1
Exhibit (a)(3)
AMENDMENT NO. 2
TO THE
AGREEMENT AND DECLARATION OF TRUST
OF
COLONIAL HIGH INCOME MUNICIPAL TRUST
This Amendment No. 2 to the AGREEMENT AND DECLARATION OF TRUST OF
COLONIAL HIGH INCOME MUNICIPAL TRUST is made at Boston, Massachusetts this 30th
day of July 1999 by the Trustees hereunder, and by the holders of Shares to be
issued hereunder as hereinafter provided.
WHEREAS, Article IX, Section 7 of the Declaration of Trust (the
"Declaration of Trust") dated January 9, 1989, of Colonial High Income Municipal
Trust, a copy of which is on file in the Office of the Secretary of State of The
Commonwealth of Massachusetts, authorizes the trustees of the Trust to amend
said Declaration of Trust at any time by an instrument in writing signed by a
majority of the then Trustees when authorized to do so by vote of shareholders
holding a majority of the Shares entitled to vote;
WHEREAS, the holders of a majority of the Shares of Colonial High
Income Municipal Trust entitled to vote have authorized this amendment of the
Declaration of Trust;
NOW, THEREFORE, the undersigned, being a majority of the Trustees of
the Trust, and being authorized to do so by the holders of a majority of the
outstanding shares of beneficial interest of Colonial High Income Municipal
Trust, have authorized the following amendments to the Declaration of Trust:
Subsection (c) of Section 2 of Article I of the Agreement and
Declaration of Trust is amended to read in its entirety as follows:
(c) "Shares" means the equal proportionate transferable units of
interest into which the beneficial interest in the Trust shall be
divided from time to time or, if more than one class or series of
Shares is authorized by the Trustees, the equal proportionate
transferable units into which each class or series of shares shall be
divided from time to time;
Subsections (g) and (h) of Section 2 of Article I of the Agreement and
Declaration of Trust are amended to read in their entirety, and new subsections
(i) and (j) are added immediately thereafter, as follows:
(g) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust as amended or restated from time to time;
(h) "By-Laws" shall mean the By-Laws of the Trust as amended
from time to time;
(i) The term "class" or "class of Shares" refers to the division
of Shares into two or more classes as provided in Article III, Section
1 hereof; and
(j) The term "series" or "series of Shares" refers to the
division of Shares representing any class into two or more series as
provided in Article III, Section 1 hereof.
Sections 1 and 2 of Article III of the Agreement and Declaration of
Trust are amended to read in their entirety as follows:
2
DIVISION OF BENEFICIAL INTEREST
SECTION 1. The Trustees may, without Shareholder approval,
authorize one or more classes of Shares (which classes may be divided
into two or more series), Shares of each such class or series having
such preferences, voting powers, terms of redemption, if any, and
special or relative rights or privileges (including conversion rights,
if any) as the Trustees may determine and as shall be set forth in the
By-Laws. The number of Shares of each class or series authorized shall
be unlimited, except as the By-Laws may otherwise provide, and the
Shares so authorized may be represented in part by fractional shares.
The Trustees may from time to time divide or combine the Shares of any
class or series into a greater or lesser number without thereby
changing the proportionate beneficial interest in the class or series.
OWNERSHIP OF SHARES
SECTION 2. The ownership of Shares shall be recorded on the
books of the Trust or its transfer or similar agent. No certificates
certifying the ownership of Shares shall be issued except as the
Trustees may otherwise determine from time to time. The Trustees may
make such rules as they consider appropriate for the issuance of Share
certificates, the transfer of Shares and similar matters. The record
books of the Trust as kept by the Trust or any transfer or similar
agent of the Trust, as the case may be, shall be conclusive as to who
are the Shareholders of each class or series and as to the number of
Shares of each class or series held from time to time by each
Shareholder.
Sections 1 and 2 of Article IV of the Agreement and Declaration of
Trust are amended to read in their entirety as follows:
NUMBER OF TRUSTEES AND TERM OF OFFICE
SECTION 1. Subject to the voting powers of one or more classes
or series of Shares as set forth in the By-Laws, the number of Trustees
shall be such number as shall be fixed from time to time by a written
instrument signed by a majority of the Trustees, provided, however,
that the number of Trustees shall in no event be less than three (3).
No reduction in the number of Trustees shall have the effect of
removing any Trustee from office prior to the expiration of his term
unless the Trustee is specifically removed pursuant to Section 2 of
this Article at the time of the decrease. The Board of Trustees shall
be divided into three classes. The number of Trustees in each class
shall be determined by resolution of the Board of Trustees. The initial
Trustees, each of whom shall serve until the first meeting of
Shareholders at which Trustees are elected and until his or her
successor is elected and qualified, or until he or she sooner dies,
resigns or is removed, shall be Xxxx X. XxXxxxx, Xx. and such other
persons as the Trustee or Trustees then in office shall, prior to any
sale of Shares pursuant to a public offering, appoint. The term of
office of all of the initial Trustees shall expire on the date of the
first annual meeting of Shareholders or special meeting in lieu
thereof, which annual or special meeting shall be called to be held not
more than fifteen months after Shares are first sold pursuant to a
public offering. The term of office of the first class shall expire on
the date of the second annual meeting of Shareholders or any special
meeting in lieu thereof. The term of office of the second class shall
expire on the date of the third annual meeting of Shareholders or any
special meeting in lieu thereof. The term of office of the third class
shall expire on the date of the fourth annual meeting of Shareholders
or any special meeting in lieu thereof. Upon expiration of the term of
office of each class as set forth above, the number of Trustees in such
class, as determined by the Board of Trustees, shall be elected for a
term expiring on the date of the third annual meeting of Shareholders
or any special meeting in lieu thereof following such expiration to
succeed the Trustees whose terms of office expire. The Trustees shall
2
3
be elected at an annual meeting of the Shareholders or a special
meeting in lieu thereof, except as provided in Section 2 of this
Article.
VACANCIES; REMOVAL
SECTION 2. Subject to the voting powers of one or more classes
or series of Shares as set forth in the By-Laws, any vacancies
occurring in the Board of Trustees may be filled by the Trustees if,
immediately after filling any such vacancy, at least two-thirds of the
Trustees then holding office shall have been elected to such office by
the Shareholders. In the event that at any time less than a majority of
the Trustees then holding office were elected to such office by the
Shareholders, the Trustees shall call a meeting of Shareholders for the
purpose of electing Trustees. At any meeting called for such purpose
and subject to the voting powers of one or more classes or series of
Shares as set forth in the By-Laws, a Trustee may be removed, with or
without cause, by vote of a majority of the outstanding Shares of the
classes or series entitled to vote for the election of such Trustee. By
vote of a majority of the Trustees then in office, the Trustees may
remove a Trustee with or without cause.
The first paragraph of Section 4 of Article IV of the Agreement and
Declaration of Trust is amended to read in its entirety as follows:
POWERS
SECTION 4. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Trustees, and
they shall have all powers necessary or convenient to carry out that
responsibility. Without limiting the foregoing, the Trustees may adopt
By-Laws not inconsistent with this Declaration of Trust providing for
the conduct of the business of the Trust and may amend and repeal them
to the extent that such By-Laws do not reserve that right to the
Shareholders of one or more classes or series. Subject to the voting
power of one or more classes or series of shares as set forth in the
By-Laws, the Trustees may fill vacancies in or add to their number,
including vacancies resulting from increases in their number, and may
elect and remove such officers and appoint and terminate such agents as
they consider appropriate; they may appoint from their own number, and
terminate, any one or more committees consisting of two or more
Trustees, including an executive committee which may, when the Trustees
are not in session, exercise some or all of the power and authority of
the Trustees as the Trustees may determine; they may appoint an
advisory board, the members of which shall not be Trustees and need not
be Shareholders; they may employ one or more custodians of the assets
of the Trust and may authorize such custodians to employ subcustodians
and to deposit all or any part of such assets in a system or systems
for the central handling of securities, retain a transfer agent or a
Shareholder services agent, or both, provide for the distribution of
Shares by the Trust, through one or more principal underwriters or
otherwise, set record dates for the determination of Shareholders with
respect to various matters, and in general delegate such authority as
they consider desirable to any officer of the Trust, to any committee
of the Trustees and to any agent or employee of the Trust or to any
such custodian or underwriter.
Sections 1, 2, 3 and 4 of Article V of the Agreement and Declaration of
Trust are amended to read in their entirety as follows:
VOTING POWERS
SECTION 1. Subject to the voting powers of one or more classes
or series of Shares as set forth in the By-Laws, the Shareholders shall
have power to vote only (i) for the election or removal of Trustees as
provided in Article IV, Section 1, (ii) with respect to any Adviser as
provided in Article
3
4
IV, Section 7, (iii) with respect to any termination of this Trust to
the extent and as provided in Article IX, Section 4, (iv) with respect
to any amendment of this Declaration of Trust to the extent and as
provided in Article IX, Section 7, (v) to the same extent as the
stockholders of a Massachusetts business corporation as to whether or
not a court action, proceeding or claim should or should not be brought
or maintained derivatively or as a class action on behalf of the Trust
or the Shareholders, (vi) with respect to such additional matters
relating to the Trust as may be required by law, this Declaration of
Trust, the By-Laws or any registration of the Trust with the Securities
and Exchange Commission (or any successor agency) or any state, or as
the Trustees may consider necessary or desirable. 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, except as otherwise provided in the By-Laws.
Notwithstanding any other provision of this Declaration of Trust, on
any matter submitted to a vote of Shareholders, all Shares of the Trust
then entitled to vote shall, except as otherwise provided in the
By-Laws or required by law, be voted in the aggregate as a single class
without regard to classes or series of Shares. There shall be no
cumulative voting in the election of Trustees. Shares may be voted in
person or by proxy. A proxy with respect to Shares held in the name of
two or more persons shall be valid if executed by any one of them
unless at or prior to exercise of the proxy the Trust receives a
specific written notice to the contrary from any one of them. A proxy
purporting to be executed by or on behalf of a Shareholder shall be
deemed valid unless challenged at or prior to its exercise and the
burden of proving invalidity shall rest on the challenger. Until Shares
of a particular class or series are issued, the Trustees may exercise
all rights of Shareholders and may take any action required by law,
this Declaration of Trust or the By-Laws to be taken by Shareholders as
to such class or series.
VOTING POWER AND MEETINGS
SECTION 2. There shall be an annual meeting of the Shareholders
on the date fixed in the By-Laws at the office of the Trust in Boston,
Massachusetts, or at such other place as may be designated in the call
thereof, which call shall be made by the Trustees. In the event that
such meeting is not held in any year on the date fixed in the By-Laws,
whether the omission be by oversight or otherwise, a subsequent special
meeting may be called by the Trustees and held in lieu of the annual
meeting with the same effect as though held on such date. Special
meetings of Shareholders of any or all classes or series may also be
called by the Trustees from time to time for the purpose of taking
action upon any matter requiring the vote or authority of the
Shareholders of such class or series as herein provided or upon any
other matter deemed by the Trustees to be necessary or desirable.
Written notice of any meeting of Shareholders shall be given or caused
to be given by the Trustees by mailing such notice at least seven days
before such meeting, postage prepaid, stating the time, place and
purpose of the meeting, to each Shareholder entitled to vote at such
meeting at the Shareholder's address as it appears on the records of
the Trust. If the Trustees shall fail to call or give notice of any
meeting of Shareholders for a period of 30 days after written
application by Shareholders holding at least 10% of the Shares then
outstanding of all classes and series entitled to vote at such meeting
requesting a meeting to be called for a purpose requiring action by the
Shareholders as provided herein or in the By-Laws, then Shareholders
holding at least 10% of the Shares then outstanding of all classes and
series entitled to vote at such meeting may call and give notice of
such meeting, and thereupon the meeting shall be held in the manner
provided for herein in case of call thereof by the Trustees.
QUORUM AND REQUIRED VOTE
SECTION 3. A majority of the Shares entitled to vote on a
particular matter shall be a quorum for the transaction of business at
a Shareholders' meeting, except that where the By-Laws require that
holders of any class or series shall vote as an individual class or
series, then a majority of the aggregate number of Shares of that class
or series entitled to vote shall be necessary to constitute
4
5
a quorum for the transaction of business by that class or series. Any
lesser number, however, shall be sufficient for adjournments. Any
adjourned session or sessions may be held within a reasonable time
after the date set for the original meeting without the necessity of
further notice. Except when a larger vote is required by any provision
of this Declaration of Trust or the By-Laws, a majority of the Shares
voted shall decide any questions and a plurality shall elect a Trustee,
provided that where the By-Laws require that the holders of any class
or series shall vote as an individual class or series a majority of the
Shares of that class or series voted on the matter (or a plurality with
respect to the election of a Trustee) shall decide that matter insofar
as that class or series is concerned.
CONVERSION
SECTION 4. Notwithstanding any other provision of this
Declaration of Trust, the conversion of the Trust from a "closed-end
company" to an "open-end company," as those terms are defined in
Sections 5(a)(2) and 5(a)(1), respectively, of the 1940 Act as in
effect on January 1, 1989, shall require the affirmative vote or
consent of the holders of at least 66 2/3% of the Shares of each class
entitled to vote. Such affirmative vote or consent shall be in addition
to the vote or consent of the holders of the Shares otherwise required
by law or by any agreement between the Trust and any national
securities exchange.
Section 1 of Article VI of the Agreement and Declaration of Trust is
amended to read in its entirety as follows:
DISTRIBUTIONS
SECTION 1. The Trustees may, but need not, each year distribute
to the Shareholders of any or all classes or series such income and
gains, accrued or realized, as the Trustees may determine, after
providing for actual and accrued expenses and liabilities (including
such reserves as the Trustees may establish) determined in accordance
with good accounting practices and subject to the preferences, special
or relative rights and privileges of the various classes or series of
Shares. The Trustees shall have full discretion to determine which
items shall be treated as income and which items as capital and their
determination shall be binding upon the Shareholders. Distributions of
each year's income, if any be made, may be made in one or more
payments, which shall be in Shares, in cash or otherwise and on a date
or dates and as of a record date or dates determined by the Trustees.
At any time and from time to time in their discretion, the Trustees may
distribute to the Shareholders as of a record date or dates determined
by the Trustees, in Shares, in cash or otherwise, all or part of any
gains realized on the sale or disposition of property or otherwise, or
all or part of any other principal of the Trust. Each distribution
pursuant to this Section 1 to the Shareholders of a particular class or
series shall be made ratably according to the number of Shares of such
class or series held by the several Shareholders on the applicable
record date thereof, provided that no distribution need be made on
Shares purchased pursuant to orders received, or for which payment is
made, after such time or times as the Trustees may determine. Any such
distribution paid in Shares will be paid at the net asset value thereof
as determined in accordance with Section 2 of this Article VI, or at
such other value as may be specified by the By-Laws or as the Trustees
may from time to time determine, subject to applicable laws and
regulations then in effect.
The first paragraph of Section 2 of Article VI of the Agreement and
Declaration of Trust is amended to read in its entirety as follows:
5
6
DETERMINATION OF NET ASSET VALUE
SECTION 2. At such times as the Trust shall have outstanding
only one class or series of Shares, the term "net asset value" of the
Shares shall mean: (i) the value of all the assets of the Trust; (ii)
less the total liabilities of the Trust; (iii) divided by the number of
Shares outstanding, in each case at the time of each determination. Any
fractions involved in the computation of net asset value per share
shall be adjusted to the nearer cent unless the Trustees shall
determine to adjust such fractions to a fraction of a cent. At such
times as the Trust shall have outstanding more than one class or series
of Shares, the term "net asset value" of the Shares shall have such
meaning, with respect to the Shares of any particular class or series
of Shares, as shall from time to time be specified in the By-Laws.
Section 4 of Article IX of the Agreement and Declaration of Trust is
amended to read in its entirety as follows:
DURATION AND TERMINATION OF TRUST
SECTION 4. Unless terminated as provided herein, the Trust shall
continue without limitation of time. Subject to the voting powers of
one or more classes or series of Shares as set forth in the By-Laws,
the Trust may be terminated at any time by vote of Shareholders holding
at least 66 2/3 % of the Shares entitled to vote or by the Trustees by
written notice to the Shareholders.
Upon termination of the Trust, after paying or otherwise
providing for all charges, taxes, expenses and liabilities, whether due
or accrued or anticipated as may be determined by the Trustees, the
Trust shall in accordance with such procedures as the Trustees consider
appropriate reduce the remaining assets to distributable form in cash
or shares or other securities, or any combination thereof, and
distribute the proceeds to the Shareholders, ratably according to the
number of Shares held by the several Shareholders on the date of
termination, except to the extent otherwise required or permitted by
the preferences and special or relative rights and privileges of any
classes or series of Shares.
Section 7 of Article IX of the Agreement and Declaration of Trust is
amended to read in its entirety as follows:
AMENDMENTS
SECTION 7. (a) Except to the extent that the By-Laws or
applicable law may require a higher vote or the separate vote of one or
more classes or series of Shares, and except as provided in paragraph
(b) of this Section 7, this Declaration of Trust may be amended at any
time by an instrument in writing signed by a majority of the then
Trustees (1) when authorized so to do by a vote of Shareholders holding
a majority of the Shares entitled to vote or (2) without Shareholder
approval as may be necessary or desirable in order to authorize one or
more classes or series of Shares as in Section 1 of Article III.
Amendments having the purpose of changing the name of the Trust or of
supplying any omission, curing any ambiguity or curing, correcting or
supplementing any defective or inconsistent provision contained herein
shall not require authorization by Shareholder vote.
(b) Except to the extent that the By-Laws or applicable law may
require a higher vote or the separate vote of one or more classes or
series of Shares, no amendment may be made under this Section 7 which
shall amend, alter, change or repeal any of the provisions of Article
IV, Section 1, Article V, Section 4 or this paragraph (b) unless the
amendment effecting such amendment, alteration, change or repeal shall
receive the affirmative vote or consent of at least 66 2/3% of the
6
7
Shares entitled to vote. Such affirmative vote or consent shall be in
addition to the vote or consent of the holders of Shares otherwise
required by law or by the terms of any agreement between the Trust and
any national securities exchange.
7
8
IN WITNESS WHEREOF, the undersigned have hereunto set their hands in
the City of Boston, Massachusetts, for themselves and their assigns, as of this
30th day of July, 1999.
--------------------------------------- ---------------------------------------
Xxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxx
--------------------------------------- ---------------------------------------
Xxx Xxxxxxxxx Xxxxx X. Xxxxx, Xx.
--------------------------------------- ---------------------------------------
Xxxx X. Xxxxxxxx Xxxx X. Xxxxxxxxx
--------------------------------------- ---------------------------------------
Xxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx
--------------------------------------- ---------------------------------------
Xxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxxx
--------------------------------------- ---------------------------------------
Xxxxxxx X. Xxxxx Xxxx-Xxx Xxxxxxxx
---------------------------------------
Xxxxxxxxx Xxxxxx
Commonwealth of Massachusetts )
)ss.
County of Suffolk )
Then personally appeared the above-named Trustees and executed Amendment No. 2
to the Agreement and Declaration of Trust of Colonial High Income Municipal
Trust as their free act and deed, before me, this 30th day of July, 1999.
Xxxx X Xxxxxxx
Notary Public
My Commission Expires 2/22/2002
8
