or dealing
in Shares; and, subject to Articles V and VI, to apply to any such repurchase,
redemption, retirement, cancellation or acquisition of Shares any funds or
property of the Trust or of the particular Series with respect to which such
Shares are issued.
(w) To carry on any other business in connection with or incidental to any of
the foregoing powers, to do everything necessary or desirable to accomplish any
purpose or to further any of the foregoing powers, and to take every other
action incidental to the foregoing business or purposes, objects or powers.
(x) To invest part or all of the Trust Property (or part or all of the assets of
any Series), or to dispose of part or all of the Trust Property (or part or all
of the assets of any Series) and invest the proceeds of such disposition, in
securities issued by one or more other investment companies registered under the
1940 Act all without any requirement of approval by Shareholders. Any such other
investment company may (but need not) be a trust (formed under the laws of the
State of New York or of any other state) which is classified as a partnership
for federal income tax purposes.
(y) To sell or exchange any or all of the assets of the Trust, subject to
Article IX, Sections 4, 6 and 7.
(z) To enter into joint ventures, partnerships and other combinations and
associations.
(aa) 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.
(bb) To purchase and pay for entirely out of Trust Property such insurance as
the Trustees may deem necessary or appropriate for the conduct of the business,
including, without limitation, insurance policies insuring the assets of the
Trust or payment of distributions and principal on its portfolio investments,
and, subject to applicable law and any restrictions set forth in the By-laws,
insurance policies insuring the Shareholders, Trustees, officers, employees,
agents, investment advisers, Principal Underwriters, or independent contractors
of the Trust, individually, against all claims and liabilities of every nature
arising by reason of holding Shares, 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 Trustee, officer, employee, agent, investment
adviser, 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 liability.
(cc) To adopt, establish and carry out pension, profit-sharing, share bonus,
share purchase, savings, thrift and other retirement, incentive and benefit
plans and trusts, 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.
(dd) To enter into contracts of any kind and description.
(ee) To interpret the investment policies, practices or limitations of any
Series or Class.
(ff) To guarantee indebtedness and contractual obligations of others.
The clauses above shall be construed as objects and powers, and the
enumeration of specific powers shall not limit in any way the general powers of
the Trustees. Any action by one or more of the Trustees in their capacity as
such hereunder shall be deemed an action on behalf of the Trust or the
applicable Series, and not an action in an individual capacity. No one dealing
with the Trustees shall be under any obligation to make any inquiry concerning
the authority of the Trustees, or to see to the application of any payments made
or property transferred to the Trustees or upon their order. In construing this
Declaration, the presumption shall be in favor of a grant of power to the
Trustees.
Section 3. CERTAIN TRANSACTIONS. Except as prohibited by applicable law, the
Trustees may, on behalf of the Trust, buy any securities from or sell any
securities to, or lend any assets of the Trust to, any Trustee or officer of the
Trust or any firm of which any such Trustee or officer is a member acting as
principal, or have any such dealings with any investment adviser, administrator,
distributor or transfer agent for the Trust or with any Interested Person of
such person. The Trust may employ any such person or entity in which such person
is an Interested Person, as broker, legal counsel, registrar, investment
adviser, administrator, distributor, transfer agent, dividend disbursing agent,
custodian or in any other capacity upon customary terms.
Section 4. INITIAL TRUSTEE(S); ELECTION AND NUMBER OF TRUSTEES. The initial
Trustee(s) shall be the persons initially signing this Declaration. The number
of Trustees (other than the initial Trustees) shall be fixed from time to time
by a majority of the Trustees then in office; provided, that there shall be at
least one (1) Trustee and no more than fifteen (15).
Section 5. TERM OF OFFICE OF TRUSTEES; CLASSES.
(a) Subject to the voting rights established with respect to a particular Series
or Class, each Trustee shall hold office for life or until his successor is
elected or the Trust terminates. Notwithstanding the foregoing but subject to
the voting rights established with respect to a particular Series or Class, (1)
any Trustee may resign by delivering to the other Trustees or to any Trust
officer a written resignation effective upon such delivery or a later date
specified therein; (2) any Trustee may be removed with cause at any time by a
written instrument signed by at least three-quarters of the then Trustees,
specifying the effective date of removal; (3) any Trustee who requests to be
retired, or who is declared bankrupt or has become physically or mentally
incapacitated or is otherwise unable to serve, may be retired by a written
instrument signed by a majority of the other Trustees, specifying the effective
date of retirement; and (4) any Trustee may be removed, with or without cause,
by a vote of at least a majority of the then Trustees if such removal is
approved by the holders of at least three-quarters of the Outstanding Shares
entitled to vote with respect to the election of such Trustee and present in
person or by proxy at a meeting of the Shareholders called for such purpose.
(b) 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
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). The term of office of the 1st class shall expire on
the date of the 1st 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. The term of the 2nd class shall expire on
the date of the 2nd 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. The term of the 3rd class shall expire on
the date of the 3rd 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. 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 3rd 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.
Section 6. VACANCIES; APPOINTMENT OF TRUSTEES. Whenever a vacancy shall exist in
the Board of Trustees, regardless of the reason for such vacancy, the remaining
Trustees shall appoint any person as they determine in their sole discretion to
fill that vacancy, consistent with the limitations under the 1940 Act, provided,
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. Such
appointment shall be made by a written instrument signed by a majority of the
Trustees or by a resolution of the Trustees, duly adopted and recorded in the
records of the Trust, specifying the effective date of the appointment. The
Trustees may appoint a new Trustee as provided above in anticipation of a
vacancy expected to occur because of the retirement, resignation or removal of a
Trustee, or an increase in number of Trustees, provided that such appointment
shall become effective only at or after the expected vacancy occurs. As soon as
any such Trustee has accepted his appointment in writing, the trust estate shall
vest in the new Trustee, together with the continuing Trustees, without any
further act or conveyance, and he shall be deemed a Trustee hereunder. The
Trustees' power of appointment is subject to Section 16(a) of the 1940 Act.
Whenever a vacancy in the number of Trustees shall occur, until such vacancy is
filled as provided in this Article II, the Trustees in office, regardless of
their number, shall have all the powers granted to the Trustees and shall
discharge all the duties imposed upon the Trustees by the Declaration. The
death, declination to serve, resignation, retirement, removal or incapacity of
one or more Trustees, or all of them, shall not operate to annul the Trust or to
revoke any existing agency created pursuant to the terms of this Declaration of
Trust.
Section 7. TEMPORARY VACANCY OR ABSENCE. Whenever a vacancy in the Board of
Trustees shall occur, until such vacancy is filled, or while any Trustee is
absent from his domicile (unless that Trustee has made arrangements to be
informed about, and to participate in, the affairs of the Trust during such
absence), or is physically or mentally incapacitated, the remaining Trustees
shall have all the powers hereunder and their certificate as to such vacancy,
absence, or incapacity shall be conclusive. Any Trustee may, by power of
attorney, delegate his powers as Trustee for a period not exceeding six (6)
months at any one time to any other Trustee or Trustees.
Section 8. CHAIRMAN. The Trustees shall appoint one of their number to be
Chairman of the Board of Trustees. The Chairman shall preside at all meetings of
the Trustees, shall be responsible for the execution of policies established by
the Trustees and the administration of the Trust, and may be the chief
executive, financial and/or accounting officer of the Trust.
Section 9. ACTION BY THE TRUSTEES.
(a) Except as expressly provided in this Agreement, the Trustees shall act by
majority vote at a meeting duly called at which a quorum is present, including a
meeting held by conference telephone, teleconference or other electronic media
or communication equipment by means of which all persons participating in the
meeting can communicate with each other; or by written consent of a majority of
Trustees (or such greater number as may be required by applicable law) without a
meeting. A majority of the Trustees shall constitute a quorum at any meeting.
Meetings of the Trustees may be called orally or in writing by the President or
by any one of the Trustees. Notice of the time, date and place of all Trustees'
meetings shall be given to each Trustee as set forth in the By-laws; provided,
however, that no notice is required if the Trustees provide for regular or
stated meetings. Notice need not be given to any Trustee who attends the meeting
without objecting to the lack of notice or who signs a waiver of notice either
before or after the meeting. Except as expressly provided in this Agreement, the
Trustees by majority vote may delegate to any Trustee or Trustees or committee
authority to approve particular matters or take particular actions on behalf of
the Trust. Any written consent or waiver may be provided and delivered to the
Trust by facsimile or other similar electronic mechanism.
(b) A Trustee who with respect to the Trust is not an Interested Person shall be
deemed to be independent and disinterested when making any determinations or
taking any action as a Trustee, whether pursuant to the 1940 Act, the Delaware
Act or otherwise.
Section 10. OWNERSHIP OF TRUST PROPERTY. The Trust Property of the Trust and of
each Series shall be held separate and apart from any assets now or hereafter
held in any capacity other than as Trustee hereunder by the Trustees or any
successor Trustees. Legal title in and beneficial ownership of all of the assets
of the Trust shall at all times be considered as vested in the Trust, except
that the Trustees may cause legal title in and beneficial ownership of any Trust
Property to be held by, or in the name of one or more of the Trustees acting for
and on behalf of the Trust, or in the name of any person as nominee acting for
and on behalf of the Trust. No Shareholder shall be deemed to have a severable
ownership in any individual asset of the Trust or of any Series or any right of
partition or possession thereof, but each Shareholder shall have, as provided in
Article V, a proportionate undivided beneficial interest in the Trust or Series
or Class thereof represented by Shares. The Shares shall be personal property
giving only the rights specifically set forth in this Trust Instrument. The
Trust, or at the determination of the Trustees one or more of the Trustees or a
nominee acting for and on behalf of the Trust, shall be deemed to hold legal
title and beneficial ownership of any income earned on securities of the Trust
issued by any business entities formed, organized, or existing under the laws of
any jurisdiction, including the laws of any foreign country. Upon the
resignation or removal of a Trustee, or his otherwise ceasing to be a Trustee,
he shall execute and deliver such documents as the remaining Trustees shall
require for the purpose of conveying to the Trust or the remaining Trustees any
Trust Property held in the name of the resigning or removed Trustee. Upon the
incapacity or death of any Trustee, his legal representative shall execute and
deliver on his behalf such documents as the remaining Trustees shall require as
provided in the preceding sentence.
Section 11. EFFECT OF TRUSTEES NOT SERVING. The death, resignation, retirement,
removal, incapacity or inability or refusal to serve 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.
Section 12. TRUSTEES, ETC. AS SHAREHOLDERS. Subject to any restrictions in the
By-laws, any Trustee, officer, agent or independent contractor of the Trust may
acquire, own and dispose of Shares to the same extent as any other Shareholder;
the Trustees may issue and sell Shares to and buy Shares from any such person or
any firm or company in which such person is interested, subject only to any
general limitations herein.
Section 13. SERIES TRUSTEES. In connection with the establishment of one or more
Series or Classes, the Trustees establishing such Series or Class may appoint,
to the extent permitted by the Delaware Act, separate Trustees with respect to
such Series or Classes (the "Series Trustees"). Series Trustees may, but are not
required to, serve as Trustees of the Trust or any other Series or Class of the
Trust. The Series Trustees shall have, to the exclusion of any other Trustee of
the Trust, all the powers and authorities of Trustees hereunder with respect to
such Series or Class, but shall have no power or authority with respect to any
other Series or Class. Any provision of this Declaration relating to election of
Trustees by Shareholders only shall entitle the Shareholders of a Series or
Class for which Series Trustees have been appointed to vote with respect to the
election of such Series Trustees and the Shareholders of any other Series or
Class shall not be entitled to participate in such vote. In the event that
Series Trustees are appointed, the Trustees initially appointing such Series
Trustees shall, without the approval of any Outstanding Shares, amend either the
Declaration or the By-laws to provide for the respective responsibilities of the
Trustees and the Series Trustees in circumstances where an action of the
Trustees or Series Trustees affects all Series of the Trust or two or more
Series represented by different Trustees.
ARTICLE III
CONTRACTS WITH SERVICE PROVIDERS
Section 1. UNDERWRITING CONTRACT. The Trustees may in their discretion from time
to time enter into an exclusive or non-exclusive underwriting or distribution
contract or contracts providing for the sale of the Shares whereby the Trustees
may either agree to sell the Shares to the other party to the contract or
appoint such other party as their sales agent for the Shares, and in either case
on such terms and conditions, if any, as may be prescribed in the By-laws, and
such further terms and conditions as the Trustees may in their discretion
determine not inconsistent with the provisions of this Article III or of the
By-laws; and such contract may also provide for the repurchase of the Shares by
such other party as agent of the Trustees.
Section 2. ADVISORY OR MANAGEMENT CONTRACT. The Trustees may in their discretion
from time to time enter into one or more investment advisory or management
contracts or, if the Trustees establish multiple Series, separate investment
advisory or management contracts with respect to one or more Series whereby the
other party or parties to any such contracts shall undertake to furnish the
Trust or such Series management, investment advisory, administration,
accounting, legal, statistical and research facilities and services, promotional
or marketing activities, and such other facilities and services, if any, 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 the Declaration, the Trustees may authorize the Investment
Advisers or persons to whom the Investment Adviser delegates certain or all of
their duties, or any of them, under any such contracts (subject to such general
or specific instructions as the Trustees may from time to time adopt) to effect
purchases, sales, loans or exchanges of portfolio securities and other
investments of the Trust on behalf of the Trustees or may authorize any officer,
employee or Trustee to effect such purchases, sales, loans or exchanges pursuant
to recommendations of such Investment Advisers, or any of them (and all without
further action by the Trustees). Any such purchases, sales, loans and exchanges
shall be deemed to have been authorized by all of the Trustees.
Section 3. ADMINISTRATION AGREEMENT. The Trustees may in their discretion from
time to time enter into an administration agreement or, if the Trustees
establish multiple Series or Classes, separate administration agreements with
respect to each Series or Class, whereby the other party to such agreement shall
undertake to manage the business affairs of the Trust or of a Series or Class
thereof of the Trust and furnish the Trust or a Series or a Class thereof with
office facilities, and shall be responsible for the ordinary clerical,
bookkeeping and recordkeeping services at such office facilities, and other
facilities and services, if any, and all upon such terms and conditions as the
Trustees may in their discretion determine.
Section 4. SERVICE AGREEMENT. The Trustees may in their discretion from time to
time enter into service agreements with respect to one or more Series or Classes
of Shares whereby the other parties to such Service Agreements will provide
administration and/or support services pursuant to administration plans and
service plans, and all upon such terms and conditions as the Trustees in their
discretion may determine.
Section 5. TRANSFER AGENT. The Trustees may in their discretion from time to
time enter into a transfer agency and shareholder service contract whereby the
other party to such contract shall undertake to furnish transfer agency and
shareholder services to the Trust. The contract shall have such terms and
conditions as the Trustees may in their discretion determine not inconsistent
with the Declaration. Such services may be provided by one or more Persons.
Section 6. CUSTODIAN. The Trustees may appoint or otherwise engage one or more
banks or trust companies, each having aggregate capital, surplus and undivided
profits (as shown in its last published report) of at least two million dollars
($2,000,000), or any other entity satisfying the requirements of the 1940 Act,
to serve as Custodian with authority as its agent, but subject to such
restrictions, limitations and other requirements, if any, as may be contained in
the By-laws of the Trust. The Trustees may also authorize the Custodian to
employ one or more sub-custodians, including such foreign banks and securities
depositories as meet the requirements of applicable provisions of the 1940 Act,
and upon such terms and conditions as may be agreed upon between the Custodian
and such sub-custodian, to hold securities and other assets of the Trust and to
perform the acts and services of the Custodian, subject to applicable provisions
of law and resolutions adopted by the Trustees.
Section 7. AFFILIATIONS OF TRUSTEES OR OFFICERS, ETC. The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust or any Series
thereof is a shareholder, director, officer, partner, trustee, employee,
manager, adviser or distributor of or for any partnership, corporation, trust,
association or other organization or of or for any parent or affiliate of any
organization, with which a contract of the character described in this Article
III or for services as Custodian, Transfer Agent or disbursing agent or for
related services may have been or may hereafter be made, or that any such
organization, or any parent or affiliate thereof, is a Shareholder of or has an
interest in the Trust, or that
(ii) any partnership, corporation, trust, association or other organization with
which a contract of the character described in Sections 1, 2, 3 or 4 of this
Article III or for services as Custodian, Transfer Agent or disbursing agent or
for related services may have been or may hereafter be made also has any one or
more of such contracts with one or more other partnerships, corporations,
trusts, associations or other organizations, or has other business or interests,
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same or create any liability or accountability to the Trust or its Shareholders.
ARTICLE IV
COMPENSATION, LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 1. COMPENSATION. The Trustees as such shall be entitled to reasonable
compensation from the Trust, and they may fix the amount of such compensation.
Nothing herein shall in any way prevent the employment of any Trustee for
advisory, management, legal, accounting, investment banking or other services
and payment for the same by the Trust.
Section 2. LIMITATION OF LIABILITY. All persons contracting with or having any
claim against the Trust or a particular Series shall look only to the assets of
all Series or such particular Series for payment under such contract or claim;
and neither the Trustees nor, when acting in such capacity, any of the Trust's
officers, employees or agents, whether past, present or future, shall be
personally liable therefor. Every written instrument or obligation on behalf of
the Trust or any Series shall contain a statement to the foregoing effect, but
the absence of such statement shall not operate to make any Trustee or officer
of the Trust liable thereunder. Provided they have exercised reasonable care and
have acted under the reasonable belief that their actions are in the best
interest of the Trust, the Trustees and officers of the Trust shall not be
responsible or liable for any act or omission or for neglect or wrongdoing of
them or any officer, agent, employee, investment adviser or independent
contractor of the Trust, but nothing contained in this Declaration or in the
Delaware Act shall protect any Trustee or officer of the Trust against liability
to the Trust or to Shareholders to which he would otherwise be subject by reason
of willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office.
Section 3. INDEMNIFICATION.
(a) Subject to the exceptions and limitations contained in subsection (b) below:
(i) every person who is, or has been, a Trustee or an officer, employee or agent
of the Trust (including any individual who serves at its request as director,
officer, partner, trustee or the like of another organization in which it has
any interest as a shareholder, creditor or otherwise) ("Covered Person") shall
be indemnified by the Trust or the appropriate Series to the fullest extent
permitted by law against liability and against all expenses reasonably incurred
or paid by him in connection with any claim, action, suit or proceeding in which
he becomes involved as a party or otherwise by virtue of his being or having
been a Covered Person and against amounts paid or incurred by him in the
settlement thereof; and
(ii) as used herein, the words "claim," "action," "suit," or "proceeding" shall
apply to all claims, actions, suits or proceedings (civil, criminal or other,
including appeals), actual or threatened, and the words "liability" and
"expenses" shall include, without limitation, attorneys' fees, costs, judgments,
amounts paid in settlement, fines, penalties and other liabilities.
(b) No indemnification shall be provided hereunder to a Covered Person:
(i) who shall have been adjudicated by a court or body before which the
proceeding was brought (A) to be liable to the Trust or its Shareholders by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his office, or (B) not to have acted in
good faith in the reasonable belief that his action was in the best interest of
the Trust; or
(ii) in the event of a settlement, unless there has been a determination that
such Covered Person did not engage in willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his
office; (A) by the court or other body approving the settlement; (B) by at least
a majority of those Trustees who are neither Interested Persons of the Trust nor
are parties to the matter based upon a review of readily available facts (as
opposed to a full trial-type inquiry); (C) by written opinion of independent
legal counsel based upon a review of readily available facts (as opposed to a
full trial-type inquiry) or (D) by a vote of a majority of the Outstanding
Shares entitled to vote (excluding any Outstanding Shares owned of record or
beneficially by such individual).
(c) The rights of indemnification herein provided may be insured against by
policies maintained by the Trust, shall be severable, shall not be exclusive of
or affect any other rights to which any Covered Person may now or hereafter be
entitled, and shall inure to the benefit of the heirs, executors and
administrators of a Covered Person.
(d) To the maximum extent permitted by applicable law, expenses in connection
with the preparation and presentation of a defense to any claim, action, suit or
proceeding of the character described in subsection (a) of this Section may be
paid by the Trust or applicable Series from time to time prior to final
disposition thereof upon receipt of an undertaking by or on behalf of such
Covered Person that such amount will be paid over by him to the Trust or
applicable Series if it is ultimately determined that he is not entitled to
indemnification under this Section; provided, however, that either (i) such
Covered Person shall have provided appropriate security for such undertaking,
(ii) the Trust is insured against losses arising out of any such advance
payments or (iii) either a majority of the Trustees who are neither Interested
Persons of the Trust nor parties to the matter, or independent legal counsel in
a written opinion, shall have determined, based upon a review of readily
available facts (as opposed to a full trial-type inquiry) that there is reason
to believe that such Covered Person will not be disqualified from
indemnification under this Section.
(e) Any repeal or modification of this Article IV by the Shareholders, or
adoption or modification of any other provision of the Declaration or By-laws
inconsistent with this Article, shall be prospective only, to the extent that
such repeal, or modification would, if applied retrospectively, adversely affect
any limitation on the liability of any Covered Person or indemnification
available to any Covered Person with respect to any act or omission which
occurred prior to such repeal, modification or adoption. Any such repeal or
modification by the Shareholders shall require a vote of at least two-thirds of
the Outstanding Shares entitled to vote and present in person or by proxy at any
meeting of the Shareholders.
Section 4. INDEMNIFICATION OF SHAREHOLDERS. If any Shareholder or former
Shareholder of any Series shall be held personally liable solely by reason of
his being or having been a Shareholder and not because of his acts or omissions
or for some other reason, the Shareholder or former Shareholder (or his heirs,
executors, administrators or other legal representatives or in the case of any
entity, its general successor) shall be entitled out of the assets belonging to
the applicable Series to be held harmless from and indemnified against all loss
and expense arising from such liability. The Trust, on behalf of the affected
Series, shall, upon request by such Shareholder, assume the defense of any claim
made against such Shareholder for any act or obligation of the Series and
satisfy any judgment thereon from the assets of the Series.
Section 5. NO BOND REQUIRED OF TRUSTEES. No Trustee shall be obligated to give
any bond or other security for the performance of any of his duties hereunder.
Section 6. NO DUTY OF INVESTIGATION; NOTICE IN TRUST INSTRUMENTS, ETC. No
purchaser, lender, transfer agent or other Person dealing with the Trustees or
any officer, employee or agent of the Trust or a Series thereof shall be bound
to make any inquiry concerning the validity of any transaction purporting to be
made by the Trustees or by said officer, employee or agent or be liable for the
application of money or property paid, loaned, or delivered to or on the order
of the Trustees or of said officer, employee or agent. Every obligation,
contract, instrument, certificate, Share, other security of the Trust or a
Series thereof or undertaking, and every other act or thing whatsoever executed
in connection with the Trust shall be conclusively presumed to have been
executed or done by the executors thereof only in their capacity as Trustees
under this Declaration or in their capacity as officers, employees or agents of
the Trust or a Series thereof. Every written obligation, contract, instrument,
certificate, Share, other security of the Trust or a Series thereof or
undertaking made or issued by the Trustees may recite that the same is executed
or made by them not individually, but as Trustees under the Declaration, and
that the obligations of the Trust or a Series thereof under any such instrument
are not binding upon any of the Trustees or Shareholders individually, but bind
only the Trust Property or the Trust Property of the applicable Series, and may
contain any further recital which they may deem appropriate, but the omission of
such recital shall not operate to bind the Trustees individually. The Trustees
shall at all times maintain insurance for the protection of the Trust Property
or the Trust Property of the applicable Series, its Shareholders, Trustees,
officers, employees and agents in such amount as the Trustees shall deem
adequate to cover possible tort liability, and such other insurance as the
Trustees in their sole judgment shall deem advisable.
Section 7. RELIANCE ON EXPERTS, ETC. Each Trustee, officer or employee of the
Trust or a Series thereof shall, in the performance of his duties, powers and
discretions hereunder be fully and completely justified and protected with
regard to any act or any failure to act resulting from reliance in good faith
upon the books of account or other records of the Trust or a Series thereof,
upon an opinion of counsel, or upon reports made to the Trust or a Series
thereof by any of its officers or employees or by the Investment Adviser, the
Administrator, the Distributor, Transfer Agent, selected dealers, accountants,
appraisers or other experts or consultants selected with reasonable care by the
Trustees, officers or employees of the Trust, regardless of whether such counsel
or expert may also be a Trustee.
ARTICLE V
SERIES; CLASSES; SHARES; OTHER SECURITIES
Section 1. ESTABLISHMENT OF SERIES OR CLASS. The Trust shall consist of one or
more Series. Without limiting the authority of the Trustees to establish and
designate any further Series or Classes, the Trustees hereby establish a single
Series, designated Pioneer High Income Trust, and one Class of Shares,
designated as the common shares. Each additional Series shall be established and
is effective upon the adoption of a resolution of a majority of the Trustees or
any alternative date specified in such resolution. The Trustees may designate
the relative rights and preferences of the Shares of each Series. The Trustees
may divide the Shares of any Series into Classes. Any Shares of any further
Series and Classes that may from time to time be established and designated by
the Trustees shall be established and designated, and the variations in the
relative rights and preferences as between the different Series shall be fixed
and determined, by the Trustees; provided, that all Shares shall be identical
except for such variations as shall be fixed and determined between different
Series or Classes by the Trustees in establishing and designating such Class or
Series. Unless otherwise designated by the Trustees in the By-laws or
resolutions establishing a Class, the purchase price, the method of determining
the net asset value, and the relative liquidation, voting, dividend and other
rights and preferences of holders of a Class shall be as set forth in the
Trust's Registration Statement on Form N-2 under the Securities Act of 1933
and/or the 1940 Act relating to the issuance of Shares of such Class. To the
extent that the Trustees authorized and issue preferred Shares of any Class or
Series, they are hereby authorized and empowered to amend or supplement this
Declaration, including an amendment or modification to the rights of any Shares
outstanding at the time of such amendment or supplement, 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 amendment 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.
All references to Shares in this Declaration shall be deemed to be
Shares of any or all Series or Classes as the context may require. The Trust
shall maintain separate and distinct records for each Series and hold and
account for the assets thereof separately from the other assets of the Trust or
of any other Series. A Series may issue any number of Shares or any Class
thereof and need not issue Shares. Except as otherwise provided with respect to
a specific Class, each Share of a Series shall represent an equal beneficial
interest in the net assets of such Series. Each holder of Shares of a Series or
a Class thereof shall be entitled to receive his pro rata share of all
distributions made with respect to such Series or Class. Upon redemption of his
Shares, such Shareholder shall be paid solely out of the funds and property of
such Series. The Trustees may adopt and change the name of any Series or Class.
Section 2. SHARES. The beneficial interest in the Trust shall be divided into
transferable Shares of one or more separate and distinct Series or Classes
established by the Trustees. The number of Shares of each Series and Class is
unlimited and each Share shall have no par value per Share or such other amount
as the Trustees may establish. All Shares issued hereunder shall be fully paid
and nonassessable. Shareholders shall have no preemptive or other right to
subscribe to any additional Shares or other securities issued by the Trust. The
Trustees shall have full power and authority, in their sole discretion and
without obtaining Shareholder approval, to issue original or additional Shares
at such times and on such terms and conditions as they deem appropriate; to
issue fractional Shares and Shares held in the treasury; to establish and to
change in any manner Shares of any Series or Classes with such preferences,
rights upon liquidation, redemption rights, terms of conversion, voting powers,
and other rights and privileges as the Trustees may determine (but the Trustees
may not change Outstanding Shares in a manner materially adverse to the
Shareholders of such Shares); to divide or combine the Shares of any Series or
Classes into a greater or lesser number; to classify or reclassify any unissued
Shares of any Series or Classes into one or more Series or Classes of Shares; to
abolish any one or more Series or Classes of Shares; to issue Shares to acquire
other assets (including assets subject to, and in connection with, the
assumption of liabilities) and businesses; and to take such other action with
respect to the Shares as the Trustees may deem desirable. Shares held in the
treasury shall not confer any voting rights on the Trustees and shall not be
entitled to any dividends or other distributions declared with respect to the
Shares.
Section 3. INVESTMENT IN THE TRUST. The Trustees shall accept investments in any
Series or Class from such persons and on such terms as they may from time to
time authorize. At the Trustees' discretion, such investments, subject to
applicable law, may be in the form of cash or securities in which that Series is
authorized to invest, valued as provided in Article VI, Section 3. Investments
in a Series shall be credited to each Shareholder's account in the form of full
Shares at the Net Asset Value per Share next determined after the investment is
received or accepted as may be determined by the Trustees; provided, however,
that the Trustees may, in their sole discretion, (a) impose a sales charge upon
investments in any Series or Class, (b) issue fractional Shares, (c) determine
the Net Asset Value per Share of the initial capital contribution or (d)
authorize the issuance of Shares at a price other than Net Asset Value to the
extent permitted by the 1940 Act or any rule, order or interpretation of the
Commission thereunder. The Trustees shall have the right to refuse to accept
investments in any Series at any time without any cause or reason therefor
whatsoever.
Section 4. ASSETS AND LIABILITIES OF SERIES. All consideration received by the
Trust for the issue or sale of Shares of a particular Series, together with all
assets in which such consideration is invested or reinvested, all income,
earnings, profits, and proceeds thereof (including any proceeds derived from the
sale, exchange or liquidation of such assets, and any funds or payments derived
from any reinvestment of such proceeds in whatever form the same may be), shall
be held and accounted for separately from the assets of every other Series and
are referred to as "assets belonging to" that Series. The assets belonging to a
Series shall belong only to that Series for all purposes, and to no other
Series, subject only to the rights of creditors of that Series. Any assets,
income, earnings, profits, and proceeds thereof, funds, or payments which are
not readily identifiable as belonging to any particular Series shall be
allocated by the Trustees between and among one or more Series as the Trustees
deem fair and equitable. Each such allocation shall be conclusive and binding
upon the Shareholders of all Series for all purposes, and such assets, earnings,
income, profits or funds, or payments and proceeds thereof shall be referred to
as assets belonging to that Series. The assets belonging to a Series shall be so
recorded upon the books of the Trust, and shall be held by the Trustees in trust
for the benefit of the Shareholders of that Series. The assets belonging to a
Series shall be charged with the liabilities of that Series and all expenses,
costs, charges and reserves attributable to that Series, except that liabilities
and expenses allocated solely to a particular Class shall be borne by that
Class. Any general liabilities, expenses, costs, charges or reserves of the
Trust which are not readily identifiable as belonging to any particular Series
or Class shall be allocated and charged by the Trustees between or among any one
or more of the Series or Classes in such manner as the Trustees deem fair and
equitable. Each such allocation shall be conclusive and binding upon the
Shareholders of all Series or Classes for all purposes.
Without limiting the foregoing, but subject to the right of the
Trustees to allocate general liabilities, expenses, costs, charges or reserves
as herein provided, the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to a particular Series shall
be enforceable against the assets of such Series only, and not against the
assets of any other Series. Notice of this contractual limitation on liabilities
among Series may, in the Trustees' discretion, be set forth in the certificate
of trust of the Trust (whether originally or by amendment) as filed or to be
filed in the Office of the Secretary of State of the State of Delaware pursuant
to the Delaware Act, and upon the giving of such notice in the certificate of
trust, the statutory provisions of Section 3804 of the Delaware Act relating to
limitations on liabilities among Series (and the statutory effect under Section
3804 of setting forth such notice in the certificate of trust) shall become
applicable to the Trust and each Series. Any person extending credit to,
contracting with or having any claim against any Series may look only to the
assets of that Series to satisfy or enforce any debt, with respect to that
Series. No Shareholder or former Shareholder of any Series shall have a claim on
or any right to any assets allocated or belonging to any other Series.
Section 5. OWNERSHIP AND TRANSFER OF SHARES. The Trust or a transfer or similar
agent for the Trust shall maintain a register containing the names and addresses
of the Shareholders of each Series and Class thereof, the number of Shares of
each Series and Class held by such Shareholders, and a record of all Share
transfers. The register shall be conclusive as to the identity of Shareholders
of record and the number of Shares held by them from time to time. The Trustees
may authorize the issuance of certificates representing Shares and adopt rules
governing their use. The Trustees may make rules governing the transfer of
Shares, whether or not represented by certificates. Except as otherwise provided
by the Trustees, Shares shall be transferable on the books of the Trust only by
the record holder thereof or by his duly authorized agent upon delivery to the
Trustees or the Trust's transfer agent of a duly executed instrument of
transfer, together with a Share certificate if one is outstanding, and such
evidence or the genuineness of each such execution and authorization and of such
other matters as may be required by the Trustees. Upon such delivery, and
subject to any further requirements specified by the Trustees or contained in
the By-laws, the transfer shall be recorded on the books of the Trust. Until a
transfer is so recorded, the Shareholder of record of Shares shall be deemed to
be the holder of such Shares for all purposes hereunder and neither the Trustees
nor the Trust, nor any transfer agent or registrar or any officer, employee or
agent of the Trust, shall be affected by any notice of a proposed transfer.
Section 6. STATUS OF SHARES; LIMITATION OF SHAREHOLDER LIABILITY. Shares shall
be deemed to be personal property giving Shareholders only the rights provided
in this Declaration. Every Shareholder, by virtue of having acquired a Share,
shall be held expressly to have assented to and agreed to be bound by the terms
of this Declaration and to have become a party hereto. No Shareholder shall be
personally liable for the debts, liabilities, obligations and expenses incurred
by, contracted for, or otherwise existing with respect to, the Trust or any
Series. The death, incapacity, dissolution, termination or bankruptcy of a
Shareholder during the existence of the Trust shall not operate to terminate the
Trust, nor entitle the representative of any such Shareholder to an accounting
or to take any action in court or elsewhere against the Trust or the Trustees,
but entitles such representative only to the rights of such Shareholder 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 as partners. Neither the Trust nor the
Trustees shall have any power to bind any Shareholder personally or to demand
payment from any Shareholder for anything, other than as agreed by the
Shareholder. Shareholders shall have the same limitation of personal liability
as is extended to shareholders of a private corporation for profit incorporated
in the State of Delaware. Every written obligation of the Trust or any Series
shall contain a statement to the effect that such obligation may only be
enforced against the assets of the appropriate Series or all Series; however,
the omission of such statement shall not operate to bind or create personal
liability for any Shareholder or Trustee.
Section 7. OTHER SECURITIES. The Trustees may authorize and issue such other
securities of the Trust other than Shares 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 securities.
ARTICLE VI
DISTRIBUTIONS AND REDEMPTIONS
Section 1. DISTRIBUTIONS. The Trustees or a committee of one or more Trustees or
one or more officers may declare and pay dividends and other distributions,
including dividends on Shares of a particular Series or Class and other
distributions from the assets belonging to that Series. No dividend or
distribution, including, without limitation, any distribution paid upon
termination of the Trust or of any Series (or Class) with respect to, nor any
redemption or repurchase of, the Shares of any Series (or Class) shall be
effected by the Trust other than from the assets held with respect to such
Series, nor shall any Shareholder of any particular Series otherwise have any
right or claim against the assets held with respect to any other Series except
to the extent that such Shareholder has such a right or claim hereunder as a
Shareholder of such other Series. The Trustees shall have full discretion to
determine which items shall be treated as income and which items as capital; and
each such determination and allocation shall be conclusive and binding upon the
Shareholders. The amount and payment of dividends or distributions and their
form, whether they are in cash, Shares or other Trust Property, shall be
determined by the Trustees. Dividends and other distributions may be paid
pursuant to a standing resolution adopted once or more often as the Trustees
determine. Except as provided with respect to a particular Class in the By-laws
or the resolutions establishing such Class, all dividends and other
distributions on Shares of a particular Series shall be distributed pro rata to
the Shareholders of that Series in proportion to the number of Shares of that
Series they held on the record date established for such payment. The Trustees
may adopt and offer to Shareholders such dividend reinvestment plans, cash
dividend payout plans or similar plans as the Trustees deem appropriate.
Section 2. REDEMPTIONS. Except as provided with respect to a particular Class in
the By-laws or the resolutions establishing such Class, Shares of the Trust will
not be redeemed or repurchased by the Trust, except as the Trustees shall
determine from time to time and the Trust shall be under no obligation to redeem
or repurchase Shares. The Trustees may specify conditions, prices, and places of
redemption, may specify binding requirements for the proper form or forms of
requests for redemption and may specify the amount of any deferred sales charge
to be withheld from redemption proceeds. Payment of the redemption price may be
wholly or partly in securities or other assets at the value of such securities
or assets used in such determination of Net Asset Value, or may be in cash. Upon
redemption, Shares may be reissued from time to time. The Trustees may require
Shareholders to redeem Shares for any reason under terms set by the Trustees,
including, but not limited to, the failure of a Shareholder to supply a taxpayer
identification number if required to do so, or to have the minimum investment
required, or to pay when due for the purchase of Shares issued to him. To the
extent permitted by law, the Trustees may retain the proceeds of any redemption
of Shares required by them for payment of amounts due and owing by a Shareholder
to the Trust or any Series or Class or any governmental authority.
Notwithstanding the foregoing, the Trustees may postpone payment of the
redemption price and may suspend the right of the Shareholders to require any
Series or Class to redeem Shares during any period of time when and to the
extent permissible under the 1940 Act.
Section 3. DETERMINATION OF NET ASSET VALUE. The Trustees shall cause the Net
Asset Value of Shares of each Series or Class to be determined from time to time
in a manner consistent with applicable laws and regulations. The Trustees may
delegate the power and duty to determine Net Asset Value per Share to one or
more Trustees or officers of the Trust or to a custodian, depository or other
agent appointed for such purpose. The Net Asset Value of Shares shall be
determined separately for each Series or Class at such times as may be
prescribed by the Trustees or, in the absence of action by the Trustees, as of
the close of regular trading on the New York Stock Exchange on each day for all
or part of which such Exchange is open for unrestricted trading. Section 4.
SUSPENSION OF RIGHT OF REDEMPTION. If, as referred to in Section 2 of this
Article, the Trustees postpone payment of the redemption price and suspend the
right of Shareholders to redeem their Shares, such suspension shall take effect
at the time the Trustees shall specify, but not later than the close of business
on the business day next following the declaration of suspension. Thereafter
Shareholders shall have no right of redemption or payment until the Trustees
declare the end of the suspension. If the right of redemption is suspended, a
Shareholder may either withdraw his request for redemption or receive payment
based on the Net Asset Value per Share next determined after the suspension
terminates.
Section 5. REPURCHASE BY AGREEMENT. The Trust may repurchase Shares directly, or
through the Distributor or another agent designated for the purpose, by
agreement with the owner thereof at a price not exceeding the Net Asset Value
per Share determined as of the time when the purchase or contract of purchase is
made or the Net Asset Value as of any time which may be later determined,
provided payment is not made for the Shares prior to the time as of which such
Net Asset Value is determined.
ARTICLE VII
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. VOTING POWERS. Subject to the voting rights established with respect
to a particular Class in the By-laws or the resolutions establishing such Class,
the Shareholders shall have power to vote only with respect to (a) the election
of Trustees as provided in Section 2 of this Article; (b) the removal of
Trustees as provided in Article II, Section 5(b); (c) any investment advisory or
management contract to the extent required by the 1940 Act; (d) the amendment of
this Declaration to the extent and as provided in Article X, Section 10; (d)
termination of the Trust to the extent provided in Article IX, Section 4, (f)
the conversion of the Trust to an open-end investment company to the extent
provided in Article IX, Section 5, (g) the reorganization of the Trust to the
extent provided in Article IX, Section 6; (h) to approve a transaction subject
to Article IX, Section 7, and (i) such additional matters relating to the Trust
as may be required or authorized by law, this Declaration, or the By-laws or any
registration of the Trust with the Commission or any State, or as the Trustees
may consider desirable.
On any matter submitted to a vote of the Shareholders, all Shares shall
be voted by individual Series or Class, except (a) as provided with respect to a
particular Class in the By-laws or the resolutions establishing such Class, (b)
when required by the 1940 Act, Shares shall be voted in the aggregate and not by
individual Series or Class, and (c) when the Trustees have determined that the
matter affects the interests of more than one Series or Class, then the
Shareholders of all such Series or Classes shall be entitled to vote thereon. As
determined by the Trustees without the vote or consent of shareholders and
except as provided with respect to a particular Class in the By-laws or the
resolutions establishing such Class, on any matter submitted to a vote of
Shareholders either (i) each whole Share shall be entitled to one vote as to any
matter on which it is entitled to vote and each fractional Share shall be
entitled to a proportionate fractional vote or (ii) each dollar of net asset
value (number of Shares owned times net asset value per share of such Series or
Class, as applicable) shall be entitled to one vote on any matter on which such
Shares are entitled to vote and each fractional dollar amount shall be entitled
to a proportionate fractional vote. Without limiting the power of the Trustees
in any way to designate otherwise in accordance with the preceding sentence, the
Trustees hereby establish that each whole Share shall be entitled to one vote as
to any matter on which it is entitled to vote and each fractional Share shall be
entitled to a proportionate fractional vote. There shall be no cumulative voting
in the election of Trustees. Shares may be voted in person or by proxy or in any
manner provided for in the By-laws. The By-laws may provide that proxies may be
given by any electronic or telecommunications device or in any other manner, but
if a proposal by anyone other than the officers or Trustees is submitted to a
vote of the Shareholders of any Series or Class, or if there is a proxy contest
or proxy solicitation or proposal in opposition to any proposal by the officers
or Trustees, Shares may be voted only in person or by written proxy. Until
Shares of a Series are issued, as to that Series the Trustees may exercise all
rights of Shareholders and may take any action required or permitted to be taken
by Shareholders by law, this Declaration or the By-laws. Meetings of
Shareholders shall be called and notice thereof and record dates therefor shall
be given and set as provided in the By-laws.
Section 2. QUORUM; REQUIRED VOTE. One-third of the Outstanding Shares of each
Series or Class, or one-third of the Outstanding Shares of the Trust, entitled
to vote in person or by proxy shall be a quorum for the transaction of business
at a Shareholders' meeting with respect to such Series or Class, or with respect
to the entire Trust, respectively. Any lesser number shall be sufficient for
adjournments. Any adjourned session of a Shareholders' meeting may be held
within a reasonable time without further notice. Except when a larger vote is
required by law, this Declaration or the By-laws, a majority of the Shares
voting at a Shareholders' meeting in person or by proxy shall decide any matters
to be voted upon with respect to the entire Trust and a plurality of such Shares
shall elect a Trustee; provided, that if this Declaration or applicable law
permits or requires that Shares be voted on any matter by individual Series or
Classes, then a majority of the Shares of that Series or Class (or, if required
by law, a majority of the Shares outstanding and entitled to vote of that Series
or Class) voting at a Shareholders' meeting in person or by proxy on the matter
shall decide that matter insofar as that Series or Class is concerned; and
provide further that if this Declaration (including any terms of a class of
preferred Shares) or applicable law require that the Shareholders of one or more
specific Class elect one or more Trustees, such Trustees shall be elected by a
plurality of the Shares of such Class.
Section 3. RECORD DATES. For the purpose of determining the Shareholders of any
Series (or Class) who are entitled to receive payment of any dividend or of any
other distribution, the Trustees may from time to time fix a date, which shall
be before the date for the payment of such dividend or such other payment, as
the record date for determining the Shareholders of such Series (or Class)
having the right to receive such dividend or distribution. Without fixing a
record date, the Trustees may for distribution purposes close the register or
transfer books for one or more Series (or Classes) any time prior to the payment
of a distribution. Nothing in this Section shall be construed as precluding the
Trustees from setting different record dates for different Series (or Classes).
Section 4. ADDITIONAL PROVISIONS. The By-laws may include further provisions
for Shareholders' votes and meetings and related matters.
ARTICLE VIII
EXPENSES OF THE TRUST AND SERIES
Section 1. PAYMENT OF EXPENSES BY THE TRUST. Subject to Article V, Section 4,
the Trust or a particular Series shall pay, or shall reimburse the Trustees from
the assets belonging to all Series or the particular Series, for their expenses
(or the expenses of a Class of such Series) and disbursements, including, but
not limited to, interest charges, taxes, brokerage fees and commissions;
expenses of issue, repurchase and redemption of Shares; certain insurance
premiums; applicable fees, interest charges and expenses of third parties,
including the Trust's investment advisers, managers, administrators,
distributors, custodians, transfer agents and fund accountants; fees of pricing,
interest, dividend, credit and other reporting services; costs of membership in
trade associations; telecommunications expenses; funds transmission expenses;
auditing, legal and compliance expenses; costs of forming the Trust and its
Series and maintaining its existence; costs of preparing and printing the
prospectuses of the Trust and each Series, statements of additional information
and Shareholder reports and delivering them to Shareholders; expenses of
meetings of Shareholders and proxy solicitations therefor; costs of maintaining
books and accounts; costs of reproduction, stationery and supplies; fees and
expenses of the Trustees; compensation of the Trust's officers and employees and
costs of other personnel performing services for the Trust or any Series; costs
of Trustee meetings; Commission registration fees and related expenses; state or
foreign securities laws registration fees and related expenses; and for such
non-recurring items as may arise, including litigation to which the Trust or a
Series (or a Trustee or officer of the Trust acting as such) is a party, and for
all losses and liabilities by them incurred in administering the Trust. The
Trustees shall have a lien on the assets belonging to the appropriate Series, or
in the case of an expense allocable to more than one Series, on the assets of
each such Series, prior to any rights or interests of the Shareholders thereto,
for the reimbursement to them of such expenses, disbursements, losses and
liabilities.
Section 2. PAYMENT OF EXPENSES BY SHAREHOLDERS. The Trustees shall have the
power, as frequently as they may determine, to cause each Shareholder, or each
Shareholder of any particular Series, to pay directly, in advance or arrears,
for charges of the Trust's custodian or transfer, shareholder servicing or
similar agent, an amount fixed from time to time by the Trustees, by setting off
such charges due from such Shareholder from declared but unpaid dividends 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.
ARTICLE IX
MISCELLANEOUS
Section 1. TRUST NOT A PARTNERSHIP. This Declaration creates a trust and not a
partnership. No Trustee shall have any power to bind personally either the
Trust's officers or any Shareholder.
Section 2. TRUSTEE ACTION. The exercise by the Trustees of their powers and
discretion hereunder in good faith and with reasonable care under the
circumstances then prevailing shall be binding upon everyone interested. Subject
to the provisions of Article IV, the Trustees shall not be liable for errors of
judgment or mistakes of fact or law.
Section 3. RECORD DATES. The Trustees may fix in advance a date up to ninety
(90) days before the date of any Shareholders' meeting, or the date for the
payment of any dividends or other distributions, or the date for the allotment
of rights, or the date when any change or conversion or exchange of Shares shall
go into effect as a record date for the determination of the Shareholders
entitled to notice of, and to vote at, any such meeting, or entitled to receive
payment of such dividend or other distribution, or to receive any such allotment
of rights, or to exercise such rights in respect of any such change, conversion
or exchange of Shares.
Section 4. TERMINATION OF THE TRUST.
(a) This Trust shall have perpetual existence. Subject to the affirmative vote
of not less than three-quarters of the Shares outstanding and entitled to vote
of the Trust or of each Series to be affected, the Trustees may:
(i) sell and convey all or substantially all of the assets of all Series or any
affected Series to another Series or to any other corporation, association,
trust or other organization, or a series thereof, for adequate consideration,
which may include the assumption of all outstanding obligations, taxes and other
liabilities, accrued or contingent, of the Trust or any affected Series, and
which may include shares of or interests in such Series, entity, or series
thereof;
(ii) merge with or into, consolidate or exchange Shares with any other entity;
or
(iii) at any time sell and convert into money all or substantially all of the
assets of all Series or any affected Series.
PROVIDED, HOWEVER, if at least three-quarters of the Trustees then in office
have approved the transactions in (i) or (ii) above, then such actions may be
approved by the affirmative vote of a majority of the Shares outstanding and
entitled to vote of the Trust or the affected Series.
Upon making reasonable provision for the payment of all known
liabilities of all Series or any affected Series in either (i) or (ii), by such
assumption or otherwise, the Trustees shall distribute the remaining proceeds or
assets (as the case may be) ratably among the Shareholders of all Series or any
affected Series; however, the payment to any particular Class of such Series may
be reduced by any fees, expenses or charges allocated to that Class.
(b) Upon completion of the distribution of the remaining proceeds or assets
pursuant to subsection (a), the Trust or affected Series shall terminate and the
Trustees and the Trust shall be discharged of any and all further liabilities
and duties hereunder with respect thereto and the right, title and interest of
all parties therein shall be canceled and discharged. Upon termination of the
Trust, following completion of winding up of its business, the Trustees shall
cause a certificate of cancellation of the Trust's certificate of trust to be
filed in accordance with the Delaware Act, which certificate of cancellation may
be signed by any one Trustee.
Section 5. CONVERSION TO AN OPEN-END INVESTMENT COMPANY. 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 three-quarters 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 three-quarters of the Trustees,
in which case approval by a vote of a majority of the Shares outstanding and
entitled to 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.
Section 6. REORGANIZATION.
(a) Except as provided in clause (b) of this Section 6 or in Sections 4 or 7 of
this Article IX, the Trust may merge or consolidate with any other corporation,
association, trust or other organization or may sell, lease or exchange all or
substantially all of the Trust Property or the property, including its good
will, upon such terms and conditions and for such consideration when and as
authorized by a majority of the Trustees and approved by a vote of a majority of
the Shares outstanding and entitled to 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.
(b) Notwithstanding anything else herein, to change the Trust's form or place of
organization the Trustees may, without Shareholder approval unless such approval
is required by applicable law, (i) cause the Trust to merge or consolidate with
or into one or more entities, if the surviving or resulting entity is the Trust
or any other corporation, association, trust or other organization, or a series
thereof, (ii) cause the Shares to be exchanged under or pursuant to any state or
federal statute to the extent permitted by law, or (iii) cause the Trust to
incorporate under the laws of Delaware or any other U.S. jurisdiction. Any
agreement of merger or consolidation or certificate of merger may be signed by a
majority of Trustees and facsimile signatures conveyed by electronic or
telecommunication means shall be valid.
(c) Pursuant to and in accordance with the provisions of Section 3815(f) of the
Delaware Act, an agreement of merger or consolidation approved by the Trustees,
and if applicable, Shareholders in accordance with this Section 6 may effect any
amendment to the Declaration or effect the adoption of a new trust instrument of
the Trust if it is the surviving or resulting trust in the merger or
consolidation.
(d) The Trustees may create one or more business trusts to which all or any part
of the assets, liabilities, profits or losses of the Trust or any Series or
Class thereof may be transferred and may provide for the conversion of Shares in
the Trust or any Series or Class thereof into beneficial interests in any such
newly created trust or trusts or any series or classes thereof.
Section 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 or consent of holders of not less than three-quarters of the Shares of each
affected class or series outstanding, votes 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 corporation, 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 associates, as such terms are defined in clause (ii) below, of
a Principal Shareholder. For the purpose 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 acquiring, holding, voting or disposing of
Shares, of 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 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 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 three-quarters 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 the vote of a majority of the Shares
outstanding and entitled to 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 owner 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.
Section 8. DECLARATION OF TRUST. The original or a copy of this Declaration of
Trust and of each amendment hereto or Declaration of Trust supplemental shall be
kept at the office of the Trust where it may be inspected by any Shareholder.
Anyone dealing with the Trust may rely on a certificate by a Trustee or an
officer of the Trust as to the authenticity of the Declaration of Trust or any
such amendments or supplements and as to any matters in connection with the
Trust. The masculine gender herein shall include the feminine and neuter
genders. Headings herein are for convenience only and shall not affect the
construction of this Declaration of Trust. This Declaration of Trust may be
executed in any number of counterparts, each of which shall be deemed an
original.
Section 9. APPLICABLE LAW. This Declaration and the Trust created hereunder are
governed by and construed and administered according to the Delaware Act and the
applicable laws of the State of Delaware; provided, however, that there shall
not be applicable to the Trust, the Trustees or this Declaration of Trust (a)
the provisions of Section 3540 of Title 12 of the Delaware Code, or (b) any
provisions of the laws (statutory or common) of the State of Delaware (other
than the Delaware Act) pertaining to trusts which relate to or regulate (i) the
filing with any court or governmental body or agency of trustee accounts or
schedules of trustee fees and charges, (ii) affirmative requirements to post
bonds for trustees, officers, agents or employees of a trust, (iii) the
necessity for obtaining court or other governmental approval concerning the
acquisition, holding or disposition of real or personal property, (iv) fees or
other sums payable to trustees, officers, agents or employees of a trust, (v)
the allocation of receipts and expenditures to income or principal, (vi)
restrictions or limitations on the permissible nature, amount or concentration
of trust investments or requirements relating to the titling, storage or other
manner of holding of trust assets, or (vii) the establishment of fiduciary or
other standards of responsibilities or limitations on the acts or powers of
trustees, which are inconsistent with the limitations or liabilities or
authorities and powers of the Trustees set forth or referenced in this
Declaration. The Trust shall be of the type commonly called a Delaware business
trust, and, without limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a trust under Delaware law. The
Trust specifically reserves the right to exercise any of the powers or
privileges afforded to trusts or actions that may be engaged in by trusts under
the Delaware Act, and the absence of a specific reference herein to any such
power, privilege or action shall not imply that the Trust may not exercise such
power or privilege or take such actions.
Section 10. AMENDMENTS.
(a) The Trustees may, without any Shareholder vote, amend or otherwise
supplement this Declaration by making an amendment, a Declaration of Trust
supplemental hereto or an amended and restated trust instrument; provided, that
Shareholders shall have the right to vote on any amendment (a) which would
affect the voting rights of Shareholders granted in Article VII, Section l, (b)
to this Section 10, (c) required to be approved by Shareholders by law or by the
Trust's registration statement(s) filed with the Commission, and (d) submitted
to them by the Trustees in their discretion. Any amendment submitted to
Shareholders which the Trustees determine would affect the Shareholders of any
Series shall be authorized by vote of the Shareholders of such Series and no
vote shall be required of Shareholders of a Series not affected. Notwithstanding
anything else herein, any amendment to Article IV which would have the effect of
reducing the indemnification and other rights provided thereby to Trustees,
officers, employees, and agents of the Trust or to Shareholders or former
Shareholders, and any repeal or amendment of this sentence shall each require
the affirmative vote of the holders of two-thirds of the Outstanding Shares of
the Trust entitled to vote thereon and no such amendment shall effect the right
to indemnification of any person who is no longer a Trustee, Officer or employee
or agent at the time of such amendment.
(b) The Trustees may not amend this Declaration of Trust to eliminate the rights
of Shareholders of any Class or Series as set forth in this Section 10(b) to
vote on any amendment of this Declaration of Trust or the By-Laws or alter or
amend the percentage of voting Shares required to approve any amendment or
action which requires a specific Shareholder vote under this Declaration of
Trust or the By-Laws unless an equivalent vote has authorized such an amendment
of the Declaration of Trust or By-Laws. Any amendment (other than an amendment
establishing the rights of another Class of Shares, even if the rights of such
Class adversely effect the rights of any existing Class) which adversely affects
the holders of one or more Classes or Series of Shares shall require a vote of
the Shareholders holding a majority of the Shares of each Class or Series so
adversely affected and entitled to vote thereon and no vote of Shareholders of
any Class or Series not so adversely affected shall be required, except that any
amendment of any provision of Article IX, Sections 4, 5, 6 or 7 shall require
the vote of the Shareholders holding three-quarters of the Shares of each Class
and Series entitled to vote thereon, regardless of the percentage of Trustees
recommending such amendment.
Section 11. DERIVATIVE ACTIONS. In addition to the requirements set forth in
Section 3816 of the Delaware Act, a Shareholder may bring a derivative action on
behalf of the Trust only if the following conditions are met:
(a) Shareholders eligible to bring such derivative action under the Delaware Act
who hold at least 10% of the Outstanding Shares of the Trust, or 10% of the
Outstanding Shares of the Series or Class to which such action relates, shall
join in the request for the Trustees to commence such action; and
(b) the Trustees must be afforded a reasonable amount of time to consider such
shareholder request and to investigate the basis of such claim. The Trustees
shall be entitled to retain counsel or other advisers in considering the merits
of the request and shall require an undertaking by the Shareholders making such
request to reimburse the Trust for the expense of any such advisers in the event
that the Trustees determine not to bring such action.
Section 12. FISCAL YEAR. The fiscal year of the Trust shall end on a specified
date as set forth in the By-laws. The Trustees may change the fiscal year of
the Trust without Shareholder approval.
Section 13. SEVERABILITY. The provisions of this Declaration are severable. If
the Trustees determine, with the advice of counsel, that any provision hereof
conflicts with the 1940 Act, the regulated investment company provisions of the
Internal Revenue Code or with other applicable laws and regulations, the
conflicting provision shall be deemed never to have constituted a part of this
Declaration; provided, however, that such determination shall not affect any of
the remaining provisions of this Declaration or render invalid or improper any
action taken or omitted prior to such determination. If any provision hereof
shall be held invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision only in such jurisdiction
and shall not affect any other provision of this Declaration.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the undersigned being all the Trustees of the Trust
have executed this instrument as of the date first written above.
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, As Trustee and not individually
