EXHIBIT 2(d)(5)
(PORTIONS OF AGREEMENT AND DECLARATION OF TRUST
RELATING TO SHAREHOLDERS' RIGHTS)
XXXXXX MUNICIPAL OPPORTUNITIES TRUST
AGREEMENT AND DECLARATION OF TRUST
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ARTICLE I
Name and Definitions
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(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;
(d) "Shareholder" means a record owner of Shares;
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(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.
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ARTICLE III
Shares
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 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
Bylaws. The number of Shares of each class or series
authorized shall be unlimited except as the Bylaws may otherwise provide. 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 a 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, 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.
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No Preemptive Rights
Section 4. Shareholders shall have no preemptive or other right to
subscribe to any additional Shares or other securities issued by the Trust.
Status of Shares and Limitation of Personal Liability
Section 5. Shares shall be deemed to be personal property giving only
the rights provided in this Declaration of Trust or the Bylaws. Every
Shareholder by virtue of having become a Shareholder shall be held to have
expressly assented and agreed to the terms of this Declaration of Trust and the
Bylaws and to have become a party hereto and thereto. The death of a Shareholder
during the continuance of the Trust shall not operate to terminate the same nor
entitle the representative of any deceased Shareholder to an accounting or to
take any action in court or elsewhere against the Trust or the Trustees, but
only to the rights of said decedent under this Trust. Ownership of Shares shall
not entitle the Shareholder to any title in or to the whole or any part of the
Trust property or right to call for a partition or division of the same or for
an accounting, nor shall the ownership of Shares constitute the Shareholders
partners. Neither the Trust nor the Trustees, nor any officer, employee or agent
of the Trust shall have any power to bind personally any Shareholder, nor except
as specifically provided herein to call upon any Shareholder for the payment of
any sum of money or assessment whatsoever other than such as the Shareholder may
at any time personally agree to pay.
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ARTICLE IV
The Trustees
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Powers
Section 3. 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 Bylaws 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 Bylaws 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
Bylaws, the Trustees may fill vacancies in or add to 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 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 servicing 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.
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ARTICLE V
Shareholders' Voting Powers and Meetings
Voting Powers
Section 1. Subject to the voting powers of one or more classes or
series of Shares as set forth in this Declaration of Trust or in the Bylaws, the
Shareholders shall have power to vote only (i) for the election of Trustees as
provided in Article IV, Section 1, (ii) for the removal of Trustees as provided
in Article IV, Section 1, (iii) with respect to any Manager as provided in
Article IV, Section 6, (iv) with respect to any termination of this Trust to the
extent and as provided in Article IX, Section 4, (v) with respect to any
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merger, consolidation or sale of assets of the Trust to the extent and as
provided in Article IX, Section 5, (vi) with respect to any conversion of the
Trust as provided in Article IX, Section 6, (vii) with respect to any amendment
of this Declaration of Trust to the extent and as provided in Article IX,
Section 9, (viii) 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, and (ix) with respect to such
additional matters relating to the Trust as may be required by this Declaration
of Trust, the Bylaws 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. 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 Bylaws, 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 any 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 Bylaws 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 in each
year beginning in 1994 on the date fixed in the Bylaws 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 Bylaws, 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
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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 25% of the
then outstanding Shares 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 Bylaws, then Shareholders holding at
least 25% of the then outstanding Shares 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. Notice of a meeting need not be given to any Shareholder if a
written waiver of notice, executed by him or her before or after the meeting, is
filed with the records of the meeting, or to any Shareholder who attends the
meeting without protesting prior thereto or at its commencement the lack of
notice to him or her.
Quorum and Required Vote
Section 3. A majority of Shares entitled to vote on a particular matter
shall be a quorum for the transaction of business on that matter at a
Shareholders' meeting, except that where the Bylaws 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 a quorum for the transaction of business by that class
or series. Any lesser number 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
different vote is required by any provision of this Declaration of Trust or the
Bylaws, a majority of the Shares voted shall decide any questions and a
plurality shall elect a Trustee, provided that where the Bylaws 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.
Action by Written Consent
Section 4. Any action taken by Shareholders may be taken without a
meeting if a majority of Shareholders entitled to vote on the matter (or such
different proportion thereof as shall be required by any express provision of
this Declaration of Trust or the Bylaws) consent to the action in writing and
such written consents are filed with the records of the meetings of
Shareholders. Such consent shall be treated for all purposes as a vote taken at
a meeting of Shareholders.
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Additional Provisions
Section 5. The Bylaws may include further provisions, not inconsistent
with this Declaration of Trust, regarding Shareholders' voting powers, the
conduct of meetings and related matters.
ARTICLE VI
Distributions
The Trustees may each year, or more frequently if they so determine,
distribute to the Shareholders of each class or series such amounts as the
Trustees may determine subject to the preferences, special or relative rights
and privileges of the various classes or series of Shares. Any such distribution
to the Shareholders of a particular class or series shall be made to said
Shareholders pro rata in proportion to the number of Shares of such class or
series held by each of them. Such distributions shall be made in cash or Shares
or other property or a combination thereof as determined by the Trustees.
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ARTICLE VIII
Indemnification
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Shareholders
Section 4. In case any Shareholder or former Shareholder shall be held
to be personally liable solely by reason of his or her being or having been a
Shareholder and not because of his or her acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his or her heirs, executors,
administrators or other legal representatives or, in the case of a corporation
or other entity, its corporate or other general successor) shall be entitled to
be held harmless from and indemnified against all loss and expense arising from
such liability.
ARTICLE IX
Miscellaneous
Trustees, Shareholders, etc. Not Personally Liable; Notice
Section 1. All persons extending credit to, contracting with or having
any claim against the Trust shall look only to the assets of the Trust for
payment under such credit, contract or claim, and neither the Shareholders nor
the Trustees, nor any of the Trust's officers, employees or agents, whether
past, present or future, shall be personally liable therefor. Nothing in this
Declaration of Trust shall protect any Trustee against any
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liability to which such Trustee would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee.
Every note, bond, contract, instrument, certificate or undertaking made
or issued by the Trustees or by any officer or officers shall give notice that
this Declaration of Trust is on file with the Secretary of State of The
Commonwealth of Massachusetts and shall recite that the same was executed or
made by or on behalf of the Trust or by them as Trustee or Trustees or as
officer or officers and not individually and that the obligations of such
instrument are not binding upon any of them or the Shareholders individually but
are binding only upon the assets and property of the Trust, and may contain such
further recital as he or she or they may deem appropriate, but the omission
thereof shall not operate to bind any Trustee or Trustees or officer or officers
or Shareholder or Shareholders individually.
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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 Bylaws, the Trust may be
terminated at any time by vote of Shareholders holding at least two-thirds of
the Shares entitled to vote (provided, however, if such termination is
recommended by two-thirds of the total number of the Trustees then in office,
the vote of a majority of the Shares entitled to vote shall be sufficient
authorization) 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, of the
Trust 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 property, 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.
Merger, Consolidation and Sale of Assets
Section 5. The Trust may merge or consolidate with any other
corporation, association, trust or other organization or may sell, lease or
exchange all or substantially all of its assets, including its good will, upon
such terms and conditions and for such consideration when and as authorized at
any meeting of Shareholders called for the
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purpose, or may liquidate or dissolve when and as authorized, by the affirmative
vote of the holders of not less than two-thirds of the Shares entitled to vote,
provided, however, that if such merger, consolidation, sale, lease or exchange
is recommended by two-thirds of the total number of Trustees then in office, the
vote of the holders of a majority of the Shares entitled to vote shall be
sufficient authorization. Nothing contained herein shall be construed as
requiring approval of the Shareholders for any sale of assets in the ordinary
course of business of the Trust. The provisions of this Section shall be subject
to the voting powers of one or more classes or series of Shares as set forth in
the Bylaws.
Conversion
Section 6. Subject to the voting powers of one or more classes or
series of Shares as set forth in the Bylaws, the Trust may be converted at any
time from a "closed-end company" to an "open-end company" as those terms are
defined in Section 5(a)(2) and 5(a)(1) of the 1940 Act, respectively, as in
effect on the date of the execution hereof, upon the approval of such a
proposal, together with any necessary amendments to the Declaration of Trust to
permit such a conversion, by the holders of two-thirds of the Shares entitled to
vote, except that if such proposal is recommended by two-thirds of the total
number of Trustees then in office, such proposal may be adopted by a vote of the
majority of the Shares entitled to vote. Upon the adoption of such proposal and
related amendments by the Trust's Shareholders as provided above, the Trust
shall, upon complying with any requirements of the 1940 Act and state law,
become an "open-end" investment company. Such affirmative vote or consent shall
be in addition to the vote or consent of the holders of the Shares otherwise
required by law, the Bylaws or any agreement between the Trust and any national
securities exchange.
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Amendments
Section 9. Subject to the voting powers of one or more classes or
series of Shares, as set forth in the Bylaws, this Declaration of Trust may be
amended at any time by an instrument in writing signed by a majority of the then
Trustees (a) when authorized to do so by vote of Shareholders holding a majority
of the Shares entitled to vote, except that an amendment amending or affecting
the provisions of Section 1 of Article IV, Section 4, 5 or 6 of this Article IX
or this sentence shall require the vote of Shareholders holding two-thirds of
the Shares entitled to vote, or (b) without Shareholder approval as may be
necessary or desirable in order to authorize one or more classes or series of
Shares as provided 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.
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