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EXHIBIT a(2)(a)
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
OF
AIM SPECIAL OPPORTUNITIES FUNDS
WHEREAS, THIS AGREEMENT AND DECLARATION OF TRUST of AIM Special
Opportunities Funds, dated February 4, 1998, as previously amended, is hereby
amended and restated as of November 5, 1998, among Xxxxxxx X. Xxxxx, Xxxxx X.
Xxxxxxxx, Xxxx Xxxx XX, Xxxxxx X. Xxxx, Xx., Xxxx Xxxxxx, Xxxx Xxxxxxxxxx,
Xxxxxx X. Xxxxxx, Xxxxx Xxxxxx-Xxxxx, Xxxxx X. Xxxxxxx, Xxx X. Xxxxxxxx and
Xxxxx X. Xxxxx, as 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 continue to 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 RESTATED CERTIFICATE OF TRUST
Section 1.1. Name. The name of the business trust continued hereby is
AIM Special Opportunities Funds, 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 Amended and Restated Agreement and
Declaration of Trust, as it may be amended from time to time;
(c) "allocable" has the meaning specified in Section 2.5(d);
(d) "allocated" has the meaning specified in Section 2.5(d);
(e) "Bylaws" means the Bylaws referred to in Section 4.1(e), as from
time to time amended;
(f) "Class" means a portion of Shares of a Portfolio of the Trust
established in accordance with the provisions of Section 2.3(b);
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(g) "Class Expenses" means expenses incurred by a particular Class in
connection with a shareholder services arrangement or a
distribution plan that is specific to such Class or any other
differing share of expenses or differing fees, in each case
pursuant to or to the extent permitted by Rule 18f-3 under the
1940 Act.
(h) "Covered Persons" 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.
(i) 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;
(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;
(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) "New Class A Shares" has the meaning specified in Section 2.6(c);
(n) "New Class B Shares" has the meaning specified in Section 2.6(c);
(o) The "1940 Act" means the Investment Company Act of 1940, as
amended from time to time;
(p) "Outstanding Shares" means Shares shown on the books of the Trust
or its transfer agent as then issued and outstanding, and includes
Shares of one Portfolio that the Trust has purchased on behalf of
another Portfolio, but excludes Shares of a Portfolio that the
Trust has redeemed or repurchased;
(q) "Portfolio" means a series of Shares of the Trust established in
accordance with the provisions of Section 2.3(a);
(r) "Proportionate Interest" has the meaning specified in Section
2.5(d);
(s) "Purchasing Portfolio" has the meaning specified in Section 2.10;
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(t) "Schedule A" has the meaning specified in Section 2.3(a);
(u) "Selling Portfolio" has the meaning specified in Section 2.10;
(v) "Shareholder" means a record owner of Outstanding Shares of the
Trust;
(w) "Shares" means, as to a Portfolio or any Class thereof, the equal
proportionate transferable units of beneficial interest into which
the beneficial interest of such Portfolio of the Trust or such
Class thereof shall be divided and may include fractions of Shares
as well as whole Shares;
(x) The "Trust" means AIM Special Opportunities Funds, the Delaware
business trust established hereby, and reference to the Trust,
when applicable to one or more Portfolios, shall refer to each
such Portfolio;
(y) 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
(z) "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 Trust or any Portfolio, or by the Trustees on
behalf of the Trust.
Section 1.3. Purpose. The purpose of the Trust is to conduct, operate
and carry on the business of an open-end management investment company
registered under the 1940 Act through one or more Portfolios investing
primarily in securities 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. Restated Certificate of Trust. Immediately upon the
execution of this Agreement, the Trustees shall file a Restated 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.
ARTICLE II
BENEFICIAL INTEREST
Section 2. 1. Shares of Beneficial Interest. The beneficial interest
in the Trust shall be divided into an unlimited number of Shares, with par
value of $0.01 per Share. The Trustees may, from time to time, (a) authorize
the division of the Shares into one or more series, each of which constitutes a
Portfolio, and (b) may further authorize the division of the Shares of any
Portfolio into one or more separate and distinct Classes. 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.
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Section 2.2. Issuance of Shares. 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 and Shares held in the treasury, 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 combine the Shares into a greater or lesser number without
thereby changing the proportionate beneficial interests in the Trust.
Contributions to the Trust may be accepted for, and Shares shall be redeemed as,
whole Shares and/or 1/1,000th of a Share or integral multiples thereof.
Section 2.3. Establishment of Portfolios and Classes.
(a) The Trust shall consist of one or more separate and
distinct Portfolios, each with an unlimited number of
Shares unless otherwise specified. The Trustees hereby
establish and designate the Portfolios listed on Schedule
A attached hereto and made a part hereof ("Schedule A").
Each additional Portfolio shall be established by the
adoption of a resolution by the Trustees. Each such
resolution is hereby incorporated herein by this reference
and made a part of the Trust's 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 either to this Agreement or to Schedule A hereto
establishing and designating such additional Portfolio or
Portfolios. The Shares of each 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 of each Portfolio and shall hold and
account for the assets belonging thereto separately from
the other Trust Property and the assets belonging to any
other Portfolio. Each Share of a Portfolio shall represent
an equal beneficial interest in the net assets belonging
to that Portfolio, except to the extent of Class Expenses
and other expenses separately allocated to Classes thereof
(if any Classes have been established) as permitted
herein.
(b) The Trustees may establish one or more Classes of Shares
of any Portfolio, each with an unlimited number of Shares
unless otherwise specified. Each Class so established and
designated shall represent a Proportionate Interest (as
defined in Section 2.5(d)) in the net assets belonging to
that Portfolio and shall have
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identical voting, dividend, liquidation, and other rights
and be subject to the same terms and conditions, except
that (1) Class Expenses allocated to a Class for which
such expenses were incurred shall be borne solely by that
Class, (2) other expenses, costs, charges, and reserves
allocated to a Class in accordance with Section 2.5(e) may
be borne solely by that Class, (3) dividends declared and
payable to a Class pursuant to Section 7.1 shall reflect
the items separately allocated thereto pursuant to the
preceding clauses, (4) each Class may have separate rights
to convert to another Class, exchange rights, and similar
rights, each as determined by the Trustees, and (5)
subject to Section 2.6(c), each Class may have exclusive
voting rights with respect to matters affecting only that
Class. The Trustees hereby establish for each Portfolio
listed on Schedule A the Classes listed thereon. Each
additional Class for any or all Portfolios shall be
established by the adoption of a resolution by the
Trustees, each of which is hereby incorporated herein by
this reference and made a 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 establishing and designating such
additional Class or Classes.
Section 2.4. Actions Affecting Portfolios and Classes. Subject to the
right of Shareholders, if any, to vote pursuant to Section 6.1, the Trustees
shall have full power and authority, in their sole discretion without obtaining
any prior authorization or vote of the Shareholders of any Portfolio, or Class
thereof, to establish and designate and to change in any manner any Portfolio
of Shares, or any Class or Classes thereof; to fix or change such preferences,
voting powers, rights, and privileges of any Portfolio, or Classes thereof, as
the Trustees may from time to time determine, including any change that may
adversely affect a Shareholder; to divide or combine the Shares of any
Portfolio, or Classes thereof, into a greater or lesser number; to classify or
reclassify or convert any issued Shares of any Portfolio, or Classes thereof,
into one or more Portfolios or Classes of Shares of a Portfolio; and to take
such other action with respect to the Shares as the Trustees may deem
desirable. A 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
any particular Portfolio or Class previously established and designated, the
Trustees may abolish that Portfolio or 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 each Portfolio or Class thereof established hereunder shall
have the following relative rights and preferences:
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(a) Except as set forth in paragraph (e) of this Section 2.5, each
Share of a Portfolio, regardless of Class, shall represent an
equal pro rata interest in the assets belonging to such 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 Share of such Portfolio.
(b) 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 Portfolio (or
Class).
(c) All consideration received by the Trust for the issue or sale of
Shares of a particular 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 from the other assets of the Trust and of
every other Portfolio and may be referred to herein as "assets
belonging to" that Portfolio. The assets belonging to a particular
Portfolio shall belong to that Portfolio for all purposes, and to
no other Portfolio, subject only to the rights of creditors of
that Portfolio. In addition, any assets, income, earnings, profits
or funds, or payments and proceeds with respect thereto, which are
not readily identifiable as belonging to any particular Portfolio
shall be allocated by the Trustees between and among one or more
of the Portfolios 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 of all Portfolios
thereof for all purposes, and such assets, income, earnings,
profits, or funds, or payments and proceeds with respect thereto
shall be assets belonging to that Portfolio.
(d) Each Class of a Portfolio shall have a proportionate undivided
interest (as determined by or at the direction of, or pursuant to
authority granted by, the Trustees, consistent with industry
practice) ("Proportionate Interest") in the net assets belonging
to that Portfolio. References herein to assets, expenses, charges,
costs, and reserves "allocable" or "allocated" to a particular
Class of a Portfolio shall mean the aggregate amount of such
item(s) of the Portfolio multiplied by the Class's Proportionate
Interest.
(e) A particular Portfolio shall be charged with the liabilities of
that Portfolio, and all expenses, costs, charges and reserves
attributable to any particular Portfolio shall be borne by such
Portfolio; provided that the Trustees may, in their sole
discretion, allocate or authorize the allocation of particular
expenses, costs, charges, and/or reserves of a Portfolio to fewer
than all the Classes thereof. Class Expenses shall, in all cases,
be allocated to the Class for which such Class Expenses were
incurred. Any general liabilities, expenses, costs, charges or
reserves of the Trust (or any Portfolio) that are not readily
identifiable as
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chargeable to or bearable by any particular Portfolio (or any
particular Class) shall be allocated and charged by the Trustees
between or among any one or more of the Portfolios (or 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 of all Portfolios (or Classes) for all
purposes. Without limitation of the foregoing provisions of this
Section 2.5(e), (i) the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with
respect to a particular Portfolio shall be enforceable against the
assets of such Portfolio only, and not against the assets of the
Trust generally or assets belonging to any other Portfolio, and
(ii) none of the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to the
Trust generally that have not been allocated to a specified
Portfolio, or with respect to any other Portfolio, shall be
enforceable against the assets of such specified Portfolio. Notice
of this contractual limitation on inter-Portfolio liabilities
shall be set forth in the Trust's Restated Certificate of Trust
described to Section 1.4, and upon the giving of such notice in
the Restated Certificate of Trust, the statutory provisions of
Section 3804 of the Delaware Act relating to limitations on
inter-Portfolio liabilities (and the statutory effect under
Section 3804 of setting forth such notice in the Restated
Certificate of Trust) shall become applicable to the Trust and
each Portfolio.
All references to Shares in this Agreement shall be deemed to be
shares of any or all Portfolios, or Classes thereof, as the context may
require. All provisions herein relating to the Trust shall apply equally to
each Portfolio of the Trust, and each Class thereof, except as the context
otherwise requires.
Section 2.6. Additional Rights and Preferences of Class B Shares. In
addition to the relative rights and preferences set forth in Section 2.5 and
all other provisions of this Agreement relating to Shares of the Trust
generally, any Class of any Portfolio designated as Class B Shares shall have
the following rights and preferences:
(a) Subject to the provisions of paragraph (c) below, all Class B
Shares other than those purchased through the reinvestment of
dividends and distributions shall automatically convert to Class A
Shares eight (8) years after the end of the calendar month in
which a Shareholder's order to purchase such shares was accepted.
(b) Subject to the provisions of paragraph (c) below, Class B Shares
purchased through the reinvestment of dividends and distributions
paid in respect of Class B Shares will be considered held in a
separate sub-account, and will automatically convert to Class A
Shares in the same proportion as any Class B Shares (other than
those in the sub-account) convert to Class A Shares. Other than
this conversion feature, the Class B Shares purchased through the
reinvestment of dividends and distributions paid in respect of
Class B Shares shall have all the
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rights and preferences, restrictions, limitations as to
dividends, qualifications and terms and conditions of
redemption of Class B Shares generally.
(c) If a Portfolio of the Trust implements any amendment to a
Plan of Distribution adopted under Rule 12b-1 promulgated
under the 1940 Act (or, if presented to Shareholders,
adopts or implements a non-Rule 12b-1 shareholder
services plan) that the Trustees determine would
materially increase the charges that may be borne by the
Class A Shareholders under such plan, the Class B Shares
will stop converting to the Class A Shares unless the
Class B Shares, voting separately, approve the amendment
or adoption. The Trustees shall have sole discretion in
determining whether such amendment or adoption is
submitted to a vote of the Class B Shareholders. Should
such amendment or adoption not be submitted to a vote of
the Class B Shareholders or, if submitted, should the
Class B Shareholders fail to approve such amendment or
adoption, the Trustees shall take such action as is
necessary to: (1) create a new class (the "New Class A
Shares") which shall be identical in all material respects
to the Class A Shares as they existed prior to the
implementation of the amendment or adoption; and (2)
ensure that the existing Class B Shares will be exchanged
or converted into New Class A Shares no later than the
date such Class B Shares were scheduled to convert to
Class A Shares. If deemed advisable by the Trustees to
implement the foregoing, and at the sole discretion of the
Trustees, such action may include the exchange of all
Class B Shares for a new class (the "New Class B Shares"),
identical in all material respects to the Class B Shares
except that the New Class B Shares will automatically
convert into the New Class A Shares. Such exchanges or
conversions shall be effected in a manner that the
Trustees reasonably believe will not be subject to federal
taxation.
Section 2.7. 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 affected Portfolio is authorized
to invest, valued as provided in applicable law. Each such investment shall be
credited to the individual Shareholder's account in the form of full and
fractional Shares of the Trust, in such Portfolio (or Class) as the Shareholder
shall select.
Section 2.8. 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 any Portfolio (or Class)
thereof. Neither the Trust nor the Trustees, nor any officer, employee, or
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agent of the Trust shall have any power to bind personally any Shareholder or,
except as provided herein or by applicable law, 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 to any Portfolio shall include a recitation limiting the
obligation represented thereby to the Trust and its assets or to one or more
Portfolios and the assets belonging thereto (but the omission of such a
recitation shall not operate to bind any Shareholder or Trustee of the Trust).
Section 2.9. 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 this Trust.
Section 2.10. Purchases of Shares Among Portfolios. The Trust may
purchase, on behalf of any Portfolio (the "Purchasing Portfolio"), Shares of
another Portfolio (the "Selling Portfolio") or any Class thereof. Shares of the
Selling Portfolio so purchased on behalf of the Purchasing Portfolio shall be
Outstanding Shares, and shall have all preferences, voting powers, rights and
privileges established for such Shares.
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 carry on its operations in any and all
of its branches and maintain offices both within and without the State of
Delaware, in any and all states of the United States of America, in the
District of Columbia, 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 although such things are not herein specifically
mentioned. Any determination as to what is in the interests of the Trust made
by the Trustees in good faith shall be conclusive. In construing the provisions
of this Agreement, the presumption shall be in favor of a grant of power to the
Trustees.
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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 three (3)
nor more than fifteen (15). The current Trustees are those first identified
above.
Section 3.3. Terms of Office of Trustees. 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 at any meeting of the
Shareholders by a vote of the Shareholders owning at least two-thirds of the
Outstanding Shares.
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 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
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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 Trust Agreement.
Section 3.7. Ownership of Assets of the Trust. The assets of the Trust
and of each 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
Trust and the right to conduct any business shall at all times be considered as
vested in the Trustees on behalf of the Trust, except that the Trustees may
cause legal title to any Trust Property to be held by, or in the name of the
Trust, 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 Trust, or
belonging to any Portfolio, or allocable to any Class thereof, 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 Trust or in assets belonging to the Portfolio (or allocable to the Class)
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
Trust;
(b) To operate as, and to carry on the business of, an
investment company, and 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,
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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;
(d) To provide for the distribution of interests of the Trust
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;
(e) To adopt Bylaws not inconsistent with this Trust Agreement
providing for the conduct of the business of the Trust 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 Trust
Agreement;
(f) To elect and remove such officers and appoint and
terminate such agents as they consider appropriate;
(g) 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 Trust subject to any conditions set forth in
this Agreement or in the Bylaws;
(h) To retain one or more transfer agents and shareholder
servicing agents;
(i) To set record dates in the manner provided herein or in
the Bylaws;
(j) 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;
(k) To sell or exchange any or all of the assets of the Trust,
subject to the right of Shareholders, if any, to vote on
such transaction pursuant to Section 6.1;
(l) 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;
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(m) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities;
(n) 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 a 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;
(o) To establish separate and distinct Portfolios with
separately defined investment objectives and policies and
distinct investment purposes in accordance with the
provisions of Article II hereof and to establish Classes
of such Portfolios having relative rights, powers and
duties as they may provide consistent with applicable law;
(p) Subject to the provisions of Section 3804 of the Delaware
Act, to allocate assets, liabilities and expenses of the
Trust to a particular Portfolio or to apportion the same
between or among two or more Portfolios, provided that any
liabilities or expenses incurred by a particular Portfolio
shall be payable solely out of the assets belonging to
that Portfolio as provided for in Article II hereof;
(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 Trust or in one or more Portfolios or
Classes, and to require the redemption of the Shares of
any Shareholder whose investment is less than such minimum
upon giving notice to such Shareholder;
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(u) 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;
(v) To interpret the investment policies, practices or
limitations of any Portfolios;
(w) To establish a registered office and have a registered
agent in the State of Delaware; and
(x) 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 applicable 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.
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 and Repurchase of Shares. The Trustees shall
have the power to issue, sell, repurchase, redeem, 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
repurchase, redemption, retirement, cancellation or acquisition of Shares any
funds or property of the Trust, or any assets belonging to the particular
Portfolio or any assets allocable to the particular Class, with respect to
which such Shares are issued.
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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 or by
unanimous written consent of the Trustees or 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 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 Trust, buy any securities from or sell any securities to, or lend any
assets of the Trust to, any Trustee or officer of the Trust or any firm of
which any such Trustee or officer is a member acting as principal, or have any
such dealings with any investment adviser, 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 any 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
Portfolios (or 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 Trust. They may fix the amount of
their compensation. Nothing herein shall in any way prevent the employment of
any Trustee for advisory, management, administrative, legal, accounting,
investment banking, underwriting, brokerage, or investment dealer or other
services and the payment for the same by the Trust.
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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 any 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
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Trust from voting upon or executing the same or create any liability or
accountability to the Trust or its Shareholders.
ARTICLE VI
SHAREHOLDERS' VOTING POWERS AND MEETING
Section 6.1. Voting Powers. The Shareholders shall have power to vote
only to: (i) elect Trustees, provided that a meeting of Shareholders has been
called for that purpose; (ii) remove Trustees, provided that a meeting of
Shareholders has been called for that purpose; (iii) approve the termination of
the Trust or any Portfolio or Class, unless, as of the date on which the
Trustees have determined to so terminate the Trust or such Portfolio or Class,
there are fewer than 100 holders of record of the Trust or of such terminating
Portfolio or Class and provided, further, that the Trustees have called a
meeting of the Shareholders for the purpose of approving any such termination;
(iv) approve the sale of all or substantially all the assets of the Trust or
any Portfolio or Class, unless the primary purpose of such sale is to change
the Trust's domicile or form of organization or form of business trust; (v)
approve the merger or consolidation of the Trust or any Portfolio or Class with
and into another Company, 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 Shares outstanding as of a date selected
by the Trustees, the Shareholders of the Trust or such Portfolio or Class will
have a majority of the outstanding shares of the surviving Company or Portfolio
or Class thereof, as the case may be; (vi) approve any amendment to this
Article VI, Section 6.1; and (vii) 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
Trust 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 applicable law or when
the Trustees have determined that the matter affects the interests of one or
more Portfolios (or Classes), then only the Shareholders of all such Portfolios
(or Classes) shall be entitled to vote thereon. 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. The vote
necessary to approve any such matter shall be set forth in the Bylaws.
ARTICLE VII
DISTRIBUTIONS AND REDEMPTIONS
Section 7.1. Distributions. The Trustees may from time to time declare
and pay dividends and make other distributions with respect to any Portfolio,
or 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
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resolution adopted once or more often as the Trustees determine. All dividends
and other distributions on Shares of a particular Portfolio or Class shall be
distributed pro rata to the Shareholders of that Portfolio or Class, as the
case may be, in proportion to the number of Shares of that Portfolio or Class
they held on the record date established for such payment, provided that such
dividends and other distributions on Shares of a Class shall appropriately
reflect Class Expenses and other expenses allocated to that Class. 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. Any holder of record of Shares of a
particular Portfolio, or Class thereof, shall have the right to require the
Trust to redeem his Shares, or any portion thereof, subject to such terms and
conditions as are set forth in the registration statement of the Trust in
effect from time to time. The redemption price may in any case or cases be paid
wholly or partly in kind if the Trustees determine that such payment is
advisable in the interest of the remaining Shareholders of the Portfolio or
Class thereof for which the Shares are being redeemed. Subject to the
foregoing, the fair value, selection and quantity of securities or other
property so paid or delivered as all or part of the redemption price may be
determined by or under authority of the Trustees. In no case shall the Trust be
liable for any delay of any Person in transferring securities selected for
delivery as all or part of any payment in kind.
Section 7.3. Redemption of Shares by 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 payments
of amounts due and owing by a Shareholder to the Trust or any Portfolio.
Section 7.4. Redemption of De Minimis Accounts. If, at any time when a
request for transfer or redemption of Shares of any Portfolio is received by
the Trust or its agent, the value of the Shares of such Portfolio in a
Shareholder's account is less than Five Hundred Dollars ($500.00), or such
greater amount as the Trustees in their discretion shall have determined in
accordance with Section 4.(1)(t), after giving effect to such transfer or
redemption and upon giving thirty (30) days' notice to the Shareholder, the
Trust may cause the remaining Shares of such Portfolio in such Shareholder's
account to be redeemed, subject to such terms and conditions as are set forth
in the registration statement of the Trust in effect from time to time.
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.
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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 any
Portfolio or Class 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 applicable 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
affected Portfolio, shall upon request by the Shareholder, assume the defense
of any such claim made against the Shareholder for any act or obligation of
that Portfolio.
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 appropriate Portfolio or, until the Trustees shall have established any
separate Portfolio, 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, or each Portfolio if there is
more than one Portfolio, 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 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.
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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. Any Portfolio or
Class may be terminated at any time by the Trustees by
written notice to the Shareholders of that Portfolio or
Class, subject to the right of Shareholders, if any, to
vote pursuant to Section 6.1.
(b) On termination of the Trust or any Portfolio pursuant to
paragraph (a) above,
(1) the Trust or that 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 that 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 that 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 that 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 the Class, and
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(3) the Trustees shall distribute ratably among the
Shareholders of that Class, in cash or in kind, an
amount equal to the Proportionate Interest of that
Class in the net assets of the Portfolio (after taking
into account any Class Expenses or other 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, the Trust or the
affected Portfolio 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 one or more of its Portfolios 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 Portfolio, business trust
(or series thereof) or Company (or series thereof), (ii) the Shares of the
Trust or any Portfolio (or Class) to be converted into beneficial interests in
another business trust (or series thereof) created pursuant to this Section
9.4, or (iii) 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 any Portfolio (or Class) 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
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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 (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 or 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 or to Schedule A, 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. Any amendment submitted to Shareholders
that the Trustees determine would affect the Shareholders of fewer than all
Portfolios (or fewer than all Classes thereof) shall be authorized by a vote of
only the Shareholders of the affected Portfolio(s) (or Class(es)), and no vote
shall be required of Shareholders of any Portfolio (or Class) that is not
affected. Notwithstanding anything else herein to the contrary, any amendment to
Article VIII that would have the effect of reducing the indemnification provided
thereby to Covered Persons or to Shareholders or former Shareholders, and any
repeal or amendment of this sentence shall each require the affirmative vote of
Shareholders owning at least two-thirds of the Outstanding Shares entitled to
vote thereon. A certification signed by a duly authorized officer of the Trust
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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 each Portfolio and Class which the Shareholder 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.
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IN WITNESS WHEREOF, the undersigned, being all of the Trustees of the
Trust, have executed this instrument this 5th day of November, 1998.
/s/ XXXXXXX X. XXXXX
------------------------------------
Xxxxxxx X. Xxxxx
/s/ XXXXX X. XXXXXXXX
------------------------------------
Xxxxx X. Xxxxxxxx
/s/ XXXX XXXX XX
------------------------------------
Xxxx Xxxx XX
/s/ XXXXXX X. XXXX, XX.
------------------------------------
Xxxxxx X. Xxxx, Xx.
/s/ XXXX XXXXXX
------------------------------------
Xxxx Xxxxxx
/s/ XXXX XXXXXXXXXX
------------------------------------
Xxxx Xxxxxxxxxx
/s/ XXXXXX X. XXXXXX
------------------------------------
Xxxxxx X. Xxxxxx
/s/ XXXXX XXXXXX-XXXXX
------------------------------------
Xxxxx Xxxxxx-Xxxxx
/s/ XXXXX X. XXXXXXX
------------------------------------
Xxxxx X. Xxxxxxx
/s/ XXX X. XXXXXXXX
------------------------------------
Xxx X. Xxxxxxxx
/s/ XXXXX X. XXXXX
------------------------------------
Xxxxx X. Xxxxx
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SCHEDULE A
AIM SPECIAL OPPORTUNITIES FUNDS
PORTFOLIOS AND CLASSES THEREOF
AIM Mid Cap Opportunities Fund
Class A Shares
Class B Shares
Class C Shares
AIM Small Cap Opportunities Fund
Class A Shares
Class B Shares
Class C Shares
25
