EXHIBIT a.
AGREEMENT AND DECLARATION OF TRUST
OF
AIM SELECT REAL ESTATE INCOME FUND
WHEREAS, THIS AGREEMENT AND DECLARATION OF TRUST of AIM Select
Real Estate Income Fund, dated March 11, 2002, among Xxxxxx X. Xxxxxx, Xxxxx X.
Xxxxxxx and Xxxxx X. Xxxxx, as the Trustees, and each person who becomes a
Shareholder in accordance with the terms hereinafter set forth.
NOW, THEREFORE, the Trustees do hereby declare that all money
and property contributed to the trust hereunder shall be held and managed in
trust under this Agreement for the benefit of the Shareholders as herein set
forth below.
ARTICLE I
NAME, DEFINITIONS, PURPOSE AND CERTIFICATE OF TRUST
Section 1.1 Name. The name of the business trust established hereby is
AIM Select Real Estate Income Fund, and the Trustees may transact the Trust's
affairs in that name. The Trust shall constitute a Delaware business trust in
accordance with the Delaware Act.
Section 1.2 Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) "Affiliated Person," "Company," "Person," and "Principal
Underwriter" shall have the meanings given them in the 1940
Act, as modified by or interpreted by any applicable order or
orders of the Commission or any rules or regulations adopted
or interpretive releases of the Commission thereunder. The
term "Commission" shall have the meaning given it in the 1940
Act;
(b) "Agreement" means this Agreement and Declaration of Trust, as
it may be amended from time to time;
(c) "Bylaws" means the Bylaws referred to in Section 4.1(f), as
from time to time amended;
(d) "Cause" means that a Trustee has been found, in a final
determination, to have engaged in gross negligence, willful
misconduct or fraud, to have committed a material breach of
this Agreement or to have been convicted of a felony. For
purposes of this definition, "final determination" means (i) a
determination set forth in a binding settlement agreement
signed by the Trustee alleged to have committed an act
arguably justifying removal, (ii) if judicial relief is
permitted hereunder, a final judicial determination, not
subject to further appeal, by a court of competent
jurisdiction, or (iii) if arbitration is required by
applicable law, a final arbitral determination not subject to
further review;
(e) "Class" means a portion of Shares of the Portfolio established
in accordance with the provisions of Sections 2.3(b) and
2.3(c); provided, however, that with respect to the Class
designated as the Preferred Shares, all Preferred Series
thereof collectively shall be a part of, and included in, the
Class of Preferred Shares, and
no Preferred Series thereof shall be treated as a separate
Class for any purpose herein;
(f) "Common Shares" has the meaning specified in Sections 2.3(b)
and 2.3(c);
(g) "Covered Person" means a person who is or was a Trustee,
officer, employee or agent of the Trust, or is or was serving
at the request of the Trustees as a director, trustee,
partner, officer, employee or agent of a corporation, trust,
partnership, joint venture or other enterprise;
(h) The "Delaware Act" refers to the Delaware Business Trust Act,
12 Del. C. Section 3801 et seq., as such Act may be amended
from time to time;
(i) "fund complex" has the meaning specified in Regulation 14A
under the Securities Exchange Act of 1934, as amended from
time to time;
(j) "Governing Instrument" means collectively this Agreement, the
Bylaws, all amendments to this Agreement and the Bylaws and
every resolution of the Trustees or any committee of the
Trustees that by its terms is incorporated by reference into
this Agreement or stated to constitute part of the Trust's
Governing Instrument or that is incorporated herein by Section
2.3 of this Agreement;
(k) "Majority Shareholder Vote" means "the vote of a majority of
the outstanding voting securities" (as defined in the 0000
Xxx) of the Trust, Portfolio, or Class, as applicable;
(l) "Majority Trustee Vote" means the vote of a majority of the
Trustees;
(m) The "1940 Act" means the Investment Company Act of 1940, as
amended from time to time;
(n) "Outstanding Shares" means Shares shown on the books of the
Trust or its transfer agent as then issued and outstanding,
but excludes Shares of the Portfolio that the Portfolio or the
Trust has redeemed or repurchased;
(o) "Portfolio" means the series of Shares of the Trust, within
the meaning of Section 3804(a) of the Delaware Act,
established in accordance with the provisions of Section
2.3(a);
(p) "Preferred Series" means a portion of the Preferred Shares
established in accordance with the provisions of Section
2.3(c);
(q) "Preferred Shares" has the meaning specified in Section
2.3(c);
(r) "Preferred Share Trustees" has the meaning specified in
Section 3.2;
(s) "Principal Shareholder" has the meaning specified in Section
6.2(b);
(t) "Senior Securities" has the meaning specified in Section 2.8;
(u) "Shareholder" means a record owner of Outstanding Shares of
the Trust;
2
(v) "Shares" shall include the Common Shares and the Preferred
Shares, and means, as to the Portfolio or any Class thereof,
the equal proportionate transferable units of beneficial
interest into which the beneficial interest of the Portfolio
or such Class thereof shall be divided and may include
fractions of Shares in 1/1000th of a Share or integral
multiples thereof as well as whole Shares;
(w) The "Trust" means AIM Select Real Estate Income Fund, the
Delaware business trust established hereby;
(x) The "Trustees" means the Persons who have signed this
Agreement as trustees so long as they shall continue to serve
as trustees of the Trust in accordance with the terms hereof,
and all other Persons who may from time to time be duly
appointed as Trustee in accordance with the provisions of
Section 3.4, or elected as Trustee by the Shareholders, and
reference herein to a Trustee or to the Trustees shall refer
to such Persons in their capacity as Trustees hereunder; and
(y) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the
account of the Portfolio, or by the Trustees on behalf of the
Portfolio.
Section 1.3 Purpose. The purpose of the Trust is to conduct, operate
and carry on the business of a management investment company registered under
the 1940 Act through the Portfolio investing primarily in securities and other
Trust Property and to carry on such other business as the Trustees may from time
to time determine pursuant to their authority under this Agreement.
Section 1.4 Certificate of Trust. Immediately upon the execution of
this Agreement, the Trustees shall file a Certificate of Trust with respect to
the Trust in the Office of the Secretary of State of the State of Delaware
pursuant to the Delaware Act. From time to time, the Trustees shall cause such
Certificate of Trust to be amended to reflect changes in the composition of the
Trustees.
ARTICLE II
BENEFICIAL INTEREST
Section 2.1 Shares of Beneficial Interest. The Trust is authorized to
issue one series of beneficial interests within the meaning of Section 3804(a)
of the Delaware Act, which shall constitute the Trust's sole Portfolio. The
beneficial interests of the Portfolio shall be divided into an unlimited number
of Shares, with par value of $0.001 per Share. All Shares issued hereunder,
including without limitation, Shares issued in connection with a dividend or
other distribution in Shares or a split or reverse split of Shares, shall be
fully paid and nonassessable.
Section 2.2 Issuance of Shares. Except as otherwise provided for
herein, the Trustees in their discretion may, from time to time, without vote of
the Shareholders, issue Shares, in addition to the then issued and Outstanding
Shares, to such party or parties and for such amount and type of consideration,
subject to applicable law, including cash or securities, at such time or times
and on such terms as the Trustees may deem appropriate, and may in such manner
acquire other assets (including the acquisition of assets subject to, and in
connection with, the assumption of liabilities) and businesses. In connection
with any issuance of Shares, the Trustees may issue fractional Shares. The
Trustees may from time to time divide or
3
combine the Shares into a greater or lesser number without thereby changing the
proportionate beneficial interests in the Portfolio. Contributions to the Trust
may be accepted for, and Shares shall be redeemed or repurchased as, whole
Shares and/or 1/1,000th of a Share or integral multiples thereof.
Section 2.3 Establishment of Portfolio and Classes.
(a) The Trustees hereby establish and designate as the Trust's
sole Portfolio the AIM Select Real Estate Income Fund. The
Shares of the Portfolio shall have the relative rights and
preferences provided for herein and such rights and
preferences as may be designated by the Trustees in any
amendment or modification to the Trust's Governing Instrument.
The Trust shall maintain separate and distinct records for the
Portfolio and shall hold and account for the Trust Property
belonging thereto.
(b) The Portfolio of the Trust shall initially have one Class,
with an unlimited number of Shares. The Trustees hereby
establish and designate for the Portfolio, as the Portfolio's
initial Class, Shares, having the powers, preferences, rights,
qualifications, limitations and restrictions described in
Sections 2.5 and 2.6 (the "Common Shares"). Expenses, costs,
charges, and reserves allocated to a Class in accordance with
Section 2.5(c) shall be borne solely by that Class. Dividends
declared and payable to the Common Shares pursuant to Section
7.1 shall reflect the items separately allocated thereto
pursuant to the preceding sentence.
(c) The Trustees may at any time establish an additional Class of
Shares of the Portfolio, with an unlimited number of Shares
unless otherwise specified, and generally having the powers,
rights, qualifications, limitations and restrictions described
in Sections 2.5 and 2.7 (the "Preferred Shares"). Such
Preferred Shares shall be established by the adoption of one
or more resolutions by the Trustees. Each such resolution is
hereby incorporated herein by this reference and made a part
of the Governing Instrument whether or not expressly stated in
such resolution, and shall be effective upon the occurrence of
the date stated therein (or, if no such date is stated, upon
the date of such adoption). The Trustees also may establish
one or more Preferred Series of the Preferred Shares in
accordance with the provisions of Section 18(c) of the 1940
Act, each with an unlimited number of Preferred Shares unless
otherwise specified (each, a "Preferred Series"). Each such
Preferred Series shall be established by the adoption of one
or more resolutions by the Trustees. Each such resolution is
hereby incorporated herein by this reference and made a part
of the Governing Instrument whether or not expressly stated in
such resolution, and shall be effective upon the occurrence of
the date stated therein (or, if no such date is stated, upon
the date of such adoption).
Section 2.4 Actions Affecting the Portfolio and Classes. Subject to the
right of Shareholders, if any, to vote pursuant to Section 6.1 and except as
otherwise provided for herein, the Trustees shall have full power and authority,
in their sole discretion without obtaining any prior authorization or vote of
the Shareholders of the Portfolio or any Class thereof, to establish and
designate and to change in any manner the Portfolio or any Class thereof; to fix
or change such preferences, voting powers, rights, and privileges of the
Portfolio or any Class thereof, as the Trustees may from time to time determine,
including any change that may
4
adversely affect a Shareholder; to divide or combine the Shares of the Portfolio
or any Class thereof into a greater or lesser number; to classify or reclassify
or convert any issued Shares of the Portfolio or any Class thereof into one or
more Classes of Shares of the Portfolio; and to take such other action with
respect to the Shares as the Trustees may deem desirable. The Portfolio and any
Class thereof may issue any number of Shares but need not issue any Shares. At
any time that there are no Outstanding Shares of the Portfolio or any Class
thereof previously established and designated, the Trustees may abolish the
Portfolio or that Class and the establishment and designation thereof.
Section 2.5 Relative Rights and Preferences. Unless the establishing
resolution or any other resolution adopted pursuant to Section 2.3 otherwise
provides, Shares of the Portfolio and any Class thereof established hereunder
shall have the following relative rights and preferences:
(a) Shareholders shall have no preemptive or other right to
subscribe to any additional Shares or other securities issued
by the Trust or the Trustees, whether of the same or other
Class.
(b) All consideration received by the Trust for the issue or sale
of Shares of the Portfolio, 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 and may be
referred to herein as "assets belonging to" the Portfolio. The
assets belonging to the Portfolio shall belong to the
Portfolio for all purposes, subject only to the rights of
creditors of the Portfolio.
(c) The Portfolio shall be charged with the liabilities of the
Portfolio, and all expenses, costs, charges and reserves
attributable to the Portfolio shall be borne by the Portfolio;
provided that the Trustees may, in their sole discretion,
allocate or authorize the allocation of particular expenses,
costs, charges, and/or reserves of the Portfolio to fewer than
all the Classes thereof. Any general liabilities, expenses,
costs, charges or reserves of the Portfolio that are not
readily identifiable as chargeable to or bearable by any
particular Class shall be allocated and charged by the
Trustees between or among any one or more of the Classes in
such manner as the Trustees in their sole discretion deem fair
and equitable. Each such allocation shall be conclusive and
binding upon the Shareholders for all purposes.
(d) Shares redeemed or repurchased by the Portfolio or the Trust
shall be deemed to be canceled.
(e) The Trust may issue Shares in fractional denominations of
1/1000th of a Share or integral multiples thereof to the same
extent as its whole Shares, and Shares in fractional
denominations shall be Shares having proportionately to the
respective fractions represented thereby all the rights of
whole Shares of the same Class, including without limitation,
the right to vote, the right to receive dividends and
distributions and the right to participate upon termination of
the Trust, but excluding the right to receive a certificate
representing fractional Shares.
5
All references to Shares in this Agreement shall be deemed to
be shares of the Portfolio, or Classes thereof, as the context may require. All
provisions herein relating to the Trust shall apply equally to the Portfolio,
and each Class thereof, except as the context otherwise requires. All references
to Preferred Shares in this Agreement shall be deemed to include any Preferred
Series thereof, and all provisions herein relating to the Preferred Shares shall
apply collectively to all Preferred Series thereof and shall not apply
separately to any such Preferred Series.
Section 2.6 Additional Rights and Preferences of Common Shares.
(a) Except as set forth in paragraph (c) of Section 2.5, each
Common Share shall represent an equal pro rata interest in the
assets belonging to the Portfolio and shall have identical
voting, dividend, liquidation and other rights, preferences,
powers, restrictions, limitations, qualifications and
designations and terms and conditions with each other Common
Share.
(b) Subject to the rights of the holders of the Preferred Shares,
if any, in the event of the termination of the Trust the
holders of the Common Shares shall be entitled to receive pro
rata the net distributable assets of the Portfolio.
(c) The holders of the Common Shares shall not, as such holders,
have any right to acquire, purchase or subscribe for any
Common Shares or securities of the Trust which it may
hereafter issue or sell, other than such right, if any, as the
Trustees in their discretion may determine.
(d) Subject to the rights of the holders of the Preferred Shares,
if any, dividends or other distributions, when, as and if
declared by the Trustees, shall be shared equally by the
holders of Common Shares on a Share for Share basis. The
Trustees may direct that any dividends or other distributions
or any portion thereof as declared and distributed shall be
paid in cash to the holder, or, alternatively, may direct that
any such dividends be reinvested in full and fractional Shares
of the Trust, if such holder elects to have them reinvested.
(e) Common Shares may be issued from time to time, without the
vote of the Shareholders (or, if the Trustees in their sole
discretion deem advisable, with the vote of Shareholders),
either for cash or for such other consideration (which may be
in any one or more instances a certain specified consideration
or certain specified considerations) and on such terms as the
Trustees, from time to time, may deem advisable, and the
Portfolio may in such manner acquire other assets (including
the acquisition of assets subject to, and in connection with
the assumption of liabilities).
Section 2.7 Additional Rights and Preferences of Preferred Shares. If
the Trust establishes and issues Preferred Shares, such Preferred Shares shall
be issued from time to time in one or more Preferred Series with such
distinctive serial designations and (i) may have such additional voting powers,
full or limited; (ii) may be subject to redemption or repurchase at such time or
times and at such price or prices; (iii) may be entitled to receive dividends
(which may be cumulative or noncumulative) at such rate or rates, on such
conditions, and at such times, and payable in preference to, or in such relation
to, the dividends payable on the Common Shares; (iv) may have such additional
rights upon the termination of, or upon any distribution of the assets of, the
Trust, the Portfolio, the Preferred Shares or any Preferred
6
Series thereof; (v) may be made convertible into, or exchangeable for, Common
Shares, at such price or prices or at such rates of exchange and with such
adjustments; and (vi) shall have such other relative, participating, optional or
other special rights, qualifications, limitations or restrictions thereof, all
as shall hereafter be stated and expressed in the resolution or resolutions
providing for the issuance of such Preferred Shares from time to time adopted by
the Trustees (or a committee thereof) in accordance with Section 2.3(c) and all
of which shall be in addition to any other rights explicitly set forth in the
Governing Instrument. Each such resolution is hereby incorporated herein by this
reference and made a part of the Governing Instrument whether or not expressly
stated in such resolution, and shall be effective upon the occurrence of the
date stated therein (or, if no such date is stated, upon the date of such
adoption). Any of such matters may be made dependent upon facts ascertainable
outside this Agreement, or outside the resolution or resolutions providing for
the issuance of such Preferred Shares.
Section 2.8 Establishment of Senior Securities. Neither the Trust nor
the Portfolio shall initially have any Senior Securities (as defined below);
provided, however, that the Trustees may establish (1) a Class of Preferred
Shares having priority over the Common Shares in accordance with this Article II
or (2) bonds, debentures, notes or similar obligations or instruments
constituting a security and evidencing indebtedness for purposes of the 1940 Act
and having priority over the Common Shares (together, "Senior Securities"), upon
such terms and conditions as the Trustees shall establish in one or more
resolutions and in accordance with the 1940 Act and other applicable federal or
state securities laws. Each Senior Security shall be established by the adoption
of one or more resolutions by the Trustees. Each such resolution is hereby
incorporated herein by this reference and made a part of the Governing
Instrument whether or not expressly stated in such resolution, and shall be
effective upon the occurrence of both (i) the date stated therein (or, if no
such date is stated, upon the date of such adoption) and (ii) the execution of
an amendment to this Agreement, if required by such resolution, establishing and
designating such Senior Security.
Section 2.9 Investment in the Trust. Investments may be accepted by the
Trust from such Persons, at such times, on such terms, and for such
consideration, which may consist of cash or tangible or intangible property or a
combination thereof, as the Trustees from time to time may authorize. At the
Trustees' sole discretion, such investments, subject to applicable law, may be
in the form of cash or securities in which the Portfolio is authorized to
invest, valued as provided in applicable law. Each such investment shall be
recorded in the individual Shareholder's account in the form of full and
fractional Shares of the applicable Class of the Portfolio.
Section 2.10 Personal Liability of Shareholders. As provided by
applicable law, no Shareholder of the Trust shall be personally liable for the
debts, liabilities, obligations and expenses incurred by, contracted for, or
otherwise existing with respect to, the Trust or the Portfolio or any Class
thereof. Neither the Trust nor the Trustees, nor any officer, employee, or agent
of the Trust shall have any power to bind personally any Shareholder or to call
upon any Shareholder for the payment of any sum of money or assessment
whatsoever other than such as the Shareholder may at any time personally agree
to pay by way of subscription for any Shares or otherwise. The Shareholders
shall be entitled, to the fullest extent permitted by applicable law, to the
same limitation of personal liability as is extended under the Delaware General
Corporation Law to stockholders of private corporations for profit. Every note,
bond, contract or other undertaking issued by or on behalf of the Trust or the
Trustees relating to the Trust or the Portfolio shall include a recitation
limiting the obligation represented thereby to the Portfolio and the assets
belonging thereto (but the omission of such a recitation shall not
7
operate to bind any Shareholder or Trustee of the Trust or otherwise limit any
benefits set forth in the Delaware Act that may be applicable to such Persons).
Section 2.11 Assent to Agreement. Every Shareholder, by virtue of
having purchased a Share, shall be held to have expressly assented to, and
agreed to be bound by, the terms hereof. 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
rights of said decedent under the Governing Instrument.
ARTICLE III
THE TRUSTEES
Section 3.1 Management of the Trust. The Trustees shall have exclusive
and absolute control over the Trust Property and over the business of the Trust
to the same extent as if the Trustees were the sole owners of the Trust Property
and business in their own right, but with such powers of delegation as may be
permitted by this Agreement. The Trustees shall have power to conduct the
business of the Trust and the Portfolio and carry on their operations in any and
all of its branches and maintain offices both within and without the State of
Delaware, in any and all states of the United States of America, in the District
of Columbia, in any and all commonwealths, territories, dependencies, colonies,
or possessions of the United States of America, and in any and all foreign
jurisdictions and to do all such other things and execute all such instruments
as they deem necessary, proper or desirable in order to promote the interests of
the Trust or the Portfolio although such things are not herein specifically
mentioned. Any determination as to what is in the interests of the Trust or the
Portfolio made by the Trustees in good faith shall be conclusive. In construing
the provisions of this Agreement, the presumption shall be in favor of a grant
of power to the Trustees.
The enumeration of any specific power in this Agreement shall
not be construed as limiting the aforesaid power. The powers of the Trustees may
be exercised without order of or resort to any court or other authority.
Section 3.2 Trustees. The number of Trustees shall be such number as
shall be fixed from time to time by a majority of the Trustees; provided,
however, that the number of Trustees shall in no event be less than two (2) nor
more than fifteen (15). The initial Trustees are those first identified above.
If there are any Preferred Shares issued and outstanding, holders of such
Preferred Shares shall have the right to elect two (2) of the Trustees (the
"Preferred Share Trustees"), voting separately as a Class, at the next annual
meeting(s) of Shareholders at which the Preferred Share Trustee's term expires.
One Preferred Share Trustee shall be a member of Class II of the Trustees and
the other Preferred Share Trustee shall be a member of Class III of the Trustees
(as such terms are described in Section 3.3(a)). The initial Preferred Share
Trustees shall be designated in one or more resolutions by the Trustees. Each
such resolution is hereby incorporated herein by this reference and made a part
of the Governing Instrument whether or not expressly stated in such resolution,
and shall be effective upon the occurrence of the date stated therein (or, if no
such date is stated, upon the date of such adoption).
Section 3.3 Classification of Board; Terms of Office of Trustees.
(a) The Board of Trustees shall be classified, with respect to the
time for which Trustees severally hold office, into three
classes, Class I, Class II and Class III, as nearly equal in
number as reasonably possible, with the Trustees in each
8
Class to hold office until their successors are elected and
qualified. Each member of the Board of Trustees in Class I
shall hold office until the annual meeting of Shareholders in
2003, each member of the Board of Trustees in Class II shall
hold office until the annual meeting of Shareholders in 2004,
and each member of the Board of Trustees in Class III shall
hold office until the annual meeting of Shareholders in 2005.
At each annual meeting of the Shareholders, the successors to
the Class of Trustees whose terms expire at that meeting shall
be elected to hold office for terms expiring at the later of
the annual meeting of Shareholders held in the third year
following the year of their election or the election and
qualification of the successors to such Class of Trustees. The
initial Trustee in Class I shall be Xxxxx X. Xxxxxxx, the
initial Trustee in Class II shall be Xxxxx X. Xxxxx, and the
initial Trustee in Class III shall be Xxxxxx X. Xxxxxx. The
Board of Trustees shall, by one or more resolutions, further
classify any additional Trustees. Each such resolution is
hereby incorporated herein by this reference and made a part
of the Governing Instrument whether or not expressly stated in
such resolution, and shall be effective upon the occurrence of
the date stated therein (or, if no such date is stated, upon
the date of such adoption).
(b) For the duration of their terms, the Trustees shall hold
office during the lifetime of this Trust, and until its
termination as herein provided; except that (A) any Trustee
may resign his trusteeship or may retire by written instrument
signed by him and delivered to the other Trustees, which shall
take effect upon such delivery or upon such later date as is
specified therein; (B) any Trustee may be removed at any time
by written instrument, signed by at least two-thirds of the
number of Trustees prior to such removal, specifying the date
when such removal shall become effective; (C) any Trustee who
has died, become physically or mentally incapacitated by
reason of disease or otherwise, or is otherwise unable to
serve, may be retired by written instrument signed by a
majority of the other Trustees, specifying the date of his
retirement; and (D) a Trustee may be removed for Cause at any
meeting of the Shareholders as provided for in Section
6.2(a)(7).
Section 3.4 Vacancies and Appointment of Trustees. In case of the
declination to serve, death, resignation, retirement or removal of a Trustee, or
a Trustee is otherwise unable to serve, or an increase in the number of
Trustees, a vacancy shall occur. Whenever a vacancy in the Board of Trustees
shall occur, until such vacancy is filled, the other Trustees shall have all the
powers hereunder and the certification of the other Trustees of such vacancy
shall be conclusive. In the case of an existing vacancy, the remaining Trustees
may fill such vacancy by appointing such other person as they in their
discretion shall see fit, or may leave such vacancy unfilled or may reduce the
number of Trustees to not less than two (2) Trustees. Such appointment shall be
evidenced by a written instrument signed by a majority of the Trustees in office
or by resolution of the Trustees, duly adopted, which shall be recorded in the
minutes of a meeting of the Trustees, whereupon the appointment shall take
effect.
An appointment of a Trustee may be made by the Trustees then
in office in anticipation of a vacancy to occur by reason of retirement,
resignation, or removal of a Trustee, or an increase in number of Trustees
effective at a later date, provided that said appointment shall become effective
only at the time or after the expected vacancy occurs. As soon as any Trustee
appointed pursuant to this Section 3.4 or elected by the Shareholders shall have
accepted the Trust and agreed in writing to be bound by the terms of the
Agreement, the Trust
9
estate shall vest in the new Trustee or Trustees, together with the continuing
Trustees, without any further act or conveyance, and he shall be deemed a
Trustee hereunder.
Section 3.5 Temporary Absence of Trustee. Any Trustee may, by power of
attorney, delegate his power for a period not exceeding six months at any one
time to any other Trustee or Trustees, provided that in no case shall less than
two Trustees personally exercise the other powers hereunder except as herein
otherwise expressly provided.
Section 3.6 Effect of Death, Resignation, etc. of a Trustee. The
declination to serve, death, resignation, retirement, removal, incapacity, or
inability of the Trustees, or any one of them, shall not operate to terminate
the Trust or to revoke any existing agency created pursuant to the terms of this
Agreement.
Section 3.7 Ownership of Assets of the Portfolio. The assets of the
Portfolio thereof 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 all of the assets of the Portfolio and
the right to conduct any business shall at all times be considered as vested in
the Trustees on behalf of the Portfolio, except that the Trustees may cause
legal title to any Trust Property to be held by or in the name of the Portfolio,
or in the name of any Person as nominee. No Shareholder shall be deemed to have
a severable ownership in any individual asset of the Portfolio or any right of
partition or possession thereof, but each Shareholder shall have, except as
otherwise provided for herein, a proportionate undivided beneficial interest in
the assets belonging to the Portfolio in which the Shareholder holds Shares. The
Shares shall be personal property giving only the rights specifically set forth
in this Agreement or the Delaware Act.
ARTICLE IV
POWERS OF THE TRUSTEES
Section 4.1 Powers. The Trustees in all instances shall act as
principals, and are and shall be free from the control of the Shareholders. The
Trustees shall have full power and authority to do any and all acts and to make
and execute any and all contracts and instruments that they may consider
necessary or appropriate in connection with the management of the Trust. Without
limiting the foregoing and subject to any applicable limitation in this
Agreement or the Bylaws of the Trust, the Trustees shall have power and
authority:
(a) To invest and reinvest cash and other property, and to hold
cash or other property uninvested, without in any event being
bound or limited by any present or future law or custom in
regard to investments by Trustees, and to sell, exchange,
lend, pledge, mortgage, hypothecate, write options on and
lease any or all of the assets of the Portfolio;
(b) To operate as, and to carry on the business of, an investment
company, and to exercise all the powers necessary and
appropriate to the conduct of such operations;
(c) To borrow money 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; to endorse, guarantee, or undertake the performance
of an obligation or engagement of any other Person and to lend
Trust Property;
10
(d) To authorize the issuance of Senior Securities in accordance
with Section 2.8;
(e) To provide for the distribution of Shares either through a
principal underwriter in the manner hereafter provided for or
by the Trust itself, or both, or otherwise pursuant to a plan
of distribution of any kind;
(f) To adopt Bylaws not inconsistent with this Agreement providing
for the conduct of the business of the Trust and the Portfolio
and to amend and repeal them to the extent that they do not
reserve such right to the Shareholders; such Bylaws shall be
deemed incorporated and included in this Agreement;
(g) To elect and remove such officers and appoint and terminate
such agents as they consider appropriate;
(h) To employ one or more banks, trust companies or companies that
are members of a national securities exchange or such other
domestic or foreign entities as custodians of any assets of
the Portfolio subject to any conditions set forth in this
Agreement or in the Bylaws;
(i) To retain one or more transfer agents and shareholder
servicing agents;
(j) To set record dates in the manner provided herein or in the
Bylaws;
(k) To delegate such authority as they consider desirable to any
officers of the Trust and to any investment adviser, manager,
administrator, custodian, underwriter or other agent or
independent contractor;
(l) To sell or exchange any or all of the assets of the Portfolio,
subject to the right of Shareholders, if any, to vote on such
transaction pursuant to Section 6.1;
(m) 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 and powers of attorney to such
person or persons as the Trustees shall deem proper, granting
to such person or persons such power and discretion with
relation to securities or property as the Trustee shall deem
proper;
(n) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities;
(o) To hold any security or property in a form not indicating any
trust, whether in bearer, book entry, unregistered or other
negotiable form; or either in the name of the Trust or of the
Portfolio or a custodian or a nominee or nominees, subject in
either case to proper safeguards according to the usual
practice of Delaware business trusts or investment companies;
(p) To establish a Class of Preferred Shares and one or more
Preferred Series thereof, in accordance with the provisions of
Article II hereof and having relative rights, powers and
duties as they may provide consistent with this Agreement and
applicable law;
11
(q) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or
concern, any security of which is held in the Trust; to
consent to any contract, lease, mortgage, purchase, or sale of
property by such corporation or concern, and to pay calls or
subscriptions with respect to any security held in the Trust;
(r) 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;
(s) To declare and pay dividends and make distributions of income
and of capital gains and capital to Shareholders in the manner
hereinafter provided;
(t) To establish, from time to time, a minimum investment for
Shareholders in the Portfolio or any Class thereof;
(u) To redeem or repurchase Shares upon such terms and conditions
as the Trustees shall establish;
(v) To establish one or more committees, to delegate any of the
powers of the Trustees to said committees and to adopt a
committee charter providing for such responsibilities,
membership (including Trustees, officers or other agents of
the Trust therein) and any other characteristics of said
committees as the Trustees may deem proper, each of which
committees may consist of less than the whole number of
Trustees then in office, and may be empowered to act for and
bind the Trustees and the Trust, as if the acts of such
committee were the acts of all the Trustees then in office;
(w) To interpret the investment policies, practices or limitations
of the Portfolio;
(x) To establish a registered office and have a registered agent
in the State of Delaware; and
(y) In general, to carry on any other business in connection with
or incidental to any of the foregoing powers, to do everything
necessary, suitable or proper for the accomplishment of any
purpose or the attainment of any object or the furtherance of
any power hereinbefore set forth, either alone or in
association with others, and to do every other act or thing
incidental or appurtenant to or growing out of or connected
with the aforesaid business or purposes, objects or powers.
The foregoing clauses shall be construed both as objects and
powers, and the foregoing enumeration of specific powers shall not be held to
limit or restrict in any manner the general powers of the Trustees. Any action
by one or more of the Trustees in their capacity as such hereunder shall be
deemed an action on behalf of the Trust or the Portfolio, and not an action in
an individual capacity.
The Trustees shall not be limited to investing in obligations
maturing before the possible termination of the Trust.
12
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.
Section 4.2 Issuance, Redemption and Repurchase of Shares. The Trustees
shall have the power to issue, sell, redeem, repurchase, retire, cancel,
acquire, hold, resell, reissue, dispose of, and otherwise deal in Shares and,
subject to the provisions set forth in Articles II and VII hereof, to apply to
any such redemption, repurchase, retirement, cancellation or acquisition of
Shares any funds or property of the Trust, or any assets belonging to the
Portfolio, with respect to which such Shares are issued.
Section 4.3 Action by the Trustees. The Board of Trustees or any
committee thereof shall act by majority vote of those present at a meeting duly
called (including a meeting by telephonic or other electronic means, unless the
1940 Act requires that a particular action be taken only at a meeting of the
Trustees in person) at which a quorum required by the Bylaws is present. Any
action that may be taken by the Board of Trustees or any committee thereof by
majority vote at a meeting duly called and at which a quorum required by the
Bylaws is present, may also be taken by written consent of at least seventy-five
percent (75%) of the Trustees or members of the committee, as the case may be,
without a meeting, provided that the writing or writings are filed with the
minutes of proceedings of the Board or committee. Written consents or waivers of
the Trustees may be executed in one or more counterparts. Any written consent or
waiver may be provided and delivered to the Trust by any means by which notice
may be given to a Trustee. Subject to the requirements of this Agreement and the
1940 Act, the Trustees by Majority Trustee Vote may delegate to any Trustee or
Trustees authority to approve particular matters or take particular actions on
behalf of the Trust.
Section 4.4 Principal Transactions. The Trustees may, on behalf of the
Portfolio, buy any securities from or sell any securities to, or lend any assets
of the Portfolio 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, distributor, or transfer agent for the
Trust or with any Affiliated Person of such Person; and the Trust may employ any
such Person, or firm or Company in which such Person is an Affiliated Person, as
broker, legal counsel, registrar, investment adviser, distributor,
administrator, transfer agent, dividend disbursing agent, custodian, or in any
capacity upon customary terms, subject in all cases to applicable laws, rules,
and regulations and orders of regulatory authorities.
Section 4.5 Payment of Expenses by the Trust. The Trustees are
authorized to pay or cause to be paid out of the principal or income of the
Trust or the Portfolio, or partly out of the principal and partly out of income,
and to charge or allocate to, between or among such one or more of the Classes,
as they deem fair, all expenses, fees, charges, taxes and liabilities incurred
or arising in connection with the Trust or Portfolio or Class, or in connection
with the management thereof, including, but not limited to, the Trustees'
compensation and such expenses and charges for the services of the Trust's
officers, employees, investment adviser and manager, administrator, principal
underwriter, auditors, 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 4.6 Trustee Compensation. The Trustees as such shall be
entitled to reasonable compensation from the Portfolio. They may fix the amount
of their compensation. Nothing herein shall in any way prevent the employment of
any Trustee for advisory,
13
management, administrative, legal, accounting, investment banking, underwriting,
brokerage, or investment dealer or other services and the payment for the same
by the Portfolio.
Section 4.7 Independent Trustee. A Trustee who is an "Independent
Trustee," as that term is defined in the Delaware Act, shall be deemed to be an
Independent Trustee when making any determinations or taking any action as a
Trustee.
ARTICLE V
INVESTMENT ADVISER, PRINCIPAL UNDERWRITER AND
TRANSFER AGENT
Section 5.1 Investment Adviser. The Trustees may in their discretion,
from time to time, enter into an investment advisory or management contract or
contracts with respect to the Trust or the Portfolio whereby the other party or
parties to such contract or contracts shall undertake to furnish the Trustees
with such management, investment advisory, statistical and research facilities
and services and such other facilities and services, if any, and all upon such
terms and conditions, as the Trustees may in their discretion determine.
The Trustees may authorize the investment adviser to employ,
from time to time, one or more sub-advisers to perform such of the acts and
services of the investment adviser, and upon such terms and conditions, as may
be agreed upon among the Trustees, the investment adviser and sub-adviser. Any
references in this Agreement to the investment adviser shall be deemed to
include such sub-advisers, unless the context otherwise requires.
Section 5.2 Other Service Contracts. The Trustees may authorize the
engagement of a principal underwriter, transfer agent, administrator, custodian,
and similar service providers.
Section 5.3 Parties to Contract. Any contract of the character
described in Sections 5.1 and 5.2 may be entered into with any corporation,
firm, partnership, trust or association, although one or more of the Trustees or
officers of the Trust may be an officer, director, trustee, shareholder, or
member of such other party to the contract.
Section 5.4 Miscellaneous. The fact that (i) 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 Company or of or for any parent or affiliate of any Company,
with which an advisory or administration contract, or principal underwriter's or
distributor's contract, or transfer, shareholder servicing, custodian or other
agency contract may have been or may hereafter be made, or that any such
Company, or any parent or affiliate thereof, is a Shareholder or has an interest
in the Trust, or that (ii) any Company with which an advisory or administration
contract or principal underwriter's or distributor's contract, or transfer,
shareholder servicing, custodian, or other agency contract may have been or may
hereafter be made also has an advisory or administration contract, or principal
underwriter's or distributor's contract, or transfer, shareholder servicing,
custodian or other agency contract with one or more other companies, 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.
14
ARTICLE VI
SHAREHOLDERS' VOTING POWERS AND MEETING
Section 6.1 Voting Powers. The Shareholders shall have power to vote
only to:
(a) elect Trustees in accordance with Sections 3.2 and 3.3,
provided that a meeting of Shareholders has been called for
that purpose;
(b) approve any of the transactions described in Section 6.2 of
this Agreement, provided that the provisions of Section 6.2
apply to any such transaction; and
(c) approve such additional matters as may be required by law or
as the Trustees, in their sole discretion, shall determine.
Until Shares are issued, the Trustees may exercise all rights
of Shareholders and may take any action required or permitted by law, this
Agreement or any of the Bylaws of the Trust to be taken by Shareholders.
On any matter submitted to a vote of the Shareholders, all
Shares shall be voted together, except when required by this Agreement or by
applicable law or when the Trustees have determined that the matter affects the
interests of fewer than all Classes, then only the Shareholders of such affected
Class or Classes shall be entitled to vote thereon and no Shareholders of any
non-affected Class or Classes shall be entitled to vote thereon.
In the case of any action or transaction set forth in Sections
6.2(a)(1) through 6.2(a)(6), the approval, adoption, or authorization of the
action or transaction in question shall require a Majority Shareholder Vote
rather than the affirmative vote or consent of the holders of at least sixty-six
and two-thirds percent (66 2/3%) of the Outstanding Shares entitled to vote
thereon as provided for in Section 6.2(a) if the action or transaction in
question has previously been approved, adopted, or authorized by the affirmative
vote of two-thirds of the total number of Trustees, including two-thirds of the
Trustees who are not "interested persons" of the Trust, as that term is defined
in the 1940 Act.
If there are Preferred Shares issued and outstanding, in the
case of (i) any action or transaction set forth in Sections 6.2(a)(1) or
6.2(a)(6) or (ii) any action or transaction set forth in Sections 6.2(a)(2),
6.2(a)(3) or 6.2(a)(4) that adversely affects the Preferred Shares within the
meaning of Section 18(a)(2)(D) of the 1940 Act, then approval, adoption, or
authorization of the action or transaction in question shall also require the
affirmative vote or consent of the holders of at least sixty-six and two-thirds
percent (66 2/3%) of the Preferred Shares voting as a separate Class; provided
however, that such separate Class vote shall be a Majority Shareholder Vote if
the action or transaction in question has previously been approved, adopted, or
authorized by the affirmative vote of two-thirds of the total number of
Trustees.
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. Unless otherwise provided in this
Article VI or required by applicable law, the vote necessary to approve any
matter shall be set forth in the Bylaws.
15
Section 6.2 Voting Requirements for Certain Actions and Transactions.
(a) Notwithstanding any other provision of this Agreement, and
subject to the exceptions provided in Section 6.1, each of the
following actions and transactions shall require the
affirmative vote or consent of the holders of at least
sixty-six and two-thirds percent (66 2/3%) of the Outstanding
Shares entitled to vote thereon, including Preferred Shares,
if any:
(1) the conversion of the Trust from a closed-end
investment company to an open-end investment company;
(2) the merger or consolidation of the Trust or the
Portfolio or any Class thereof with or into another
Company or with and into another Class, unless (A)
the primary purpose of such merger or consolidation
is to change the Trust's domicile or form of
organization or form of business trust, or (B) after
giving effect to such merger or consolidation, based
on the number of Outstanding Shares as of a date
selected by the Trustees, the Shareholders of the
Trust or the Portfolio or such Class will have a
majority of the outstanding shares of the surviving
Company or Class, as the case may be;
(3) the issuance by the Trust, in one transaction or in a
series of transactions, of any securities of the
Trust having an aggregate value of five percent (5%)
or more of the total value of the Outstanding Shares
to any Principal Shareholder for cash;
(4) the sale, lease or exchange of all or substantially
all the assets of the Portfolio or any Class thereof
to any Person, unless the primary purpose of such
sale is to change the Trust's domicile or form of
organization or form of business trust;
(5) the termination of the Trust or the Portfolio or any
Class thereof, unless, as of the date on which the
Trustees have determined to so terminate the Trust or
the Portfolio or such Class, there are fewer than 100
holders of record of the Trust or the Portfolio or
such terminating Class;
(6) any amendment to this Agreement that makes the Shares
a "redeemable security" as that term is defined in
the 1940 Act;
(7) the removal of one or more Trustees for Cause by the
Shareholders, provided that only holders of Preferred
Shares shall be entitled to vote to remove either of
the Preferred Share Trustees;
(8) any amendment to Section 3.3 of this Agreement;
(9) any amendment to Article VIII of this Agreement that
would have the effect of reducing the indemnification
provided thereby to Covered Persons or to
Shareholders or former Shareholders; and
(10) any amendment or alteration to, or any repeal of the
provisions of, this Article VI or the adoption of any
provision inconsistent with this Article VI.
16
The voting requirements set forth in this Section 6.2(a) shall
be in addition to, and not in lieu of, the vote or consent of
the Shareholders otherwise required by applicable law
(including, without limitation, any separate vote by Class
that may be required by the 1940 Act or by other applicable
law), by the terms of any Class that is now or hereafter
authorized, by any agreement between the Trust and any
national securities exchange, or by this Agreement.
(b) For purposes of this Section 6.2, the term "Principal
Shareholder" shall mean any corporation, person, entity, or
group (within the meaning of Rule 13d-5 under the Securities
Exchange Act of 1934, as amended), which is the beneficial
owner, directly or indirectly, of ten percent (10%) or more of
the Outstanding Shares of the Trust and shall include any
affiliate or associate, as such terms are defined in clause
(2) below, of a Principal Shareholder. In calculating the
number of Shares beneficially owned by a Shareholder, in
addition to the Shares which a corporation, person, entity, or
group beneficially owns directly, any corporation, person,
entity, or group shall be deemed to be the beneficial owner of
any Shares (1) which it has the right to acquire pursuant to
any agreement or upon exercise of conversion rights or
warrants, or otherwise or (2) which are beneficially owned,
directly or indirectly (including Shares deemed owned through
application of clause (1) above), by any other corporation,
person, entity, or group with which it or its "affiliate" or
"associate," as those terms are defined in Rule 12b-2 under
the Securities Exchange Act of 1934, as amended, has any
agreement, arrangement, or understanding for the purpose of
acquiring, holding, voting, or disposing of Shares of the
Trust, or which is its "affiliate" or "associate" as so
defined. In calculating the number of Outstanding Shares of
the Trust, Outstanding Shares of the Trust shall not include
Shares deemed owned through application of clause (1) above.
ARTICLE VII
DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES
Section 7.1 Distributions. The Trustees may from time to time declare
and pay dividends and make other distributions with respect to the Portfolio or
any Class thereof, which may be from income, capital gains or capital. The
amount of such dividends or distributions and the payment of them and whether
they are in cash or any other Trust Property shall be wholly in the discretion
of the Trustees. Dividends and other distributions may be paid pursuant to a
standing resolution adopted once or more often as the Trustees determine. All
dividends and other distributions on Common Shares shall be distributed pro rata
to the holders of Common Shares in proportion to the number of Common Shares
they held on the record date established for such payment, provided that such
dividends and other distributions on Common Shares shall appropriately reflect
expenses allocated to the Common Shares. The Trustees may adopt and offer to
Shareholders such dividend reinvestment plans, cash distribution payment plans,
or similar plans as the Trustees deem appropriate.
Section 7.2 Redemptions of Shares by the Trustees. The Trustees may, at
their option, call for the redemption of the Shares of any Person or may refuse
to transfer or issue Shares to any Person to the extent that the same is
necessary to comply with applicable law or advisable to further the purposes for
which the Trust is formed. 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 to the Portfolio.
17
Section 7.3 Repurchases by the Trust. The Trust may, at the discretion
of the Trustees, repurchase its Shares upon such terms and conditions as are
established by the Trustees, subject to any applicable provisions of the 1940
Act and other applicable federal or state securities laws.
ARTICLE VIII
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 8.1 Limitation of Liability. A Trustee or officer, when acting
in such capacity, shall not be personally liable to any person for any act,
omission or obligation of the Trust or any Trustee or officer; provided,
however, that nothing contained herein or in the Delaware Act shall protect any
Trustee or officer against any 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 with the Trust.
Section 8.2 Indemnification of Covered Persons. Every Covered Person
shall be indemnified by the Trust to the fullest extent permitted by the
Delaware Act, the Bylaws and other applicable law.
Section 8.3 Indemnification of Shareholders. In case any Shareholder or
former Shareholder of the Trust shall be held to be personally liable solely by
reason of his being or having been a Shareholder of the Trust or the Portfolio
or any Class thereof and not because of his acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his heirs, executors,
administrators or other legal representatives, or, in the case of a corporation
or other entity, its corporate or general successor) shall be entitled, out of
the assets belonging to the Portfolio, to be held harmless from and indemnified
against all loss and expense arising from such liability in accordance with the
Bylaws and applicable law. The Trust, on behalf of the Portfolio or any Class
thereof, shall upon request by the Shareholder, assume the defense of any such
claim made against the Shareholder for any act or obligation of the Portfolio or
any Class thereof.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Trust Not a Partnership; Taxation. It is hereby expressly
declared that a trust and not a partnership is created hereby. No Trustee
hereunder shall have any power to bind personally either the Trust's officers or
any Shareholder. All persons extending credit to, contracting with or having any
claim against the Trust or the Trustees shall look only to the assets of the
Portfolio or of the Trust for payment under such credit, contract or claim; and
neither the Shareholders, the Trustees, nor the Trust's officers nor any of the
agents of the Trustees whether past, present or future, shall be personally
liable therefor.
It is intended that the Trust and the Portfolio, as
applicable, be classified for income tax purposes as an association taxable as a
corporation, and the Trustees shall do all things that they, in their sole
discretion, determine are necessary to achieve that objective, including (if
they so determine), electing such classifications on Internal Revenue Form 8832.
The Trustees, in their sole discretion and without the vote or consent of the
Shareholders, may amend this Agreement to ensure that this objective is
achieved.
Section 9.2 Trustee's Good Faith Action, Expert Advice, No Bond or
Surety. The exercise by the Trustees of their powers and discretion hereunder in
good faith and with
18
reasonable care under the circumstances then prevailing shall be binding upon
everyone interested. Subject to the provisions of Article VIII and to Section
9.1, the Trustees shall not be liable for errors of judgment or mistakes of fact
or law. The Trustees may take advice of counsel or other experts with respect to
the meaning and operation of this Agreement, and subject to the provisions of
Article VIII and Section 9.1, shall be under no liability for any act or
omission in accordance with such advice or for failing to follow such advice.
The Trustees shall not be required to give any bond as such, nor any surety if a
bond is obtained.
Section 9.3 Termination of Trust or Portfolio or Class.
(a) 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,
subject to the right of Shareholders, if any, to vote pursuant
to Section 6.1. The Portfolio or any Class thereof may be
terminated at any time by the Trustees by written notice to
the Shareholders of the Portfolio or such Class, subject to
the right of Shareholders, if any, to vote pursuant to Section
6.1.
(b) On termination of the Trust or the Portfolio pursuant to
paragraph (a) above,
(1) the Trust or the Portfolio thereafter shall carry on
no business except for the purpose of winding up its
affairs,
(2) the Trustees shall (i) proceed to wind up the affairs
of the Trust or the Portfolio, and all powers of the
Trustees under this Agreement with respect thereto
shall continue until such affairs have been wound up,
including the powers to fulfill or discharge the
contracts of the Trust or the Portfolio, (ii) collect
its assets or the assets belonging thereto, (iii)
sell, convey, assign, exchange, or otherwise dispose
of all or any part of those assets to one or more
persons at public or private sale for consideration
that may consist in whole or in part of cash,
securities, or other property of any kind, (iv)
discharge or pay its liabilities, and (v) do all
other acts appropriate to liquidate its business, and
(3) after paying or adequately providing for the payment
of all liabilities, and upon receipt of such
releases, indemnities, and refunding agreements as
they deem necessary for their protection, the
Trustees shall distribute the remaining assets
ratably among the Shareholders of the Trust or the
Portfolio.
(c) On termination of any Class pursuant to paragraph (a) above,
(1) the Trust thereafter shall no longer issue Shares of
that Class,
(2) the Trustees shall do all other acts appropriate to
terminate that Class, and
(3) unless different provisions have been established by
the Trustees with respect to the Preferred Shares, in
which case such provisions shall govern the treatment
of the Preferred Shares, the Trustees shall
distribute ratably among the Shareholders of that
Class, in cash or in kind, an
19
amount equal to the proportionate interest of that
Class in the net assets of the Portfolio (after
taking into account fees, expenses, or charges
allocable thereto), and in connection with any such
distribution in cash the Trustees are authorized to
sell, convey, assign, exchange or otherwise dispose
of such assets of the Portfolio of which that Class
is a part as they deem necessary.
(d) On completion of distribution of the remaining assets pursuant
to paragraph (b)(3) above (or the proportionate interest of
the Class in the net assets of the Portfolio pursuant to
paragraph (c)(3) above), the Trust or the Portfolio (or Class)
shall terminate and the Trustees and the Trust shall be
discharged from all further liabilities and duties hereunder
with respect thereto and the rights and interests of all
parties therein shall be cancelled and discharged. On
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 may be
signed by any one Trustee.
Section 9.4 Sale of Assets; Merger and Consolidation. Subject to right
of Shareholders, if any, to vote pursuant to Section 6.1, the Trustees may cause
(i) the Trust or its Portfolio to the extent consistent with applicable law to
sell all or substantially all of its assets to, or be merged into or
consolidated with, another business trust (or series thereof) or Company (or
series thereof), (ii) the Shares of the Trust or the Portfolio or any Class
thereof to be converted into beneficial interests in another business trust (or
series thereof) created pursuant to this Section 9.4, (iii) the Shares of any
Class to be converted into another Class of the Portfolio, or (iv) the Shares to
be exchanged under or pursuant to any state or federal statute to the extent
permitted by law. In all respects not governed by statute or applicable law, the
Trustees shall have power to prescribe the procedure necessary or appropriate to
accomplish a sale of assets, merger or consolidation including the power to
create one or more separate business trusts to which all or any part of the
assets, liabilities, profits or losses of the Trust may be transferred and to
provide for the conversion of Shares of the Trust or the Portfolio or any Class
thereof into beneficial interests in such separate business trust or trusts (or
series or class thereof).
Section 9.5 Filing of Copies, References, Headings. The original or a
copy of this Agreement or any amendment hereto or any supplemental agreement
shall be kept at the office of the Trust where it may be inspected by any
Shareholder. In this Agreement or in any such amendment or supplemental
agreement, references to this Agreement, and all expressions like "herein,"
"hereof," and "hereunder," shall be deemed to refer to this Agreement as amended
or affected by any such supplemental agreement. All expressions like "his,"
"he," and "him," shall be deemed to include the feminine and neuter, as well as
masculine, genders. Headings are placed herein for convenience of reference only
and in case of any conflict, the text of this Agreement, rather than the
headings, shall control. This Agreement may be executed in any number of
counterparts each of which shall be deemed an original.
Section 9.6 Governing Law. The Trust and this Agreement, and the
rights, obligations and remedies of the Trustees and Shareholders hereunder, are
to be governed by and construed and administered according to the Delaware Act
and the other laws of the State of Delaware; provided, however, that there shall
not be applicable to the Trust, the Trustees, the Shareholders or this Trust
Agreement (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
20
(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 or responsibilities or limitations on the indemnification, acts
or powers of trustees or other Persons, which are inconsistent with the
limitations of liabilities or authorities and powers of the Trustees or officers
of the Trust set forth or referenced in this Agreement.
The Trust shall be of the type commonly called a "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; provided, however, that the exercise of
any such power, privilege or action shall not otherwise violate applicable law.
Section 9.7 Amendments. Except as specifically provided in Section 6.1,
the Trustees may, without any Shareholder vote, amend this Agreement by making
an amendment to this Agreement, an agreement supplemental hereto, or an amended
and restated trust instrument. Any such amendment, having been approved by a
Majority Trustee Vote, shall become effective, unless otherwise provided by such
Trustees, upon being executed by a duly authorized officer of the Trust. A
certification signed by a duly authorized officer of the Trust setting forth an
amendment to this Agreement and reciting that it was duly adopted by the
Shareholders or by the Trustees as aforesaid, or a copy of this Agreement, as
amended, executed by a majority of the Trustees, or a duly authorized officer of
the Trust, shall be conclusive evidence of such amendment when lodged among the
records of the Trust.
Section 9.8 Provisions in Conflict with Law. The provisions of this
Agreement are severable, and if the Trustees shall determine, with the advice of
counsel, that any of such provisions is in conflict with applicable law, the
conflicting provision shall be deemed never to have constituted a part of this
Agreement; provided, however, that such determination shall not affect any of
the remaining provisions of this Agreement or render invalid or improper any
action taken or omitted prior to such determination. If any provision of this
Agreement shall be held invalid or unenforceable in any jurisdiction, such
invalidity or unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provisions in any other
jurisdiction or any other provision of this Agreement in any jurisdiction.
Section 9.9 Shareholders' Right to Inspect Shareholder List. One or
more Persons who together and for at least six months have been Shareholders of
at least five percent (5%) of the Outstanding Shares of any Class may present to
any officer or resident agent of the Trust a written request for a list of its
Shareholders. Within twenty (20) days after such request is made, the Trust
shall prepare and have available on file at its principal office a list verified
under oath by one of its officers or its transfer agent or registrar which sets
forth the name and address of each Shareholder and the number of Shares of the
Portfolio and Class which the Shareholder
21
holds. The rights provided for herein shall not extend to any Person who is a
beneficial owner but not also a record owner of Shares of the Trust.
22
IN WITNESS WHEREOF, the undersigned, being all of the Trustees
of the Trust, have executed this instrument this 11th day of March, 2002.
/s/ XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx
/s/ XXXXX X. XXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxx
/s/ XXXXX X. XXXXX
-----------------------------------
Xxxxx X. Xxxxx
