Exhibit (a)(2)
XXXXXX MULTI-MARKET INCOME TRUST
(FORMERLY XXXXXX TRUST #8)
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
JANUARY 9, 1989
AGREEMENT AND DECLARATION OF TRUST made, amended and restated at Boston,
Massachusetts this 9th day of January, 1989, by the Trustee hereunder, and by
the holders of various classes of shares of beneficial interest to be issued
hereunder as hereinafter provided.
WITNESSETH
WHEREAS, the Trustee hereunder is desirous of forming a trust for the
purposes of carrying on the business of management investment company; and
WHEREAS, in furtherance of such purposes, the Trustee and any successor
Trustees elected in accordance with Article IV hereof are acquiring and may
hereafter acquire assets and properties, to hold and manage and trustees of a
Massachusetts voluntary association with transferable shares in accordance with
the provisions hereinafter set forth.
NOW, THEREFORE, the Trustee and any successor Trustees elected in
accordance with Article IV hereof hereby declare that they will hold all cash,
securities and other assets and properties, which they may from time to time
acquire in any manner as Trustees hereunder in trust to manage and dispose of
the same upon the following terms and conditions for the pro rata benefit of the
holders from time to time of shares in this Trust as hereinafter set forth.
ARTICLE I
Name and Definitions
Name and Registered Agent
Section 1. This Trust, which has heretofore been known as Xxxxxx Trust #8,
shall hereafter be known as Xxxxxx Multi-Market Income Trust and the Trustees
shall conduct the business of the Trust under that name or any other name as
they may from time to time determine. The registered agent for the Trust in
Massachusetts shall be CT Corporation System whose address is 0 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx or such other person as the Trustees may from time to time
designate.
DEFINITIONS
SECTION 2. Whenever used herein, unless otherwise required by the context
or specifically provided:
(a) The "Trust" refers to the Massachusetts voluntary association
established by this Agreement and Declaration of Trust, as amended from time to
time, pursuant to Massachusetts General Laws, Chapter 182;
(b) "Trustees" refers to the Trustees of the Trust named herein or elected
in accordance with Article IV hereof and then in office;
(c) "Shares" mean the various units authorized by Article III hereof into
which the beneficial interest in the Trust shall be divided from time to time
and include fractions of Shares as well as whole shares;
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company Act of 1940 (and any
successor statute) and the Rule and Regulations thereunder, all as amended from
time to time;
(f) The terms "Affiliated Person", "Assignment", "Commission", "Interested
Person", "Principal Underwriter" and "vote of a majority of the outstanding
voting securities" shall have the meanings given them in the 1940 Act;
(g) "Declaration of Trust" shall mean this Agreement and Declaration of
Trust as amended or restated from time to time;
(h) "By-Laws" shall mean the By-Laws of the Trust as amended from time to
time; and
(i) "Net asset value per Common Share" shall mean the meaning set forth in
Section 2 of Article VI hereof.
(j) "Common Shares" shall mean the common shares of beneficial interest
authorized by Section 1 of Article III hereof.
(k) "Notes" shall mean short or intermediate term notes authorized by
Section 2(1) of Article IV hereof which may be issued by the Trust from time to
time.
ARTICLE II
NATURE AND PURPOSE
The Trust is a voluntary association (commonly known as a business
trust) of the type referred to in Chapter 182 of the General Laws of the
Commonwealth of Massachusetts. The Trust is not intended to be, shall not be
deemed to be, and shall not be treated as, a general or limited partnership,
joint venture, corporation or joint stock company, nor shall the Trustees or
Shareholders or any of them for any purpose be deemed to be, or be treated in
any way whatsoever as though they were, liable or responsible hereunder as
partners or joint venturers. The purpose of the Trust is to engage in, operate
and carry on the business of a closed-end management investment company; and to
do any and all acts or things as are necessary, convenient, appropriate,
incidental or customary in connection therewith.
ARTICLE III
SHARES
DIVISION OF BENEFICIAL INTEREST
SECTION 1. A class of common shares of beneficial interest, $.01 par
value is hereby authorized, and each Common Share shall represent an equal
proportionate interest with each other Common Share, no such Common Share having
a preference or priority over any other Common Share. In addition to the Common
Shares authorized by the Section 1 of Article III, the Trustees may authorize
additional separate classes of shares of beneficial interest, $.01 par value,
together with such preferences, voting powers, qualifications and special or
relative rights or privileges as may be determined from time to time by
resolution of the Trustees. The number of Shares of each class authorized shall
be unlimited, and the Shares, so authorized may be represented in part by
fractional Shares. The Trustees may from time to time divide or combine the
Shares into a greater or lesser number without thereby changing the
proportionate beneficial interests in the Trust represented by such shares. The
Trustees may authorize that the Shares of a particular class be issued in as
many series with such preferences, voting powers, qualifications and special or
relative rights or privileges as may be determined from time to time by
resolution of the Trustees. Each series of a class shall have a distinguishing
designation. All Shares issued hereunder including, without limitation Shares
issued in connection with a dividend in Shares or a split of Shares, shall be
fully paid and nonassessable.
OWNERSHIP OF SHARES
SECTION 2. The ownership and transfer of Shares shall be recorded on
the books of the Trust or its transfer or similar agent or agents. No
certificates certifying the ownership of Shares shall be issued except as the
Trustees may otherwise determine from time to time. The Trustees may make such
rules as they consider appropriate for
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the issuance of Share Certificates, the transfer of Shares and similar matters.
The record books of the Trust as kept by the Trust or any transfer or similar
agent or agents of the Trust, as the case may be, shall be conclusive as to who
are the Shareholders of the Trust and as to the number of Shares held from time
to time by each Shareholder.
INVESTMENTS IN TRUST
SECTION 3. The Trustees may issue Shares of the Trust to such persons
and on such terms and, subject to any requirements of law, for such
consideration, which may consist of cash or tangible or intangible property or a
combination thereof, as they may from time to time authorize.
All consideration received by the Trust for the issue or sale of
Shares, together with all income, earnings, profits, and proceeds thereof,
including any proceeds derived from the sale, exchange or liquidation thereof,
and any funds or payments derived from any reinvestment of such proceeds in
whatever form the same may be, shall irrevocably belong to the Trust for all
purposes, subject only to the rights of creditors, and shall be so handled upon
the books of account of the Trust.
MERGER OR CONSOLIDATION
SECTION 4. In connection with the acquisition of all, or substantially
all, of the assets or stock of another investment company, investment trust, or
of a company classified as a personal holding company under the Internal Revenue
Code of 1986, the Trustees may issue or cause to be issued Shares and accept in
payment therefor, in lieu of cash, such assets at their market value, or such
stock at the market value of the assets held by such investment company or
investment trust, either with or without adjustment for contingent costs or
liabilities.
NO PREEMPTIVE RIGHTS, ETC.
SECTION 5. Shareholders shall have no preemptive or other rights to
receive, purchase or subscribe for any additional Shares or other securities
issued by the Trust. The Shareholders shall have no appraisal rights with
respect to their Shares and, except as otherwise determined by resolution of
the Trustees in their sole discretion, shall have no exchange or conversion
rights with respect to their Shares.
STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY
SECTION 6. Shares shall be deemed to be personal property giving only
the rights provided in this instrument. Every Shareholder by virtue of having
become a Shareholder shall be held to have expressly assented and agreed to the
terms of the Declaration of Trust and to have become a party thereto. The death
of a Shareholder during the continuance of the Trust shall not operate to
terminate the same nor entitle the representative of any deceased Shareholder to
an accounting or to take any action in court or elsewhere against the Trust or
the Trustees, but only to the rights of said decedent under this Trust.
Ownership of Shares shall not entitle the Shareholder to any
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title in or to the whole or any part of the Trust property or right to call for
a partition or division of the same or for an accounting, nor shall the
ownership of Shares constitute the Shareholders partners. Neither the Trust nor
the Trustees, nor any officer, employee or agent of the Trust shall have any
power to bind personally any Shareholder, nor except as specifically provided
herein to call upon any shareholder for the payment of any sum of money or
assessment whatsoever other than such as the Shareholder may at any time
personally agree to pay.
SHAREHOLDER INSPECTION RIGHTS
SECTION 7. Any Shareholder or his agent may inspect and copy during
normal business hours any of the following documents of the Trust: By-Laws,
minutes of the proceedings of the Shareholders and annual financial statements
of the Trust, including a statement of net assets and a statement of operations.
The foregoing rights of inspection of Shareholders of the Trust are the
exclusive and sole rights of the Shareholders with respect thereto and no
Shareholder of the Trust shall have, as a Shareholder, the right to inspect or
copy any of the books, records or other documents of the Trust except as
specifically provided in this Section 7 of this Article III or except as
otherwise determined by the Trustees.
ARTICLE IV
THE TRUSTEES
NUMBER, DESIGNATION, ELECTION, TERM, ETC.
SECTION 1. (a) INITIAL TRUSTEE. Upon his execution of this Declaration
of Trust or a counterpart hereof or some other writing in which he accepts such
Trusteeship and agrees to the provisions hereof, Xxxxxx X. Xxxxxxx shall
continue as sole Trustee hereof.
(b) NUMBER. The Trustees serving as such, whether named above or
hereafter becoming Trustees, may increase or decrease the number of Trustees to
a number other than the number therefore determined which number shall not be
less than three nor more than 15 except during the period that the initial
Trustee named above is sole Trustee. Except as determined from time to time by
resolution of the Trustees, no decrease in the number of Trustee shall have the
effect of removing any Trustee from office prior to the expiration of his term,
but the number of Trustees may be decreased in conjunction with the removal of a
Trustee pursuant to subsection (e) of this Section 1 of Article IV.
(c) TERM AND ELECTION. Each Trustee, whether named above or hereafter
becoming a Trustee, shall serve as a Trustee until the next meeting of
Shareholders or holders of Notes, if any, called for the purpose of considering
the election or re-election of such Trustee or of a successor to such Trustee,
and until the election and qualification of his successor, if any, elected at
such meeting, or until such Trustee sooner dies,
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resigns, retires or is removed. Upon the election and qualification of a new
Trustee, the Trust estate shall vest in the new trustee (together with the
continuing or other new Trustees) without any further act or conveyance. Prior
to any sale of Shares pursuant to any public offering, the initial Trustee named
above shall have the right to appoint other persons as Trustees each to serve
with such initial Trustee as aforesaid until the first meeting of Shareholders
called for the purpose of the election or re-election of such Trustee or of a
successor to such Trustee.
(d) RESIGNATION AND RETIREMENT. Any Trustee may resign his trust or
retire as a Trustee, by written instrument signed by him and delivered to the
other Trustees or the Chairman of the Board, if any, the President or the
Secretary of the Trust, and such resignation or retirement shall take effect
upon such delivery or upon such later date as is specified in such instrument.
(e) REMOVAL. Any Trustee may be removed for cause at any time by
written instrument, signed by at least a majority of the number of the Trustees
prior to such removal, specifying the date upon which such removal shall become
effective. Any Trustee may be removed with or without cause (i) by the vote of
the Shareholders or holders of Notes entitled to vote more than fifty percent
(50%) of the votes entitled to be cast on the matter voting at any meeting
called for such purpose, of (ii) by a written consent filed with the Secretary
of the Trust and executed by the Shareholders or holders of Notes entitled to
vote more than fifty percent (50%) of the votes entitled to be cast on the
matter.
Whenever ten or more Shareholders of record or holders of Notes who
have been such for at least six months preceding the date of application, and
who hold in the aggregate Shares or Notes constituting at least one percent of
the outstanding Shares or Notes of the Trust entitled to vote on the matter,
shall apply to the Trustees in writing stating that they wish to communicate
with other Shareholders or holders of Notes entitled to vote on the matter with
a view to obtaining signatures to a request for a meeting to consider removal of
a Trustee and accompanied by a form of communication and request that they wish
to transmit, the Trustees shall within five business days after receipt of such
application inform such applicants as to the approximate cost of mailing to the
Shareholders of record or holders of Notes entitled to vote on the matter the
proposed communication and form of request. Upon the written request of such
applicants, accompanied by a tender of the material to be mailed and of the
reasonable expenses of mailing, the Trustees shall, with reasonable promptness,
mail such material to all Shareholders of record or holders of Notes entitled to
vote on the matter at their addresses as recorded on the books of the Trust.
Notwithstanding the foregoing, the Trustees may refuse to mail such material on
the basis and in accordance with the procedures set forth in the last two
paragraphs of Section 16(c) of the 1940 Act.
(f) VACANCIES. Any vacancy or anticipated vacancy resulting from any
reason, including without limitation the death, resignation, retirement, removal
or in capacity of any of the Trustees, or resulting from an increase in the
number of Trustees by the other Trustees, may (but so long as there are at least
three remaining Trustees, need not unless required by the 0000 Xxx) be filled
either by a majority of the
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remaining Trustees, even if less than a quorum, through the appointment in
writing of such person as such remaining Trustees in their discretion shall
determine or, whenever deemed appropriate by the remaining Trustees, by the
election by the Shareholders or the holders of Notes entitled to vote on the
matter, at a meeting called for such purpose, or a person to fill such vacancy.
Upon the appointment or election and qualification of a new Trustee as aforesaid
the Trust estate shall vest in new Trustee, together with the continuing
Trustees, without any further act or conveyance, except that any such
appointment or election in anticipation of a vacancy to occur by a sign of
retirement, resignation or increase in number of Trustees to be effective at a
later date shall become effective only at or after the effective date of said
retirement, resignation, or increase in number of Trustees.
(g) MANDATORY ELECTION BY SHAREHOLDERS. Notwithstanding the foregoing
provisions (a) through (f) of this Section 1 of Article IV, the Trustees shall
call a meeting of the Shareholders or the holders of Notes entitled to vote on
the matter for the election of one or more Trustees at such time or times as may
be required in order that the provisions of the 1940 Act, any resolution of the
Trustees which authorizes the issuance of a class of shares of beneficial
interest other than Common Shares or any resolution of the Trustees which
authorizes the issuance of Notes under Article IV, Section 2(1) may be complied
with, and the authority hereinabove provided for the Trustees to appoint any
successor Trustee or Trustees shall be restricted if such appointment would
result in failure of the Trust to comply with any provision of the 1940 Act; any
resolution of the Trustees which authorizes the issuance of a class of shares of
beneficial interest other than Common Shares or any resolution of the Trustees
which authorizes the issuance of Notes under Article IV, Section 2(1).
(h) EFFECT OF DEATH, RESIGNATION, ETC. The death, resignation,
retirement, removal or incapacity of the Trustees, or any one of them, shall not
operate to annual or terminate the Trust or to revoke or terminate any existing
agency or contract created or entered into pursuant to the terms of this
Declaration of Trust.
(i) NO ACCOUNTING. Except under circumstances which would justify his
removal for cause, no person ceasing to be a Trustee as a result of his death,
resignation, retirement, removal or incapacity (nor the estate of any such
person) shall be required to make an accounting to the Shareholders or remaining
Trustees under such cessation.
POWERS
SECTION 2. The Trustees, subject only to the specific limitations
contained in this Declaration of Trust, limitations otherwise imposed by the
1940 Act, limitations imposed by any other applicable law or limitations imposed
by any resolution of the Trustees which authorizes the issuance of a class of
shares of beneficial interest other than Common Shares, shall have, without
further or other authorization and free from any power or control of the
Shareholders, full, absolute and exclusive power, control and authority over the
Trust, assets and the business and affairs of the Trust to the same extent as if
the Trustees were the sole and absolute owners thereof in their own right and to
do all such acts and things as in their sole judgment and discretion are
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necessary and incidental to, or desirable for the carrying out of any of the
purposes of the Trust or conducting the business of the Trust. Any determination
made in good faith by the Trustees of the purposes of the Trust or the existence
of any power or authority hereunder shall be conclusive. In construing the
provisions of this Declaration of Trust, there shall be a presumption in favor
of the grant of power and authority to the Trustees. Without limiting the
foregoing, the Trustees may adopt By-Laws not inconsistent with this Declaration
of Trust containing provisions relating to the business of the Trust, the
conduct of its affairs, its rights or powers and the rights or powers of its
Shareholders, Trustees, officers, employees and other agents and may amend and
repeal such By-Laws to the extent that such By-laws do not reserve that right to
the Shareholders; fill vacancies in their number, including vacancies resulting
from increase in their number, unless a vote of the Trust's Shareholders is
required to fill such vacancies pursuant to the 1940 Act, any resolution of the
Trustees which authorizes the issuance of a class of shares of beneficial
interest other than Common Shares or any resolution of the Trustees which
authorized the issuance of Notes under Article IV, Section 2(1); elect and
remove such officers and appoint and terminate such agents as they consider
appropriate; appoint from their own number, and terminate, any one or more
committees consisting of two or more Trustees, including an executive committee
which may, when the Trustees are not in session, exercise some or all of the
powers and authority of the Trustees as the Trustees may determine; appoint an
advisory board the members of which shall not be Trustees and need not be
Shareholders; employ one or more investment advisers or managers as provided in
Section 6 of this Article IV; employ one or more custodians of the assets of the
Trust and authorize such custodians to employ administrators as provided in
Section 6 of this Article IV; employ one or more subcustodians and to deposit
all or any part of such assets in a system or systems for the central handling
of securities; retain transfer agents or a Shareholder services agents, or both;
provide for the distribution of Shares by the Trust, through one or more
principal underwriters or otherwise; set record dates for the determination of
Shareholders with respect to various matters; and in general delegate such
authority as they consider desirable to any officer of the Trust, to any
committee of the Trustees and to any agent or employee of the Trust or any such
custodian or underwriter.
In furtherance of and not in limitation of the foregoing, the Trustees
shall have power and authority:
(a) To invest and reinvest in, to buy or otherwise acquire, to hold,
for investment or otherwise, to sell or otherwise dispose of, to lend or to
pledge, to trade in or deal in securities or interests of all kinds, however
evidenced, or obligations of all kinds, however evidenced, or rights, warrants,
or contracts to acquire such securities, interests, or obligations, of any
private or public company, corporation, association, general or limited
partnership, trust or other enterprise or organization, foreign or domestic, or
issued or guaranteed by any national or state government, foreign or domestic,
or their agencies, instrumentalities or ____________ but not limited to, bond,
debentures, bills, time notes and all other _____ of indebtedness); negotiable
or non-negotiable instruments; any and all futures contracts; government
securities and money market instruments (including but not limited to, bank
certificates of deposit, finance paper, commercial paper, bankers acceptances
and all kinds of repurchase agreements);
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(b) To invest and reinvest in, to buy or otherwise acquire, to hold,
for investment or otherwise, to sell or otherwise dispose of foreign currencies
and funds and exchanges, and make deposits in banks, savings banks, trust
companies, and savings and loan association, foreign or domestic;
(c) 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, and any interest therein;
(d) To sell, exchange, lend, pledge, mortgage, hypothecate, write
options on and lease any or all of the assets of the Trust;
(e) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and deliver
proxies or power of attorney to such person or persons as the Trustees shall
deem proper, granting to such person or persons such power and discretion with
relation to securities or property as the Trustees shall deem proper;
(f) To exercise powers and rights of subscription or otherwise which
in any manner arise out of ownership of securities;
(g) To hold any security or property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form, or in the name
of the Trustees or of the Trust or in the same of a custodian, subcustodian or
other depositary or a nominee or nominees or otherwise;
(h) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer, any security or property
of which is or was held in the Trust; to consent to any contract, lease,
mortgage, purchase or sale of property by such corporation or issuer, and to pay
calls or subscriptions with respect to any security held in the Trust;
(i) 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;
(j) 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;
(k) To enter into joint ventures, general or limited partnerships or
any other combinations or associations;
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(l) To borrow funds;
(m) To endorse or guarantee the payment of any notes or other
obligations of any person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof; and to mortgage and pledge the
Trust property or any part thereof to secure any of or all such obligations;
(n) To purchase and pay for entirely out of Trust property such
insurance as they may deem necessary or appropriate for the conduct of the
business, including, without limitation, insurance policies insuring the assets
of the Trust and payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, investment advisers or managers, principal
underwriters, or independent contractors of the Trust individually against all
claims and liabilities of every nature arising by reason of holding, being or
having held any such office or position, or by reason of any action alleged to
have been taken or omitted by any such person as Shareholder, Trustee, officer,
employee, agent, investment adviser or manager, principal underwriter, or
independent contractor, including any action taken or omitted that may be
determined to constitute negligence, whether or not the Trust would have the
power to indemnify such person against such liability; and
(o) To pay pensions for faithful service, as deemed appropriate by the
Trustees, and to adopt, establish, and carry out pension, profit-sharing, share
bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans, trusts and provisions, including the purchasing of life insurance
and annuity contracts as a means of providing such retirement and other
benefits, for any or all of the Trustees, officers, employees and agents of the
Trust.
The Trustees shall not in any way be bound or, limited by any present
or future law or custom in regard to investments by trustees of common law
trusts. Except as otherwise provided herein or from time to time in the By-laws,
any action to be taken by the Trustees may be taken by a majority of the
Trustees present at a meeting of Trustees (if a quorum be present), within or
without Massachusetts, including any meeting held by means of a conference
telephone or other communications equipment by means of which all persons
participating in the meeting can communicate with each other simultaneously and
participation by such means shall constitute presence in person at a meeting, or
by written consents of a majority of the Trustees then in office.
PAYMENT OF EXPENSES, ALLOCATION OF LIABILITIES
SECTION 3. The Trustees are authorized to pay or to cause to be paid
out of the principal or income of the Trust, or partly out of principal and
partly out of income, as they deem fair, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the Trust, or in connection
with the management thereof, including, but not limited to, the Trustees
compensation and such expenses and charges for the service of the Trust's
officers, employees, investment adviser or manager,
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principal underwriter, auditor, counsel, custodian, transfer agent, shareholder
servicing agent, and such other agents or independent contractors and such other
expenses and charges as the Trustees may deem necessary or proper to incur.
SECTION 4. The Trustees shall have the power, as frequently as they
may determine, to cause each shareholder to pay directly, in advance or arrears,
for charges for the Trust's custodian or transfer or Shareholder service 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.
OWNERSHIP OF ASSETS OF THE TRUST
SECTION 5. Title to all of the assets of the Trust shall at all times
be considered as vested in the Trustees.
ADVISORY AND/OR MANAGEMENT AGREEMENT, DISTRIBUTION AGREEMENT, ADMINISTRATION
AGREEMENT, SERVICES.
SECTION 6. Subject to a favorable vote of a majority of the
outstanding voting securities of the Trust; the Trustees may, at any time from
time to time, contract for exclusive or nonexclusive advisory, and/or management
services with a corporation, trust, association or other organization, every
such contract to comply with such requirements and restrictions as may be set
forth in the By-Laws; and any such contract may contain such other terms
interpretive of or in addition to said requirements and restrictions as the
Trustees may determine, including, without limitation, authority to determine
from time to time what investments shall be purchased, held, sold or exchanged
and what portion, if any, of the assets of the Trust shall be held uninvested
and to make changes in the Trust's investments.
The Trustees may also at any time and from time to time, contract with
a corporation, trust, association or other organization, appointing it,
exclusive or nonexclusive distributor or principal underwriter for the Shares
and/or Administrator for the Fund in connection with such services as the
Trustees deem appropriate, every such contract to comply with such requirements
and restrictions as may be set forth in the By-Laws; and any such contract may
contain such other terms interpretive of or in addition to said requirements and
restrictions as the Trustees may determine.
The fact that:
(a) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager, adviser,
principal underwriter, or distributor or agent of or for any corporation, trust,
association, or other organization, or of or for any parent or affiliate of any
organization, with which an advisory management or administrative or principal
underwriter's or distributor's
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contract, or transfer, shareholder services or other agency contract may have
been or may hereafter be made, or that any such organization, or any parent or
affiliate thereof, is a Shareholder or has an interest in the Trust, or that
(b) any corporation, trust, association or other organization with
which an advisory, management or administrative or principal underwriter's or
distributor's contract, or transfer, shareholder services or other agency
contract may have been or may hereafter be made also has as an advisory,
management or administrative contract, or principal underwriter's or
distributor's contract, or transfer, shareholder services or other agency
contract with one or more other corporations, trusts, associations, or other
organizations, or has other business or interests shall not affect the validity
of any such contract or disqualify any Shareholder, Trustee or officer of the
Trust from voting upon or executing the same or create any liability or
accountability to the Trust or its Shareholders.
ARTICLE V
SHAREHOLDERS VOTING POWERS AND MEETINGS
VOTING POWERS
SECTION 1. The Shareholders shall have power to vote only: (a) for the
election or removal of Trustees as provided in Article IV, Section 1; (b) with
respect to any investment adviser or manager as provided in Article IV, Section
6; (c) with respect to any termination or reorganization of the Trust to the
extent and as provided in Article IX, Section 1; (d) with respect to any
amendment of this Declaration of Trust to the extent and as provided in Article
IX, Section 4; (e) with respect to any conversion of the Massachusetts business
corporation as to whether or not a court action, proceeding or claim should or
should not be brought or maintained derivatively or as a class action on behalf
of the Trust or the Shareholders; and (g) with respect to such additional
matters relating to the Trust as may be required by law, the 1940 Act, this
Declaration of Trust, the By-Laws, any resolution of the Trustees which
authorizes the issuance of a class of shares of beneficial interest other than
Common Shares, any registration of the Trust with the Securities and Exchange
Commission (or any successor agency) or any state, or as the Trustees may
consider necessary or desirable. In addition, the holders of any Notes issued
under Article IV, Section 2(1) shall have the power to vote only with respect to
such matters as may be required by law, the 1940 Act or any resolution of the
Trustees which authorizes the issuance of such Notes.
Each whole Share and each Note 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 and Notes may be voted in person or by
proxy.
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A proxy with respect to Shares or Notes held in the name of two or
more persons shall be valid if executed by any one of them unless at or prior to
the exercise of the proxy the Trust receives a specific written notice to the
contrary from any one of them. A proxy purporting to be executed by or on behalf
of a Shareholder or the holder of a Note shall be declared valid unless
challenged at or prior to its exercise and the burden of proving invalidity
shall rest on the challenger.
Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required by law, this Declaration of Trust
or by the By-Laws to be taken by Shareholders.
SHAREHOLDERS' MEETINGS
SECTION 2. Meetings of Shareholders or the holders of Notes may be
called and held from time to time for the purpose of taking action upon any
matter requiring the vote of authority of the Shareholders or the holders of
Notes as herein provided or upon any other matter deemed by the Trustees to be
necessary or desirable. Such meetings shall be held at the principal office of
the Trust as set forth in the By-Laws of the Trust, or at any such other place
within the United States as may be designated in the call thereof, which call
shall be made by the Trustees or the President of the Trust. Meetings of
Shareholders or the holders of Notes may be called by the Trustees or such other
person or persons as may be specified in the By-Laws upon written application by
Shareholders or the holders of Notes holding at least twenty-five percent (25%)
(or ten percent (10%) of the Shares or Notes if the purpose of the meeting is to
determine if a Trustee is to be removed from office) of the Shares or Notes then
outstanding and entitled to vote on the matter requesting a meeting be called
for a purpose requiring action by the Shareholders or the holders of Notes as
provided herein, in any resolution of the Trustees which authorizes the issuance
of a class of shares of beneficial interest other than Common Shares, in any
resolution of the Trustees which authorizes the issuance of Notes under Article
IV, Section 2(1) or in the By-Laws, which purpose shall be specified in any such
written application.
Shareholders or the holders of Notes shall be entitled to least seven
days written notice of any meeting of the Shareholders or the holders of Notes.
QUORUM AND REQUIRED VOTE
SECTION 3. The presence at a meeting of Shareholders or the holders of
Notes in person or by proxy of Shareholders or the holders of Notes entitled to
vote at least thirty percent (30%) of all votes entitled to be cast at the
meeting shall be a quorum for the transaction of business at a meeting of,
Shareholders or the holders of Notes. Any lesser number, however, shall be
sufficient for adjournments. Any adjourned sessions or sessions may be held
within a reasonable time after the date set for the original meeting without the
necessity of further notice.
Except when a larger vote is required by any provisions of the 1940
Act, this Declaration of Trust, any resolution of the Trustees which authorizes
the issuance of
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a class of shares of beneficial interest other than Common Shares any resolution
or the Trustees which authorizes the issuance of Notes under Article IV; Section
2(1) or the By-Laws, the vote of a majority of the Shares or Notes entitled to
vote on a matter shall decide such matter and the vote of a plurality of the
Shares or Notes entitled to vote shall elect a Trustee.
ACTION OF WRITTEN CONSENT
SECTION 4. Any action taken by Shareholders or the holders of Notes
may be taken without a meeting if Shareholders or the holders of Notes entitled
to vote more than fifty percent (50%) of the votes entitled to be cast on the
matter consent to the action in writing and such written consents are filed with
the records of the meetings of Shareholders or the holders of Notes. Such
consent shall be treated for all purposes as a vote taken at a meeting of
Shareholders or the holders of Notes.
ADDITIONAL PROVISIONS
SECTION 5. The By-Laws, any resolution of the Trustees which
authorizes the issuance of a class of shares of benefecial interest other than
Common Shares and any resolution of the Trustees which authorizes the issuance
of Notes under Article IV, Section 2(1) may include and the Trustees may
determine further provisions for votes and meetings of Shareholders or the
holders of Notes and related matters not inconsistent with the provisions
hereof.
ARTICLE VI
DISTRIBUTIONS, REPURCHASES, TENDERS AND OTHER SHARE ACQUISITIONS
DISTRIBUTIONS
SECTION 1. The Trustees may in their sole discretion from time to time
distribute to the Shareholders such income and gains accrued or realized, as the
Trustees may determine, after providing for actual and accrued expenses and
liabilities (including such reserves as the Trustees may establish) determined
in accordance with this Declaration of Trust and good accounting practices. The
Trustees shall have full discretion to determine which items shall be treated as
income and which items as capital and their determination shall be binding upon
the Shareholders. Distributions, if any be made, shall be in Shares, in cash or
otherwise and on a date or dates determined by the Trustees. At any time and
from time to time in their discretion, the Trustees may distribute to the
Shareholders as of a record date or dates determined by the Trustees, in Shares,
in cash or otherwise all or part of any gains realized on the sale or
disposition of property of the Trust or otherwise, or all or part of any other
principal of the Trust. Each distribution of Common Shares pursuant to this
Section 1 shall be made ratably according to the number of Common Shares held by
the several Common Shareholders on the applicable record date. Any distribution
to Common Shareholders paid in Common Shares will be paid at the net asset value
thereof as determined in accordance with this
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Declaration of Trust or at such other value as may be specified by the By-Laws
or as the Trustees may from time to time determine, subject to applicable laws
and regulations then in effect. The Trustees have the power, in their
discretion, to distribute for any year an amount sufficient to enable the Trust
to qualify as a "regulated investment company" under the Internal Revenue Code
of 1986 amended (or any successor thereto) to avoid any liability for federal
income tax in respect of that year.
DETERMINATION OF NET ASSET VALUE
SECTION 2. The term "net asset value" of each Common Share as of any
particular time shall be the quotient obtained by dividing the value, as of such
time, of the net assets of the Trust (i.e., the value of the assets of the Trust
less the liabilities of the Trust, exclusive of liabilities represented by the
Common Shares of the Trust, less the liquidation value of all shares outstanding
which were issued pursuant to a resolution of the Trustees which authorizes the
issuance of a class of shares of beneficial interest other than Common Shares)
by the total number of Common Shares outstanding at such time, all determined
and computed in accordance with the Trust's current prospectus with respect to
the Common Shares.
The Trustees, or any officer, of officer or agent of the Trust
designated for the purpose by the Trustees shall determine the net asset value
of the Common Shares and the Trustees shall fix the time or times as of which
the net asset value of the Shares shall be determined and shall fix the periods
during, which any such net asset value shall be effective as to sales, and other
transactions in the Common Shares, except as such times and periods for any such
transaction may be fixed by other provisions of this Declaration of Trust or by
the By-Laws.
Determinations in accordance with this Section 2 made in good faith
shall be binding on all parties concerned.
REPURCHASES, TENDERS AND OTHER SHARE ACQUISITIONS
SECTION 3. Shares of the Trust may be reacquired by the Trust through
repurchases in the open market, through tender offers to Shareholders under such
conditions as the Trustees deem appropriate, or by other acquisitions of any
nature deemed desirable or in the best, interest of the Trust.
ARTICLE VII
COMPENSATION AND LIMITATION OF LIABILITY OF COMPENSATION
SECTION 1. The Trustees as such shall be entitled to reasonable
compensation from the Trust if the rate thereof is prescribed by such Trustees.
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, it being recognized that such employment
may result in such Trustee being considered an Affiliated Person or an
Interested Person.
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LIMITATION OF LIABILITY
SECTION 2. The Trustees shall not be responsible or liable in any
event for any neglect or wrongdoing of any officer, agent, employee, investment
advisor or manager, principal underwriter or custodian, nor shall any Trustee be
responsible for the act or omission of any other Trustee. Nothing in this
Declaration of Trust shall protect any Trustee against any liability to which
such Trustee would otherwise by subject by reason of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee.
Every note, bond, contract, instrument, certificate, Share or
undertaking and every other act or thing whatsoever executed or done by or on
behalf of the Trust or the Trustees or any of them in connection with the
Trustee shall be conclusively deemed to have been executed or done only in or
with respect to their or his capacity as Trustees or Trustee and neither such
Trustees or Trustee nor the Shareholders shall be personally liable thereon.
Every note, bond, contract, instrument, certificate, or undertaking
made or issued by the Trustees or by any officers or officer shall give notice
that this Declaration of Trust is on file with the Secretary of State of The
Commonwealth of Massachusetts and shall recite that the same was executed or
made by or on behalf of the Trust by them as Trustees or Trustee or as offices
or officer and not individually and that the obligations of such instrument are
not binding upon any of them or the Shareholders individually but are binding
only upon the assets and property of the Trust and may contain such further
recital as he or they may deem appropriate, but the omission thereof shall not
operate to bind any Trustees or Trustee or officers or officer or Shareholders
or Shareholder individually.
All persons extending credit to, contracting with or having any claim
against the Trust shall look only to the assets of the Trust for payment under
such credit, contract or claim; and neither the Shareholders nor the Trustees,
nor any of the Trust's officers, employees or agents, whether past, present or
future, shall be personally liable therefore.
TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY
SECTION 3. The exercise by the Trustees of their powers and
discretions hereunder shall be binding upon everyone interested. A Trustee shall
be liable only for his own willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of the office of
Trustee, and for nothing else, and shall not be liable for errors of judgment or
mistakes of fact or law. The Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this Declaration of Trust
and their duties as Trustees hereunder, and shall be under liability for any act
or omission in accordance with such advice or for failing to follow such advice.
In discharging their duties, the Trustees, when acting in good faith, shall be
entitled to rely upon the books of account of the trust and upon written reports
made to
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the Trustees by any officer appointed by them, any independent public accountant
and (with respect to the subject matter of the contract involved) any officer,
partner or responsible employee of any other party to any contract entered into
pursuant to Section 2 or Section 6 of Article IV. The Trustees shall not be
required to give any bond as such, nor any surety if a bond is required.
LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES
SECTION 4. No person dealing with the Trustees shall be bound to make
any inquiry concerning the validity of any transaction made or to be made by the
Trustees or to see to the application of any payments made or property
transferred to the Trust or upon its order.
ARTICLE VIII
INDEMNIFICATION
Subject to the exceptions and limitations contained in this Article,
every person who is, or has been, a Trustee or, officer of the Trust (including
persons who serve at the request of the Trust as directors, officers or trustees
of another organization in which the Trust has an interest as a shareholder,
creditor or otherwise) hereinafter referred to as a "Covered Person", shall be
indemnified by the Trust 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 such a
Trustee, director or officer and against amounts paid or incurred by him in
settlement thereof.
No indemnification shall be provided hereunder to a Covered Person:
(a) against any liability to the Trust or its Shareholders by reason
of a final adjudication by the court or other body before which the proceeding
was brought that he engaged in willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of his office;
(b) with respect to any matter as to which he shall have been finally
adjudicated not to have acted in good faith in the reasonable belief that his
action was in the best interests of the Trust; or
(c) in the event of a settlement or other disposition not involving a
final adjudication (as provided in paragraph (a) or (b)) and resulting in a
payment by a Covered Person, unless there has been either 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 by the court or other body approving the settlement or other disposition
or a reasonable determination, based on a review of readily available facts (as
opposed to a full trial-type inquiry) that he did not engage in such conduct:
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(i) by a vote of a majority of the Disinterested Trustees acting on
the matter (provided that a majority of the Disinterested Trustees then in
office act on the matter); or
(ii) by written opinion of independent legal counsel.
The rights of indemnification herein provided may be insured against
by policies maintained by the Trust, shall be severable, shall not affect any
other rights to which any Covered Person may now or thereafter be entitled,
shall continue as to a person who has ceased to be such a Covered Person and
shall insure to the benefit of the heirs, executors and administrators of such a
person. Nothing contained herein shall affect any rights to indemnification to
which Trust personnel other than Covered Persons may be entitled by contract or
otherwise under law.
Expenses of preparation and presentation of a defense to any claim,
action, suit or proceeding subject to a claim for indemnification under his
Article VIII shall be advanced by the Trust prior to final disposition thereof
upon receipt of an undertaking by or on behalf of the recipient to repay such
amount if it is ultimately determined that he is not entitled to indemnification
under this Article VIII, provided that either:
(a) such undertaking is secured by a surety bond or some other
appropriate security or the Trust shall be insured against losses arising out of
any such advances; or
(b) a majority of the Disinterested Trustees acting on the matter
(provided that a majority of the Disinterested Trustees then in office act on
the matter) or independent legal counsel in a written opinion shall determine
based upon a review of the readily available facts (as opposed to a full
trial-type inquiry) that there is reason to believe that the recipient
ultimately will be found entitled to indemnification.
As used in this Article VIII, a "Disinterested Trustee" is one (a) who
is not an Interested Person of the Trust (including anyone who has been exempted
from being an Interested Person by any rule, regulation or order of the
Commission), and (b) against whom none of such actions, suits or other
proceedings or another action, suit or other proceeding on the same or similar
grounds is then or has been pending.
As used in this Article VIII, the words "claim", "action", "suit" or
"proceeding" shall apply to all claims, actions, suits, 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.
In case any Shareholders or former Shareholder shall be held to be
personally liable solely by reason of his or her being or having been a
Shareholder and not because of his or her acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his or her heirs, executors,
administrators or other entity, its
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corporate or other general successor) shall be entitled to be held harmless from
and indemnified against all loss or expense arising from such liability but only
out of the assets of the Trust; provided, however, there shall be no liability
or obligation of the Trust arising hereunder to reimburse any Shareholder for
taxes paid by reason of such Shareholder's ownership of Shares or for losses
suffered by reason of any changes in value of any Trust assets.
ARTICLE IX
MISCELLANEOUS
DURATION, TERMINATION AND REORGANIZATION OF TRUST
SECTION 1. Unless terminated as provided herein, the Trust shall
continue without limitation of time. The Trust may be terminated at any time by
the Trustees by written notice to the Shareholders without a vote of the
shareholders of the Trust or by the vote of the Shareholders entitled to vote
more than fifty percent (50%) of the votes entitled to be cast.
Subject to any requirements of the 1940 Act, upon termination of the
Trust after paying or otherwise providing for all charges, taxes, expenses and
liabilities, whether due or accrued or anticipated; the Trust shall in
accordance with such procedures as the Trustees consider appropriate reduce the
remaining assets of the Trust to distributable form in cash or other securities,
or any combination thereof, and distribute the proceeds to the holders of
classes of shares of beneficial interest in the Trust, other than Common Shares,
which have been authorized by resolution of the Trustees, in the manner set
forth by such resolution, and to the Common Shareholders, ratably according to
the number of Common Shares of the Trust held by the several Common Shareholders
of the Trust on the date of termination.
At any time by the affirmative vote of the Shareholders of the Trust
entitled to vote more than fifty percent (50%) of the votes entitled to be cast,
the Trustees may sell, convey and transfer the assets of the Trust, to another
trust, partnership, association or corporation organized under the laws of any
state of the United states in exchange for cash, shares or other securities with
such transfer being made subject to, or with the assumption by the transferee
of, the liabilities belonging to the the Trust. Following such transfer, the
Trustees shall distribute such cash, shares or other securities among the
Shareholders of the Trust, and if all of the assets of the Trust have been so
distributed, the Trust shall be terminated.
FILING OF COPIES, REFERENCES, HEADINGS
SECTION 2. The original or a copy of this instrument and of each
amendment hereto shall be kept at the office of the Trust where it may be
inspected by any Shareholder. A copy of this instrument and of each amendment
hereto shall be filled by the Trust with the Secretary of State of The
Commonwealth of Massachusetts and with
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the Boston City Clerk, as well as any other governmental office where such
filing may from time to time be required. Anyone dealing with the Trust may rely
on a certificate by an officer of the Trust as to whether or not any such
amendments have been made and as to any matters in connection with the Trust
hereunder; and with the same effect as if it were the original, may rely on a
copy certified by an officer of the Trust to be a copy of this instrument or of
any such amendments. In this instrument and in any such amendment, references to
this instrument, and all expressions like "herein", and "hereof", and
"hereunder", shall be deemed to refer to this instrument as amended from time to
time. Headings are placed herein for convenience of reference only and shall not
be taken as a part hereof or control or affect the meaning, construction or
effect of this instrument. The instrument may be executed in any number of
counterparts each of which shall be deemed an original.
APPLICABLE LAWS.
SECTION 3. This Declaration of Trust is made in the Commonwealth of
Massachusetts and it is created under and is to be governed by and construed and
administered according to the laws of said Commonwealth. The Trust shall be of
the type commonly called a Massachusetts business trust, and without limiting
the provisions hereof, the Trust may exercised all powers which are ordinarily
excercised by such a trust.
AMENDMENTS
SECTION 4. This Declaration of Trust may be amended at any time by an
instrument in writing signed by a majority of the then Trustees when authorized
so to do by vote of Shareholders holding more than fifty percent (50%) of the
Shares entitled to vote. Amendments having the purpose of changing the name of
the Trust or of supplying any omission, during any ambiguity or curing,
correcting or supplementing any provision which is defective or inconsistent
with the 1940 Act or with the requirements of Internal Revenue Code of 1986 and
the regulations thereunder for the Trust's obtaining the most favorable
treatment thereunder available to regulated investment companies shall not
require authorization by Shareholder vote.
CONVERSION
SECTION 5. If any class of Shares of the Trust which are listed on one
or more securities exchanges have traded on the principal securities exchanges
where listed at an average discount from net assert value of more than ten
percent (10%), determined on the basis of the discount as of the end of the last
trading day in each week during the period of twelve (12) calendar weeks
preceding January 1, 1994, the Trustees will submit to the Shareholders at the
next succeeding meeting, a proposal to convert the Trust from a "closed-end
company" to an "open-ended company" as those terms are defined in Sections
5(a)(2) and 5(a)(1), respectively, of the 1940 Act as in effect on January 9,
1989, together with the necessary amendments to this Declaration of Trust to
permit such a conversion. The Trustees may at any time propose conversion of the
Trust to an open-end company depending on their judgement as to the advisability
of such action in light of circumstances then prevailing. Upon the adoption of
such proposal and related amendments by a vote of a majority of the outstanding
voting securities of the Trust, the
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Trust shall, upon complying with any requirements of the 1940 Act, any
applicable state law and any resolution of the Trustees which authorizes the
issuance of a class of shares of beneficial interest other than Common Shares,
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.
The Principal Location of the Trust is:
000 Xxxxx Xxxxxxx Xx.
Xxxxxxx, XX 00000
The Principal adress of the sole Trustee is:
Xxxxxx X. Xxxxxxx
000 Xxxxx
Xxxx Xxxxx, XX 00000
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IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal
for himself and his assigns, as of the day and year first above written.
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, Sole Trustee
STATE OF ILLINOIS
County of Xxxx, xx.
Then personally appeared the above-named Xxxxxx X. Xxxxxxx who
acknowledged the foregoing instrument to be his free act and deed, before me
this 9th day of January, 1989.
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Notary Public
My Commission Expires: _________________
OFFICIAL SEAL
XXXXXX X. XXXXXXX
NOTARY PUBLIC STATE OF ILLINOIS
MY COMMISSION NO. _____ 1992
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#4
Amendment & restated w/name change
Xxxxxx Multi-Market Income Trust
___________________________________
(formerly Known as: Xxxxxx Trust #8)
FEE PAID
JAN 13 1980 RECEIVED
(STAMP) JAN 13 1980
CASHIERS SECRETARY OF STATE
SECRETARY'S OFFICE CORPORATION DIVISION
/s/ XXXXXXX XXXXXXX XXXXXX
------------------------------
