Exhibit A
BLACKROCK FLORIDA MUNICIPAL INCOME TRUST III
AGREEMENT AND DECLARATION OF TRUST
Dated as of August 19, 2002
TABLE OF CONTENTS
Page
ARTICLE I
The Trust.............................................1
1.1 Name.......................................................................................1
1.2 Definitions................................................................................2
ARTICLE II
Trustees..............................................3
2.1 Number and Qualification...................................................................3
2.2 Term and Election..........................................................................4
2.3 Resignation and Removal....................................................................4
2.4 Vacancies..................................................................................5
2.5 Meetings...................................................................................5
2.6 Trustee Action by Written Consent..........................................................6
2.7 Officers...................................................................................6
ARTICLE III
Powers and Duties of Trustees...................................6
3.1 General....................................................................................6
3.2 Investments................................................................................7
3.3 Legal Title................................................................................7
3.4 Issuance and Repurchase of Shares..........................................................7
3.5 Borrow Money or Utilize Leverage...........................................................8
3.6 Delegation; Committees.....................................................................8
3.7 Collection and Payment.....................................................................8
3.8 Expenses...................................................................................9
3.9 By-Laws....................................................................................9
3.10 Miscellaneous Powers.......................................................................9
3.11 Further Powers............................................................................10
ARTICLE IV
Advisory, Management and Distribution Arrangements........................10
4.1 Advisory and Management Arrangements......................................................10
4.2 Distribution Arrangements.................................................................11
4.3 Parties to Contract.......................................................................11
ARTICLE V
Limitations of Liability
and Indemnification.......................................11
5.1 No Personal Liability of Shareholders, Trustees, etc......................................11
5.2 Mandatory Indemnification.................................................................12
5.3 No Bond Required of Trustees..............................................................14
5.4 No Duty of Investigation; Notice in Trust Instruments, etc................................14
5.5 Reliance on Experts, etc..................................................................15
ARTICLE VI
Shares of Beneficial Interest..................................15
6.1 Beneficial Interest.......................................................................15
6.2 Other Securities..........................................................................15
6.3 Rights of Shareholders....................................................................16
6.4 Trust Only................................................................................16
6.5 Issuance of Shares........................................................................16
6.6 Register of Shares........................................................................16
6.7 Transfer Agent and Registrar..............................................................17
6.8 Transfer of Shares........................................................................17
6.9 Notices...................................................................................17
ARTICLE VII
Custodians............................................18
7.1 Appointment and Duties....................................................................18
7.2 Central Certificate System................................................................19
ARTICLE VIII
Redemption............................................19
8.1 Redemptions...............................................................................19
8.2 Disclosure of Holding.....................................................................19
ARTICLE IX
Determination of Net Asset Value
Net Income and Distributions...................................19
9.1 Net Asset Value...........................................................................19
9.2 Distributions to Shareholders.............................................................20
9.3 Power to Modify Foregoing Procedures......................................................20
ARTICLE X
Shareholders...........................................21
10.1 Meetings of Shareholders..................................................................21
10.2 Voting....................................................................................21
10.3 Notice of Meeting and Record Date.........................................................21
10.4 Quorum and Required Vote..................................................................22
10.5 Proxies, etc..............................................................................22
10.6 Reports...................................................................................23
10.7 Inspection of Records.....................................................................23
10.8 Shareholder Action by Written Consent.....................................................23
ARTICLE XI
Duration; Termination of Trust;
Amendment; Mergers, Etc......................................24
11.1 Duration..................................................................................24
11.2 Termination...............................................................................24
11.3 Amendment Procedure.......................................................................25
11.4 Merger, Consolidation and Sale of Assets..................................................26
11.5 Subsidiaries..............................................................................26
11.6 Conversion................................................................................27
11.7 Certain Transactions......................................................................27
ARTICLE XII
Miscellaneous..........................................29
12.1 Filing....................................................................................29
12.2 Resident Agent............................................................................30
12.3 Governing Law.............................................................................30
12.4 Counterparts..............................................................................30
12.5 Reliance by Third Parties.................................................................30
12.6 Provisions in Conflict with Law or Regulation.............................................30
BLACKROCK FLORIDA MUNICIPAL INCOME TRUST III
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made as of the 19th day of
August, 2002, by the Trustees hereunder, and by the holders of shares of
beneficial interest issued hereunder as hereinafter provided.
WHEREAS, this Trust has been formed to carry on business as set
forth more particularly hereinafter;
WHEREAS, this Trust is authorized to issue an unlimited number of
its shares of beneficial interest all in accordance with the provisions
hereinafter set forth;
WHEREAS, the Trustees have agreed to manage all property coming
into their hands as Trustees of a Delaware business trust in accordance
with the provisions hereinafter set forth; and
WHEREAS, the parties hereto intend that the Trust created by this
Declaration and the Certificate of Trust filed with the Secretary of State
of the State of Delaware on August 19, 2002 shall constitute a business
trust under the Delaware Business Trust Act and that this Declaration shall
constitute the governing instrument of such business trust.
NOW, THEREFORE, the Trustees hereby declare that they will hold
all cash, securities, and other assets which they may from time to time
acquire in any manner as Trustees hereunder IN TRUST to manage and dispose
of the same upon the following terms and conditions for the benefit of the
holders from time to time of shares of beneficial interest in this Trust as
hereinafter set forth.
ARTICLE I
The Trust
1.1 Name. This Trust shall be known as the "BlackRock Florida
Municipal Income Trust III" and the Trustees shall conduct the business of
the Trust under that name or any other name or names as they may from time
to time determine.
1.2 Definitions. As used in this Declaration, the following terms
shall have the following meanings:
The "1940 Act" refers to the Investment Company Act of 1940 and
the rules and regulations promulgated thereunder and exemptions granted
therefrom, as amended from time to time.
The terms "Affiliated Person", "Assignment", "Commission",
"Interested Person" and "Principal Underwriter" shall have the meanings
given them in the 1940 Act.
"By-Laws" shall mean the By-Laws of the Trust as amended from time
to time by the Trustees.
"Code" shall mean the Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder.
"Commission" shall mean the Securities and Exchange Commission.
"Declaration" shall mean this Agreement and Declaration of Trust,
as amended, supplemented or amended and restated from time to time.
"Delaware Business Trust Statute" shall mean the provisions of the
Delaware Business Trust Act, 12 Del. C.ss.3801, et. seq., as such Act may
be amended from time to time.
"Delaware General Corporation Law" means the Delaware General
Corporation Law, 8 Del. C.ss.100, et. seq., as amended from time to time.
"Fundamental Policies" shall mean the investment policies and
restrictions as set forth from time to time in any Prospectus or contained
in any current Registration Statement of the Trust filed with the
Commission or as otherwise adopted by the Trustees and the Shareholders in
accordance with the requirements of the 1940 Act and designated as
fundamental policies therein as they may be amended from time to time in
accordance with the requirements of the 1940 Act.
"Majority Shareholder Vote" shall mean a vote of "a majority of
the outstanding voting securities" (as such term is defined in the 0000
Xxx) of the Trust with each class and series of Shares voting together as a
single class, except to the extent otherwise required by the 1940 Act or
this Declaration with respect to any one or more classes or series of
Shares, in which case the applicable proportion of such classes or series
of Shares voting as a separate class or series, as case may be, also will
be required.
"Person" shall mean and include individuals, corporations,
partnerships, trusts, limited liability companies, associations, joint
ventures and other entities, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"Prospectus" shall mean the Prospectus of the Trust, if any, as in
effect from time to time under the Securities Act of 1933, as amended.
"Shareholders" shall mean as of any particular time the holders of
record of outstanding Shares of the Trust, at such time.
"Shares" shall mean the transferable units of beneficial interest
into which the beneficial interest in the Trust shall be divided from time
to time and includes fractions of Shares as well as whole Shares. In
addition, Shares also means any preferred shares or preferred units of
beneficial interest which may be issued from time to time, as described
herein. All references to Shares shall be deemed to be Shares of any or all
series or classes as the context may require.
"Trust" shall mean the trust established by this Declaration, as
amended from time to time, inclusive of each such amendment.
"Trust Property" shall mean as of any particular time any and all
property, real or personal, tangible or intangible, which at such time is
owned or held by or for the account of the Trust or the Trustees in such
capacity.
"Trustees" shall mean the signatories to this Declaration, so long
as they shall continue in office in accordance with the terms hereof, and
all other persons who at the time in question have been duly elected or
appointed and have qualified as trustees in accordance with the provisions
hereof and are then in office.
ARTICLE II
Trustees
2.1 Number and Qualification. Prior to a public offering of Shares
there may be a sole Trustee. Thereafter, the number of Trustees shall be
determined by a written instrument signed by a majority of the Trustees
then in office, provided that the number of Trustees shall be no less than
two or more than nine. No reduction in the number of Trustees shall have
the effect of removing any Trustee from office prior to the expiration of
his term. An individual nominated as a Trustee shall be at least 21 years
of age and not older than 80 years of age at the time of nomination and not
under legal disability. Trustees need not own Shares and may succeed
themselves in office.
2.2 Term and Election. The Board of Trustees shall be divided into
three classes, designated Class I, Class II and Class III. Each class shall
consist, as nearly as may be possible, of one-third of the total number of
trustees constituting the entire Board of Trustees. Within the limits above
specified, the number of the Trustees in each class shall be determined by
resolution of the Board of Trustees. The term of office of the first class
shall expire on the date of the first annual meeting of Shareholders or
special meeting in lieu thereof following the effective date of the
Registration Statement relating to the Shares under the Securities Act of
1933, as amended. The term of office of the second class shall expire on
the date of the second annual meeting of Shareholders or special meeting in
lieu thereof following the effective date of the Registration Statement
relating to the Shares under the Securities Act of 1933, as amended. The
term of office of the third class shall expire on the date of the third
annual meeting of Shareholders or special meeting in lieu thereof following
the effective date of the Registration Statement relating to the Shares
under the Securities Act of 1933, as amended. 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 special
meeting in lieu thereof following such expiration to succeed the Trustees
whose terms of office expire. The Trustees shall be elected at an annual
meeting of the Shareholders or special meeting in lieu thereof called for
that purpose, except as provided in Section 2.3 of this Article and each
Trustee elected shall hold office until his or her successor shall have
been elected and shall have qualified. The term of office of a Trustee
shall terminate and a vacancy shall occur in the event of the death,
resignation, removal, bankruptcy, adjudicated incompetence or other
incapacity to perform the duties of the office, or removal, of a Trustee.
2.3 Resignation and Removal. Any of the Trustees may resign their
trust (without need for prior or subsequent accounting) by an instrument in
writing signed by such Trustee and delivered or mailed to the Trustees or
the Chairman, if any, the President or the Secretary and such resignation
shall be effective upon such delivery, or at a later date according to the
terms of the instrument. Any of the Trustees may be removed (provided the
aggregate number of Trustees after such removal shall not be less than the
minimum number required by Section 2.1 hereof) for cause only, and not
without cause, and only by action taken by a majority of the remaining
Trustees followed by the holders of at least seventy-five percent (75%) of
the Shares then entitled to vote in an election of such Trustee. Upon the
resignation or removal of a Trustee, each such resigning or removed Trustee
shall execute and deliver such documents as the remaining Trustees shall
require for the purpose of conveying to the Trust or the remaining Trustees
any Trust Property held in the name of such resigning or removed Trustee.
Upon the incapacity or death of any Trustee, such Trustee's legal
representative shall execute and deliver on such Trustee's behalf such
documents as the remaining Trustees shall require as provided in the
preceding sentence.
2.4 Vacancies. Whenever a vacancy in the Board of Trustees shall
occur, the remaining Trustees may fill such vacancy by appointing an
individual having the qualifications described in this Article by a written
instrument signed by a majority of the Trustees then in office or may leave
such vacancy unfilled or may reduce the number of Trustees; provided the
aggregate number of Trustees after such reduction shall not be less than
the minimum number required by Section 2.1 hereof; provided, further, that
if the Shareholders of any class or series of Shares are entitled
separately to elect one or more Trustees, a majority of the remaining
Trustees or the sole remaining Trustee elected by that class or series may
fill any vacancy among the number of Trustees elected by that class or
series. Any vacancy created by an increase in Trustees may be filled by the
appointment of an individual having the qualifications described in this
Article made by a written instrument signed by a majority of the Trustees
then in office. No vacancy shall operate to annul this Declaration or to
revoke any existing agency created pursuant to the terms of this
Declaration. Whenever a vacancy in the number of Trustees shall occur,
until such vacancy is filled as provided herein, the Trustees in office,
regardless of their number, shall have all the powers granted to the
Trustees and shall discharge all the duties imposed upon the Trustees by
this Declaration.
2.5 Meetings. Meetings of the Trustees shall be held from time to
time upon the call of the Chairman, if any, or the President or any two
Trustees. Regular meetings of the Trustees may be held without call or
notice at a time and place fixed by the By-Laws or by resolution of the
Trustees. Notice of any other meeting shall be given by the Secretary and
shall be delivered to the Trustees orally not less than 24 hours, or in
writing not less than 72 hours, before the meeting, but may be waived in
writing by any Trustee either before or after such meeting. The attendance
of a Trustee at a meeting shall constitute a waiver of notice of such
meeting except where a Trustee attends a meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting
has not been properly called or convened. A quorum for all meetings of the
Trustees shall be one-third, but not less than two, of the Trustees. Unless
provided otherwise in this Declaration and except as required under the
1940 Act, any action of the Trustees may be taken at a meeting by vote of a
majority of the Trustees present (a quorum being present) or without a
meeting by written consent of a majority of the Trustees.
Any committee of the Trustees, including an executive committee,
if any, may act with or without a meeting. A quorum for all meetings of any
such committee shall be one-third, but not less than two, of the members
thereof. Unless provided otherwise in this Declaration, any action of any
such committee may be taken at a meeting by vote of a majority of the
members present (a quorum being present) or without a meeting by written
consent of all of the members.
With respect to actions of the Trustees and any committee of the
Trustees, Trustees who are Interested Persons in any action to be taken may
be counted for quorum purposes under this Section and shall be entitled to
vote to the extent not prohibited by the 1940 Act.
All or any one or more Trustees may participate in a meeting of
the Trustees or any committee thereof by means of a conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other; participation in a
meeting pursuant to any such communications system shall constitute
presence in person at such meeting.
2.6 Trustee Action by Written Consent. Any action which may be
taken by Trustees by vote may be taken without a meeting if that number of
the Trustees, or members of a committee, as the case may be, required for
approval of such action at a meeting of the Trustees or of such committee
consent to the action in writing and the written consents are filed with
the records of the meetings of Trustees. Such consent shall be treated for
all purposes as a vote taken at a meeting of Trustees.
2.7 Officers. The Trustees shall elect a President, a Secretary
and a Treasurer and may elect a Chairman who shall serve at the pleasure of
the Trustees or until their successors are elected. The Trustees may elect
or appoint or may authorize the Chairman, if any, or President to appoint
such other officers or agents with such powers as the Trustees may deem to
be advisable. A Chairman shall, and the President, Secretary and Treasurer
may, but need not, be a Trustee.
ARTICLE III
Powers and Duties of Trustees
3.1 General. The Trustees shall owe to the Trust and its
Shareholders the same fiduciary duties as owed by directors of corporations
to such corporations and their stockholders under the Delaware General
Corporation Law. 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 Declaration. The Trustees may perform such acts as in
their sole discretion are proper for conducting the business of the Trust.
The enumeration of any specific power herein shall not be construed as
limiting the aforesaid power. Such powers of the Trustees may be exercised
without order of or resort to any court.
3.2 Investments. The Trustees shall have power, subject to the
Fundamental Policies in effect from time to time with respect to the Trust
to:
(a) manage, conduct, operate and carry on the business of
an investment company;
(b) subscribe for, invest in, reinvest in, purchase or
otherwise acquire, hold, pledge, sell, assign, transfer, exchange,
distribute or otherwise deal in or dispose of any and all sorts of
property, tangible or intangible, including but not limited to securities
of any type whatsoever, whether equity or non-equity, of any issuer,
evidences of indebtedness of any person and any other rights, interests,
instruments or property of any sort and to exercise any and all rights,
powers and privileges of ownership or interest in respect of any and all
such investments of every kind and description, including, without
limitation, the right to consent and otherwise act with respect thereto,
with power to designate one or more Persons to exercise any of said rights,
powers and privileges in respect of any of said investments. The Trustees
shall not be limited by any law limiting the investments which may be made
by fiduciaries.
3.3 Legal Title. Legal title to all the Trust Property shall be
vested in the Trustees as joint tenants except that the Trustees shall have
power to cause legal title to any Trust Property to be held by or in the
name of one or more of the Trustees, or in the name of the Trust, or in the
name of any other Person as nominee, custodian or pledgee, on such terms as
the Trustees may determine, provided that the interest of the Trust therein
is appropriately protected.
The right, title and interest of the Trustees in the Trust
Property shall vest automatically in each person who may hereafter become a
Trustee upon his due election and qualification. Upon the ceasing of any
person to be a Trustee for any reason, such person shall automatically
cease to have any right, title or interest in any of the Trust Property,
and the right, title and interest of such Trustee in the Trust Property
shall vest automatically in the remaining Trustees. Such vesting and
cessation of title shall be effective whether or not conveyancing documents
have been executed and delivered.
3.4 Issuance and Repurchase of Shares. The Trustees shall have the
power to issue, sell, repurchase, redeem, retire, cancel, acquire, hold,
resell, reissue, dispose of, transfer, and otherwise deal in, Shares,
including Shares in fractional denominations, and, subject to the more
detailed provisions set forth in Articles VIII and IX, to apply to any such
repurchase, redemption, retirement, cancellation or acquisition of Shares
any funds or property whether capital or surplus or otherwise, to the full
extent now or hereafter permitted corporations formed under the Delaware
General Corporation Law.
3.5 Borrow Money or Utilize Leverage. Subject to the Fundamental
Policies in effect from time to time with respect to the Trust, the
Trustees shall have the power to borrow money or otherwise obtain credit or
utilize leverage to the maximum extent permitted by law or regulation as
such may be needed from time to time and to secure the same by mortgaging,
pledging or otherwise subjecting as security the assets of the Trust,
including the lending of portfolio securities, and to endorse, guarantee,
or undertake the performance of any obligation, contract or engagement of
any other person, firm, association or corporation.
3.6 Delegation; Committees. The Trustees shall have the power,
consistent with their continuing exclusive authority over the management of
the Trust and the Trust Property, to delegate from time to time to such of
their number or to officers, employees or agents of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Trustees or otherwise as the Trustees may deem
expedient, to at least the same extent as such delegation is permitted to
directors of corporations formed under the Delaware General Corporation Law
and is permitted by the 1940 Act, as well as any further delegations the
Trustees may determine to be desirable, expedient or necessary in order to
effect the purpose hereof. The Trustees may designate an executive
committee which shall have all authority of the entire Board of Trustees
except such committee cannot declare dividends except to the extent
specifically delegated by the Board of Trustees and cannot authorize
removal of a trustee or any merger, consolidation or sale of substantially
all of the assets of the Trust.
3.7 Collection and Payment. The Trustees shall have power to
collect all property due to the Trust; to pay all claims, including taxes,
against the Trust Property or the Trust, the Trustees or any officer,
employee or agent of the Trust; to prosecute, defend, compromise or abandon
any claims relating to the Trust Property or the Trust, or the Trustees or
any officer, employee or agent of the Trust; to foreclose any security
interest securing any obligations, by virtue of which any property is owed
to the Trust; and to enter into releases, agreements and other instruments.
Except to the extent required for a corporation formed under the Delaware
General Corporation Law, the Shareholders shall have no power to vote as to
whether or not a court action, legal 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.
3.8 Expenses. The Trustees shall have power to incur and pay out
of the assets or income of the Trust any expenses which in the opinion of
the Trustees are necessary or incidental to carry out any of the purposes
of this Declaration, and the business of the Trust, and to pay reasonable
compensation from the funds of the Trust to themselves as Trustees. The
Trustees shall fix the compensation of all officers, employees and
Trustees. The Trustees may pay themselves such compensation for special
services, including legal, underwriting, syndicating and brokerage
services, as they in good faith may deem reasonable and reimbursement for
expenses reasonably incurred by themselves on behalf of the Trust. The
Trustees shall have the power, as frequently as they may determine, to
cause each Shareholder to pay directly, in advance or arrears, for charges
of distribution, of the custodian or transfer, Shareholder servicing or
similar agent, a pro rata amount as defined from time to time by the
Trustees, by setting off such charges due from such Shareholder from
declared but unpaid dividends or distributions owed such Shareholder and/or
by reducing the number of shares in the account of such Shareholder by that
number of full and/or fractional Shares which represents the outstanding
amount of such charges due from such Shareholder.
3.9 By-Laws. The Trustees shall have the exclusive authority to
adopt and from time to time amend or repeal By-Laws for the conduct of the
business of the Trust.
3.10 Miscellaneous Powers. The Trustees shall have the power to:
(a) employ or contract with such Persons as the Trustees may deem desirable
for the transaction of the business of the Trust; (b) enter into joint
ventures, partnerships and any other combinations or associations; (c)
purchase, and pay for out of Trust Property, insurance policies insuring
the Shareholders, Trustees, officers, employees, agents, investment
advisors, distributors, selected dealers or independent contractors of the
Trust against all claims arising by reason of holding any such position or
by reason of any action taken or omitted by any such Person in such
capacity, whether or not constituting negligence, or whether or not the
Trust would have the power to indemnify such Person against such liability;
(d) establish pension, profit-sharing, share purchase, and other
retirement, incentive and benefit plans for any Trustees, officers,
employees and agents of the Trust; (e) make donations, irrespective of
benefit to the Trust, for charitable, religious, educational, scientific,
civic or similar purposes; (f) to the extent permitted by law, indemnify
any Person with whom the Trust has dealings, including without limitation
any advisor, administrator, manager, transfer agent, custodian, distributor
or selected dealer, or any other person as the Trustees may see fit to such
extent as the Trustees shall determine; (g) guarantee indebtedness or
contractual obligations of others; (h) determine and change the fiscal year
of the Trust and the method in which its accounts shall be kept; (i)
notwithstanding the Fundamental Policies of the Trust, convert the Trust to
a master-feeder structure; provided, however, the Trust obtains the
approval of shareholders holding at least a majority of the Trust's Shares
present at a meeting of Shareholders at which a quorum is present and (j)
adopt a seal for the Trust but the absence of such seal shall not impair
the validity of any instrument executed on behalf of the Trust.
3.11 Further Powers. The Trustees shall have the 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, and in any and all commonwealths, territories,
dependencies, colonies, possessions, agencies or instrumentalities of the
United States of America and of foreign governments, 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 Declaration, the
presumption shall be in favor of a grant of power to the Trustees. The
Trustees will not be required to obtain any court order to deal with the
Trust Property.
ARTICLE IV
Advisory, Management and Distribution Arrangements
4.1 Advisory and Management Arrangements. Subject to the
requirements of applicable law as in effect from time to time, the Trustees
may in their discretion from time to time enter into advisory,
administration or management contracts (including, in each case, one or
more sub-advisory, sub-administration or sub-management contracts) whereby
the other party to any such contract shall undertake to furnish the
Trustees such advisory, administrative and management services, with
respect to the Trust as the Trustees shall from time to time consider
desirable and all upon such terms and conditions as the Trustees may in
their discretion determine. Notwithstanding any provisions of this
Declaration, the Trustees may authorize any advisor, administrator or
manager (subject to such general or specific instructions as the Trustees
may from time to time adopt) to effect investment transactions with respect
to the assets on behalf of the Trustees to the full extent of the power of
the Trustees to effect such transactions or may authorize any officer,
employee or Trustee to effect such transactions pursuant to recommendations
of any such advisor, administrator or manager (and all without further
action by the Trustees). Any such investment transaction shall be deemed to
have been authorized by all of the Trustees.
4.2 Distribution Arrangements. Subject to compliance with the 1940
Act, the Trustees may retain underwriters and/or placement agents to sell
Trust Shares. The Trustees may in their discretion from time to time enter
into one or more contracts, providing for the sale of the Shares of the
Trust, whereby the Trust may either agree to sell such Shares to the other
party to the contract or appoint such other party its sales agent for such
Shares. In either case, the contract shall be on such terms and conditions
as the Trustees may in their discretion determine not inconsistent with the
provisions of this Article IV or the By-Laws; and such contract may also
provide for the repurchase or sale of Shares of the Trust by such other
party as principal or as agent of the Trust and may provide that such other
party may enter into selected dealer agreements with registered securities
dealers and brokers and servicing and similar agreements with persons who
are not registered securities dealers to further the purposes of the
distribution or repurchase of the Shares of the Trust.
4.3 Parties to Contract. Any contract of the character described
in Sections 4.1 and 4.2 of this Article IV or in Article VII hereof may be
entered into with any Person, although one or more of the Trustees,
officers or employees of the Trust may be an officer, director, trustee,
shareholder, or member of such other party to the contract, and no such
contract shall be invalidated or rendered voidable by reason of the
existence of any such relationship, nor shall any Person holding such
relationship be liable merely by reason of such relationship for any loss
or expense to the Trust under or by reason of said contract or accountable
for any profit realized directly or indirectly therefrom, provided that the
contract when entered into was reasonable and fair and not inconsistent
with the provisions of this Article IV or the By-Laws. The same Person may
be the other party to contracts entered into pursuant to Sections 4.1 and
4.2 above or Article VII, and any individual may be financially interested
or otherwise affiliated with Persons who are parties to any or all of the
contracts mentioned in this Section 4.3.
ARTICLE V
Limitations of Liability
and Indemnification
5.1 No Personal Liability of Shareholders, Trustees, etc. No
Shareholder of the Trust shall be subject in such capacity to any personal
liability whatsoever to any Person in connection with Trust Property or the
acts, obligations or affairs of the Trust. Shareholders shall have the same
limitation of personal liability as is extended to stockholders of a
private corporation for profit incorporated under the Delaware General
Corporation Law. No Trustee or officer of the Trust shall be subject in
such capacity to any personal liability whatsoever to any Person, save only
liability to the Trust or its Shareholders arising from bad faith, willful
misfeasance, gross negligence or reckless disregard for his duty to such
Person; and, subject to the foregoing exception, all such Persons shall
look solely to the Trust Property for satisfaction of claims of any nature
arising in connection with the affairs of the Trust. If any Shareholder,
Trustee or officer, as such, of the Trust, is made a party to any suit or
proceeding to enforce any such liability, subject to the foregoing
exception, he shall not, on account thereof, be held to any personal
liability. Any repeal or modification of this Section 5.1 shall not
adversely affect any right or protection of a Trustee or officer of the
Trust existing at the time of such repeal or modification with respect to
acts or omissions occurring prior to such repeal or modification.
5.2 Mandatory Indemnification. (a) The Trust hereby agrees to
indemnify each person who at any time serves as a Trustee or officer of the
Trust (each such person being an "indemnitee") against any liabilities and
expenses, including amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, and reasonable counsel fees
reasonably incurred by such indemnitee in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or
criminal, before any court or administrative or investigative body in which
he may be or may have been involved as a party or otherwise or with which
he may be or may have been threatened, while acting in any capacity set
forth in this Article V by reason of his having acted in any such capacity,
except with respect to any matter as to which he shall not have acted in
good faith in the reasonable belief that his action was in the best
interest of the Trust or, in the case of any criminal proceeding, as to
which he shall have had reasonable cause to believe that the conduct was
unlawful, provided, however, that no indemnitee shall be indemnified
hereunder against any liability to any person or any expense of such
indemnitee arising by reason of (i) willful misfeasance, (ii) bad faith,
(iii) gross negligence, or (iv) reckless disregard of the duties involved
in the conduct of his position (the conduct referred to in such clauses (i)
through (iv) being sometimes referred to herein as "disabling conduct").
Notwithstanding the foregoing, with respect to any action, suit or other
proceeding voluntarily prosecuted by any indemnitee as plaintiff,
indemnification shall be mandatory only if the prosecution of such action,
suit or other proceeding by such indemnitee (1) was authorized by a
majority of the Trustees or (2) was instituted by the indemnitee to enforce
his or her rights to indemnification hereunder in a case in which the
indemnitee is found to be entitled to such indemnification. The rights to
indemnification set forth in this Declaration shall continue as to a person
who has ceased to be a Trustee or officer of the Trust and shall inure to
the benefit of his or her heirs, executors and personal and legal
representatives. No amendment or restatement of this Declaration or repeal
of any of its provisions shall limit or eliminate any of the benefits
provided to any person who at any time is or was a Trustee or officer of
the Trust or otherwise entitled to indemnification hereunder in respect of
any act or omission that occurred prior to such amendment, restatement or
repeal.
(b) Notwithstanding the foregoing, no indemnification
shall be made hereunder unless there has been a determination (i) by a
final decision on the merits by a court or other body of competent
jurisdiction before whom the issue of entitlement to indemnification
hereunder was brought that such indemnitee is entitled to indemnification
hereunder or, (ii) in the absence of such a decision, by (1) a majority
vote of a quorum of those Trustees who are neither "interested persons" of
the Trust (as defined in Section 2(a)(19) of the 0000 Xxx) nor parties to
the proceeding ("Disinterested Non-Party Trustees"), that the indemnitee is
entitled to indemnification hereunder, or (2) if such quorum is not
obtainable or even if obtainable, if such majority so directs, independent
legal counsel in a written opinion concludes that the indemnitee should be
entitled to indemnification hereunder. All determinations to make advance
payments in connection with the expense of defending any proceeding shall
be authorized and made in accordance with the immediately succeeding
paragraph (c) below.
(c) The Trust shall make advance payments in connection
with the expenses of defending any action with respect to which
indemnification might be sought hereunder if the Trust receives a written
affirmation by the indemnitee of the indemnitee's good faith belief that
the standards of conduct necessary for indemnification have been met and a
written undertaking to reimburse the Trust unless it is subsequently
determined that the indemnitee is entitled to such indemnification and if a
majority of the Trustees determine that the applicable standards of conduct
necessary for indemnification appear to have been met. In addition, at
least one of the following conditions must be met: (i) the indemnitee shall
provide adequate security for his undertaking, (ii) the Trust shall be
insured against losses arising by reason of any lawful advances, or (iii) a
majority of a quorum of the Disinterested Non-Party Trustees, or if a
majority vote of such quorum so direct, independent legal counsel in a
written opinion, shall conclude, based on a review of readily available
facts (as opposed to a full trial-type inquiry), that there is substantial
reason to believe that the indemnitee ultimately will be found entitled to
indemnification.
(d) The rights accruing to any indemnitee under these
provisions shall not exclude any other right which any person may have or
hereafter acquire under this Declaration, the By-Laws of the Trust, any
statute, agreement, vote of stockholders or Trustees who are "disinterested
persons" (as defined in Section 2(a)(19) of the 0000 Xxx) or any other
right to which he or she may be lawfully entitled.
(e) Subject to any limitations provided by the 1940 Act
and this Declaration, the Trust shall have the power and authority to
indemnify and provide for the advance payment of expenses to employees,
agents and other Persons providing services to the Trust or serving in any
capacity at the request of the Trust to the full extent corporations
organized under the Delaware General Corporation Law may indemnify or
provide for the advance payment of expenses for such Persons, provided that
such indemnification has been approved by a majority of the Trustees.
5.3 No Bond Required of Trustees. No Trustee shall, as such, be
obligated to give any bond or other security for the performance of any of
his duties hereunder.
5.4 No Duty of Investigation; Notice in Trust Instruments, etc. No
purchaser, lender, transfer agent or other person dealing with the Trustees
or with any officer, employee or agent of the Trust shall be bound to make
any inquiry concerning the validity of any transaction purporting to be
made by the Trustees or by said officer, employee or agent or be liable for
the application of money or property paid, loaned, or delivered to or on
the order of the Trustees or of said officer, employee or agent. Every
obligation, contract, undertaking, instrument, certificate, Share, other
security of the Trust, and every other act or thing whatsoever executed in
connection with the Trust shall be conclusively taken to have been executed
or done by the executors thereof only in their capacity as Trustees under
this Declaration or in their capacity as officers, employees or agents of
the Trust. The Trustees may maintain insurance for the protection of the
Trust Property, its Shareholders, Trustees, officers, employees and agents
in such amount as the Trustees shall deem adequate to cover possible tort
liability, and such other insurance as the Trustees in their sole judgment
shall deem advisable or is required by the 1940 Act.
5.5 Reliance on Experts, etc. Each Trustee and officer or employee
of the Trust shall, in the performance of its duties, be fully and
completely justified and protected with regard to any act or any failure to
act resulting from reliance in good faith upon the books of account or
other records of the Trust, upon an opinion of counsel, or upon reports
made to the Trust by any of the Trust's officers or employees or by any
advisor, administrator, manager, distributor, selected dealer, accountant,
appraiser or other expert or consultant selected with reasonable care by
the Trustees, officers or employees of the Trust, regardless of whether
such counsel or expert may also be a Trustee.
ARTICLE VI
Shares of Beneficial Interest
6.1 Beneficial Interest. The interest of the beneficiaries
hereunder shall be divided into an unlimited number of transferable shares
of beneficial interest, par value $.001 per share. All Shares issued in
accordance with the terms hereof, including, without limitation, Shares
issued in connection with a dividend in Shares or a split of Shares, shall
be fully paid and, except as provided in the last sentence of Section 3.8,
nonassessable when the consideration determined by the Trustees (if any)
therefor shall have been received by the Trust.
6.2 Other Securities. The Trustees may, subject to the Fundamental
Policies and the requirements of the 1940 Act, authorize and issue such
other securities of the Trust as they determine to be necessary, desirable
or appropriate, having such terms, rights, preferences, privileges,
limitations and restrictions as the Trustees see fit, including preferred
interests, debt securities or other senior securities. To the extent that
the Trustees authorize and issue preferred shares of any class or series,
they are hereby authorized and empowered to amend or supplement this
Declaration as they deem necessary or appropriate, including to comply with
the requirements of the 1940 Act or requirements imposed by the rating
agencies or other Persons, all without the approval of Shareholders. Any
such supplement or amendment shall be filed as is necessary. The Trustees
are also authorized to take such actions and retain such persons as they
see fit to offer and sell such securities.
6.3 Rights of Shareholders. The Shares shall be personal property
giving only the rights in this Declaration specifically set forth. The
ownership of the Trust Property of every description and the right to
conduct any business herein before described are vested exclusively in the
Trustees, and the Shareholders shall have no interest therein other than
the beneficial interest conferred by their Shares, and they shall have no
right to call for any partition or division of any property, profits,
rights or interests of the Trust nor can they be called upon to share or
assume any losses of the Trust or, subject to the right of the Trustees to
charge certain expenses directly to Shareholders, as provided in the last
sentence of Section 3.8, suffer an assessment of any kind by virtue of
their ownership of Shares. The Shares shall not entitle the holder to
preference, preemptive, appraisal, conversion or exchange rights (except as
specified in this Section 6.3, in Section 11.4 or as specified by the
Trustees when creating the Shares, as in preferred shares).
6.4 Trust Only. It is the intention of the Trustees to create only
the relationship of Trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention of the Trustees to
create a general partnership, limited partnership, joint stock association,
corporation, bailment or any form of legal relationship other than a trust.
Nothing in this Declaration shall be construed to make the Shareholders,
either by themselves or with the Trustees, partners or members of a joint
stock association.
6.5 Issuance of Shares. The Trustees, in their discretion, may
from time to time without vote of the Shareholders issue Shares including
preferred shares that may have been established pursuant to Section 6.2, 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, including cash or property, at such time or times, and on
such terms as the Trustees may determine, 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. The
Trustees may from time to time divide or combine the Shares into a greater
or lesser number without thereby changing the proportionate beneficial
interest in such Shares. Issuances and redemptions of Shares may be made in
whole Shares and/or l/l,000ths of a Share or multiples thereof as the
Trustees may determine.
6.6 Register of Shares. A register shall be kept at the offices of
the Trust or any transfer agent duly appointed by the Trustees under the
direction of the Trustees which shall contain the names and addresses of
the Shareholders and the number of Shares held by them respectively and a
record of all transfers thereof. Separate registers shall be established
and maintained for each class or series of Shares. Each such register shall
be conclusive as to who are the holders of the Shares of the applicable
class or series of Shares and who shall be entitled to receive dividends or
distributions or otherwise to exercise or enjoy the rights of Shareholders.
No Shareholder shall be entitled to receive payment of any dividend or
distribution, nor to have notice given to him as herein provided, until he
has given his address to a transfer agent or such other officer or agent of
the Trustees as shall keep the register for entry thereon. It is not
contemplated that certificates will be issued for the Shares; however, the
Trustees, in their discretion, may authorize the issuance of share
certificates and promulgate appropriate fees therefore and rules and
regulations as to their use.
6.7 Transfer Agent and Registrar. The Trustees shall have power to
employ a transfer agent or transfer agents, and a registrar or registrars,
with respect to the Shares. The transfer agent or transfer agents may keep
the applicable register and record therein, the original issues and
transfers, if any, of the said Shares. Any such transfer agents and/or
registrars shall perform the duties usually performed by transfer agents
and registrars of certificates of stock in a corporation, as modified by
the Trustees.
6.8 Transfer of Shares. Shares shall be transferable on the
records of the Trust only by the record holder thereof or by its agent
thereto duly authorized in writing, upon delivery to the Trustees or a
transfer agent of the Trust of a duly executed instrument of transfer,
together with such evidence of the genuineness of each such execution and
authorization and of other matters as may reasonably be required. Upon such
delivery the transfer shall be recorded on the applicable register of the
Trust. Until such record is made, the Shareholder of record shall be deemed
to be the holder of such Shares for all purposes hereof and neither the
Trustees nor any transfer agent or registrar nor any officer, employee or
agent of the Trust shall be affected by any notice of the proposed
transfer.
Any person becoming entitled to any Shares in consequence of the
death, bankruptcy, or incompetence of any Shareholder, or otherwise by
operation of law, shall be recorded on the applicable register of Shares as
the holder of such Shares upon production of the proper evidence thereof to
the Trustees or a transfer agent of the Trust, but until such record is
made, the Shareholder of record shall be deemed to be the holder of such
for all purposes hereof, and neither the Trustees nor any transfer agent or
registrar nor any officer or agent of the Trust shall be affected by any
notice of such death, bankruptcy or incompetence, or other operation of
law.
6.9 Notices. Any and all notices to which any Shareholder
hereunder may be entitled and any and all communications shall be deemed
duly served or given if mailed, postage prepaid, addressed to any
Shareholder of record at his last known address as recorded on the
applicable register of the Trust.
ARTICLE VII
Custodians
7.1 Appointment and Duties. The Trustees shall at all times employ
a custodian or custodians, meeting the qualifications for custodians for
portfolio securities of investment companies contained in the 1940 Act, as
custodian with respect to the assets of the Trust. Any custodian shall have
authority as agent of the Trust with respect to which it is acting as
determined by the custodian agreement or agreements, but subject to such
restrictions, limitations and other requirements, if any, as may be
contained in the By-Laws of the Trust and the 1940 Act:
(1) to hold the securities owned by the Trust and deliver
the same upon written order;
(2) to receive any receipt for any moneys due to the
Trust and deposit the same in its own banking department (if a
bank) or elsewhere as the Trustees may direct;
(3) to disburse such funds upon orders or vouchers;
(4) if authorized by the Trustees, to keep the books and
accounts of the Trust and furnish clerical and accounting
services; and
(5) if authorized to do so by the Trustees, to compute
the net income or net asset value of the Trust;
all upon such basis of compensation as may be agreed upon between the
Trustees and the custodian.
The Trustees may also authorize each custodian to employ one or
more sub-custodians from time to time to perform such of the acts and
services of the custodian and upon such terms and conditions, as may be
agreed upon between the custodian and such sub-custodian and approved by
the Trustees, provided that in every case such sub-custodian shall meet the
qualifications for custodians contained in the 1940 Act.
7.2 Central Certificate System. Subject to such rules, regulations
and orders as the Commission may adopt, the Trustees may direct the
custodian to deposit all or any part of the securities owned by the Trust
in a system for the central handling of securities established by a
national securities exchange or a national securities association
registered with the Commission under the Securities Exchange Act of 1934,
or such other Person as may be permitted by the Commission, or otherwise in
accordance with the 1940 Act, pursuant to which system all securities of
any particular class of any issuer deposited within the system are treated
as fungible and may be transferred or pledged by bookkeeping entry without
physical delivery of such securities, provided that all such deposits shall
be subject to withdrawal only upon the order of the Trust.
ARTICLE VIII
Redemption
8.1 Redemptions. The Shares of the Trust are not redeemable by the
holders.
8.2 Disclosure of Holding. The holders of Shares or other
securities of the Trust shall upon demand disclose to the Trustees in
writing such information with respect to direct and indirect ownership of
Shares or other securities of the Trust as the Trustees deem necessary to
comply with the provisions of the Code, the 1940 or other applicable laws
or regulations, or to comply with the requirements of any other taxing or
regulatory authority.
ARTICLE IX
Determination of Net Asset Value
Net Income and Distributions
9.1 Net Asset Value. The net asset value of each outstanding Share
of the Trust shall be determined at such time or times on such days as the
Trustees may determine, in accordance with the 1940 Act. The method of
determination of net asset value shall be determined by the Trustees and
shall be as set forth in the Prospectus or as may otherwise be determined
by the Trustees. The power and duty to make the net asset value
calculations may be delegated by the Trustees and shall be as generally set
forth in the Prospectus or as may otherwise be determined by the Trustees.
9.2 Distributions to Shareholders. (a) The Trustees shall from
time to time distribute ratably among the Shareholders of any class of
Shares, or any series of any such class, in accordance with the number of
outstanding full and fractional Shares of such class or any series of such
class, such proportion of the net profits, surplus (including paid-in
surplus), capital, or assets held by the Trustees as they may deem proper
or as may otherwise be determined in accordance with this Declaration. Any
such distribution may be made in cash or property (including without
limitation any type of obligations of the Trust or any assets thereof) or
Shares of any class or series or any combination thereof, and the Trustees
may distribute ratably among the Shareholders of any class of shares or
series of any such class, in accordance with the number of outstanding full
and fractional Shares of such class or any series of such class, additional
Shares of any class or series in such manner, at such times, and on such
terms as the Trustees may deem proper or as may otherwise be determined in
accordance with this Declaration.
(b) Distributions pursuant to this Section 9.2 may be
among the Shareholders of record of the applicable class or series of
Shares at the time of declaring a distribution or among the Shareholders of
record at such later date as the Trustees shall determine and specify.
(c) The Trustees may always retain from the net profits
such amount as they may deem necessary to pay the debts or expenses of the
Trust or to meet obligations of the Trust, or as they otherwise may deem
desirable to use in the conduct of its affairs or to retain for future
requirements or extensions of the business.
(d) Inasmuch as the computation of net income and gains
for Federal income tax purposes may vary from the computation thereof on
the books, the above provisions shall be interpreted to give the Trustees
the power in their discretion to distribute for any fiscal year as ordinary
dividends and as capital gains distributions, respectively, additional
amounts sufficient to enable the Trust to avoid or reduce liability for
taxes.
9.3 Power to Modify Foregoing Procedures. Notwithstanding any of
the foregoing provisions of this Article IX, the Trustees may prescribe, in
their absolute discretion except as may be required by the 1940 Act, such
other bases and times for determining the per share asset value of the
Trust's Shares or net income, or the declaration and payment of dividends
and distributions as they may deem necessary or desirable for any reason,
including to enable the Trust to comply with any provision of the 1940 Act,
or any securities exchange or association registered under the Securities
Exchange Act of 1934, or any order of exemption issued by the Commission,
all as in effect now or hereafter amended or modified.
ARTICLE X
Shareholders
10.1 Meetings of Shareholders. The Trust shall hold annual
meetings of the Shareholders (provided that the Trust's initial annual
meeting of Shareholders may occur up to one year after the completion of
its initial fiscal year). A special meeting of Shareholders may be called
at any time by a majority of the Trustees or the President and shall be
called by any Trustee for any proper purpose upon written request of
Shareholders of the Trust holding in the aggregate not less than 51% of the
outstanding Shares of the Trust or class or series of Shares having voting
rights on the matter, such request specifying the purpose or purposes for
which such meeting is to be called. Any shareholder meeting, including a
Special Meeting, shall be held within or without the State of Delaware on
such day and at such time as the Trustees shall designate.
10.2 Voting. Shareholders shall have no power to vote on any
matter except matters on which a vote of Shareholders is required by
applicable law, this Declaration or resolution of the Trustees. Except as
otherwise provided herein, any matter required to be submitted to
Shareholders and affecting one or more classes or series of Shares shall
require approval by the required vote of all the affected classes and
series of Shares voting together as a single class; provided, however, that
as to any matter with respect to which a separate vote of any class or
series of Shares is required by the 1940 Act, such requirement as to a
separate vote by that class or series of Shares shall apply in addition to
a vote of all the affected classes and series voting together as a single
class. Shareholders of a particular class or series of Shares shall not be
entitled to vote on any matter that affects only one or more other classes
or series of Shares. There shall be no cumulative voting in the election or
removal of Trustees.
10.3 Notice of Meeting and Record Date. Notice of all meetings of
Shareholders, stating the time, place and purposes of the meeting, shall be
given by the Trustees by mail to each Shareholder of record entitled to
vote thereat at its registered address, mailed at least 10 days and not
more than 90 days before the meeting or otherwise in compliance with
applicable law. Only the business stated in the notice of the meeting shall
be considered at such meeting. Any adjourned meeting may be held as
adjourned one or more times without further notice not later than 120 days
after the record date. For the purposes of determining the Shareholders who
are entitled to notice of and to vote at any meeting the Trustees may,
without closing the transfer books, fix a date not more than 90 nor less
than 10 days prior to the date of such meeting of Shareholders as a record
date for the determination of the Persons to be treated as Shareholders of
record for such purposes.
10.4 Quorum and Required Vote. (a) The holders of a majority of
the Shares entitled to vote on any matter at a meeting present in person or
by proxy shall constitute a quorum at such meeting of the Shareholders for
purposes of conducting business on such matter. The absence from any
meeting, in person or by proxy, of a quorum of Shareholders for action upon
any given matter shall not prevent action at such meeting upon any other
matter or matters which may properly come before the meeting, if there
shall be present thereat, in person or by proxy, a quorum of Shareholders
in respect of such other matters.
(b) Subject to any provision of applicable law, this
Declaration or a resolution of the Trustees specifying a greater or a
lesser vote requirement for the transaction of any item of business at any
meeting of Shareholders, (i) the affirmative vote of a majority of the
Shares present in person or represented by proxy and entitled to vote on
the subject matter shall be the act of the Shareholders with respect to
such matter, and (ii) where a separate vote of one or more classes or
series of Shares is required on any matter, the affirmative vote of a
majority of the Shares of such class or series of Shares present in person
or represented by proxy at the meeting shall be the act of the Shareholders
of such class or series with respect to such matter.
10.5 Proxies, etc. At any meeting of Shareholders, any holder of
Shares entitled to vote thereat may vote by properly executed proxy,
provided that no proxy shall be voted at any meeting unless it shall have
been placed on file with the Secretary, or with such other officer or agent
of the Trust as the Secretary may direct, for verification prior to the
time at which such vote shall be taken. Pursuant to a resolution of a
majority of the Trustees, proxies may be solicited in the name of one or
more Trustees or one or more of the officers or employees of the Trust. No
proxy shall be valid after the expiration of 11 months from the date
thereof, unless otherwise provided in the proxy. Only Shareholders of
record shall be entitled to vote. Each full Share shall be entitled to one
vote and fractional Shares shall be entitled to a vote of such fraction.
When any Share is held jointly by several persons, any one of them may vote
at any meeting in person or by proxy in respect of such Share, but if more
than one of them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to any vote
to be cast, such vote shall not be received in respect of such Share. 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. If the holder of any
such Share is a minor or a person of unsound mind, and subject to
guardianship or to the legal control of any other person as regards the
charge or management of such Share, he may vote by his guardian or such
other person appointed or having such control, and such vote may be given
in person or by proxy.
10.6 Reports. The Trustees shall cause to be prepared at least
annually and more frequently to the extent and in the form required by law,
regulation or any exchange on which Trust Shares are listed a report of
operations containing a balance sheet and statement of income and
undistributed income of the Trust prepared in conformity with generally
accepted accounting principles and an opinion of an independent public
accountant on such financial statements. Copies of such reports shall be
mailed to all Shareholders of record within the time required by the 1940
Act, and in any event within a reasonable period preceding the meeting of
Shareholders. The Trustees shall, in addition, furnish to the Shareholders
at least semi-annually to the extent required by law, interim reports
containing an unaudited balance sheet of the Trust as of the end of such
period and an unaudited statement of income and surplus for the period from
the beginning of the current fiscal year to the end of such period.
10.7 Inspection of Records. The records of the Trust shall be open
to inspection by Shareholders to the same extent as is permitted
shareholders of a corporation formed under the Delaware General Corporation
Law.
10.8 Shareholder Action by Written Consent. Any action which may
be taken by Shareholders by vote may be taken without a meeting if the
holders entitled to vote thereon of the proportion of Shares required for
approval of such action at a meeting of Shareholders pursuant to Section
10.4 consent to the action in writing and the 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.
ARTICLE XI
Duration; Termination of Trust;
Amendment; Mergers, Etc.
11.1 Duration. Subject to possible termination in accordance with
the provisions of Section 11.2 hereof, the Trust created hereby shall have
perpetual existence.
11.2 Termination. (a) The Trust may be dissolved, after a majority
of the Trustees have approved a resolution therefor, upon approval by not
less than 75% of the Shares of each class or series outstanding and
entitled to vote, voting as separate classes or series, unless such
resolution has been approved by 80% of the Trustees, in which case approval
by a Majority Shareholder Vote shall be required. Upon the dissolution of
the Trust:
(i) The Trust shall carry on no business except for the
purpose of winding up its affairs.
(ii) The Trustees shall proceed to wind up the affairs of
the Trust and all of the powers of the Trustees under this
Declaration shall continue until the affairs of the Trust shall
have been wound up, including the power to fulfill or discharge
the contracts of the Trust, collect its assets, sell, convey,
assign, exchange, merge where the Trust is not the survivor,
transfer or otherwise dispose of all or any part of the remaining
Trust Property to one or more Persons at public or private sale
for consideration which may consist in whole or in part in cash,
securities or other property of any kind, discharge or pay its
liabilities, and do all other acts appropriate to liquidate its
business; provided that any sale, conveyance, assignment,
exchange, merger in which the Trust is not the survivor, transfer
or other disposition of all or substantially all the Trust
Property of the Trust shall require approval of the principal
terms of the transaction and the nature and amount of the
consideration by Shareholders with the same vote as required to
open-end the Trust.
(iii) 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 may distribute the remaining Trust
Property, in cash or in kind or partly each, among the
Shareholders according to their respective rights.
(b) After the winding up and termination of the Trust and
distribution to the Shareholders as herein provided, a majority of the
Trustees shall execute and lodge among the records of the Trust an
instrument in writing setting forth the fact of such termination and shall
execute and file a certificate of cancellation with the Secretary of State
of the State of Delaware. Upon termination of the Trust, the Trustees shall
thereupon be discharged from all further liabilities and duties hereunder,
and the rights and interests of all Shareholders shall thereupon cease.
11.3 Amendment Procedure. (a) Except as provided in subsection (b)
of this Section 11.3, this Declaration may be amended, after a majority of
the Trustees have approved a resolution therefor, by the affirmative vote
of the holders of not less than a majority of the affected Shares. The
Trustees also may amend this Declaration without any vote of Shareholders
of any class of series to divide the Shares of the Trust into one or more
classes or additional classes, or one or more series of any such class or
classes, to change the name of the Trust or any class or series of Shares,
to make any change that does not adversely affect the relative rights or
preferences of any Shareholder, as they may deem necessary, or to conform
this Declaration to the requirements of the 1940 Act or any other
applicable federal laws or regulations including pursuant to Section 6.2 or
the requirements of the regulated investment company provisions of the
Code, but the Trustees shall not be liable for failing to do so.
(b) No amendment may be made to Section 2.1, Section 2.2,
Section 2.3, Section 3.9, Section 5.1, Section 5.2, Section 11.2(a), this
Section 11.3, Section 11.4, Section 11.6 or Section 11.7 of this
Declaration and no amendment may be made to this Declaration which would
change any rights with respect to any Shares of the Trust by reducing the
amount payable thereon upon liquidation of the Trust or by diminishing or
eliminating any voting rights pertaining thereto (except that this
provision shall not limit the ability of the Trustees to authorize, and to
cause the Trust to issue, other securities pursuant to Section 6.2), except
after a majority of the Trustees have approved a resolution therefor, by
the affirmative vote of the holders of not less than seventy-five percent
(75%) of the Shares of each affected class or series outstanding, voting as
separate classes or series, unless such amendment has been approved by 80%
of the Trustees, in which case approval by a Majority Shareholder Vote
shall be required. Nothing contained in this Declaration shall permit the
amendment of this Declaration to impair the exemption from personal
liability of the Shareholders, Trustees, officers, employees and agents of
the Trust or to permit assessments upon Shareholders.
(c) An amendment duly adopted by the requisite vote of
the Board of Trustees and, if required, the Shareholders as aforesaid,
shall become effective at the time of such adoption or at such other time
as may be designated by the Board of Trustees or Shareholders, as the case
may be. A certification in recordable form signed by a majority of the
Trustees setting forth an amendment and reciting that it was duly adopted
by the Trustees and, if required, the Shareholders as aforesaid, or a copy
of the Declaration, as amended, in recordable form, and executed by a
majority of the Trustees, shall be conclusive evidence of such amendment
when lodged among the records of the Trust or at such other time designated
by the Board.
Notwithstanding any other provision hereof, until such time as a
Registration Statement under the Securities Act of 1933, as amended,
covering the first public offering of Shares of the Trust shall have become
effective, this Declaration may be terminated or amended in any respect by
the affirmative vote of a majority of the Trustees or by an instrument
signed by a majority of the Trustees.
11.4 Merger, Consolidation and Sale of Assets. Except as provided
in Section 11.7, 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 the Trust Property or the property,
including its good will, upon such terms and conditions and for such
consideration when and as authorized by two-thirds of the Trustees and
approved by a Majority Shareholder Vote and any such merger, consolidation,
sale, lease or exchange shall be determined for all purposes to have been
accomplished under and pursuant to the statutes of the State of Delaware.
11.5 Subsidiaries. Without approval by Shareholders, the Trustees
may cause to be organized or assist in organizing one or more corporations,
trusts, partnerships, associations or other organizations to take over all
of the Trust Property or to carry on any business in which the Trust shall
directly or indirectly have any interest, and to sell, convey and transfer
all or a portion of the Trust Property to any such corporation, trust,
limited liability company, association or organization in exchange for the
shares or securities thereof, or otherwise, and to lend money to, subscribe
for the shares or securities of, and enter into any contracts with any such
corporation, trust, limited liability company, partnership, association or
organization, or any corporation, partnership, trust, limited liability
company, association or organization in which the Trust holds or is about
to acquire shares or any other interests.
11.6 Conversion. Notwithstanding any other provisions of this
Declaration or the By-Laws of the Trust, a favorable vote of a majority of
the Trustees then in office followed by the favorable vote of the holders
of not less than seventy-five percent (75%) of the Shares of each affected
class or series outstanding, voting as separate classes or series, shall be
required to approve, adopt or authorize an amendment to this Declaration
that makes the Shares a "redeemable security" as that term is defined in
the 1940 Act, unless such amendment has been approved by 80% of the
Trustees, in which case approval by a Majority Shareholder Vote shall be
required. Upon the adoption of a proposal to convert the Trust from a
"closed-end company" to an "open-end company" as those terms are defined by
the 1940 Act and the necessary amendments to this Declaration to permit
such a conversion of the Trust's outstanding Shares entitled to vote, 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, or any agreement between the Trust and
any national securities exchange.
11.7 Certain Transactions. (a) Notwithstanding any other provision
of this Declaration and subject to the exceptions provided in paragraph (d)
of this Section, the types of transactions described in paragraph (c) of
this Section shall require the affirmative vote or consent of a majority of
the Trustees then in office followed by the affirmative vote of the holders
of not less than seventy-five percent (75%) of the Shares of each affected
class or series outstanding, voting as separate classes or series, when a
Principal Shareholder (as defined in paragraph (b) of this Section) is a
party to the transaction. 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 class or series of preferred stock, whether
now or hereafter authorized, or any agreement between the Trust and any
national securities exchange.
(b) The term "Principal Shareholder" shall mean any
corporation, Person or other entity which is the beneficial owner, directly
or indirectly, of five percent (5%) or more of the outstanding Shares of
any class or series and shall include any affiliate or associate, as such
terms are defined in clause (ii) below, of a Principal Shareholder. For the
purposes of this Section, in addition to the Shares which a corporation,
Person or other entity beneficially owns directly, (a) any corporation,
Person or other entity shall be deemed to be the beneficial owner of any
Shares (i) which it has the right to acquire pursuant to any agreement or
upon exercise of conversion rights or warrants, or otherwise (but excluding
share options granted by the Trust) or (ii) which are beneficially owned,
directly or indirectly (including Shares deemed owned through application
of clause (i) above), by any other corporation, Person or entity with which
its "affiliate" or "associate" (as defined below) has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting
or disposing of Shares, or which is its "affiliate" or "associate" as those
terms are defined in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, and (b) the outstanding Shares shall
include Shares deemed owned through application of clauses (i) and (ii)
above but shall not include any other Shares which may be issuable pursuant
to any agreement, or upon exercise of conversion rights or warrants, or
otherwise.
(c) This Section shall apply to the following
transactions:
(i) The merger or consolidation of the Trust or any
subsidiary of the Trust with or into any Principal Shareholder.
(ii) The issuance of any securities of the Trust to any
Principal Shareholder for cash (other than pursuant to any
automatic dividend reinvestment plan).
(iii) The sale, lease or exchange of all or any
substantial part of the assets of the Trust to any Principal
Shareholder (except assets having an aggregate fair market value
of less than $1,000,000, aggregating for the purpose of such
computation all assets sold, leased or exchanged in any series of
similar transactions within a twelve-month period.)
(iv) The sale, lease or exchange to the Trust or any
subsidiary thereof, in exchange for securities of the Trust, of
any assets of any Principal Shareholder (except assets having an
aggregate fair market value of less than $1,000,000, aggregating
for the purposes of such computation all assets sold, leased or
exchanged in any series of similar transactions within a
twelve-month period).
(d) The provisions of this Section shall not be
applicable to (i) any of the transactions described in paragraph (c) of
this Section if 80% of the Trustees shall by resolution have approved a
memorandum of understanding with such Principal Shareholder with respect to
and substantially consistent with such transaction, in which case approval
by a Majority Shareholder Vote shall be the only vote of Shareholders
required by this Section, or (ii) any such transaction with any entity of
which a majority of the outstanding shares of all classes and series of a
stock normally entitled to vote in elections of directors is owned of
record or beneficially by the Trust and its subsidiaries.
(e) The Board of Trustees shall have the power and duty
to determine for the purposes of this Section on the basis of information
known to the Trust whether (i) a corporation, person or entity beneficially
owns five percent (5%) or more of the outstanding Shares of any class or
series, (ii) a corporation, person or entity is an "affiliate" or
"associate" (as defined above) of another, (iii) the assets being acquired
or leased to or by the Trust or any subsidiary thereof constitute a
substantial part of the assets of the Trust and have an aggregate fair
market value of less than $1,000,000, and (iv) the memorandum of
understanding referred to in paragraph (d) hereof is substantially
consistent with the transaction covered thereby. Any such determination
shall be conclusive and binding for all purposes of this Section.
ARTICLE XII
Miscellaneous
12.1 Filing. (a) This Declaration and any amendment or supplement
hereto shall be filed in such places as may be required or as the Trustees
deem appropriate. Each amendment or supplement shall be accompanied by a
certificate signed and acknowledged by a Trustee stating that such action
was duly taken in a manner provided herein, and shall, upon insertion in
the Trust's minute book, be conclusive evidence of all amendments contained
therein. A restated Declaration, containing the original Declaration and
all amendments and supplements theretofore made, may be executed from time
to time by a majority of the Trustees and shall, upon insertion in the
Trust's minute book, be conclusive evidence of all amendments and
supplements contained therein and may thereafter be referred to in lieu of
the original Declaration and the various amendments and supplements
thereto.
(b) The Trustees hereby authorize and direct a
Certificate of Trust, in the form attached hereto as Exhibit A, to be
executed and filed with the Office of the Secretary of State of the State
of Delaware in accordance with the Delaware Business Trust Act.
12.2 Resident Agent. The Trust shall maintain a resident agent in
the State of Delaware, which agent shall initially be The Corporation Trust
Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 The Trustees may
designate a successor resident agent, provided, however, that such
appointment shall not become effective until written notice thereof is
delivered to the office of the Secretary of the State.
12.3 Governing Law. This Declaration is executed by the Trustees
and delivered in the State of Delaware and with reference to the laws
thereof, and the rights of all parties and the validity and construction of
every provision hereof shall be subject to and construed according to laws
of said State and reference shall be specifically made to the Delaware
General Corporation Law as to the construction of matters not specifically
covered herein or as to which an ambiguity exists, although such law shall
not be viewed as limiting the powers otherwise granted to the Trustees
hereunder and any ambiguity shall be viewed in favor of such powers.
12.4 Counterparts. This Declaration may be simultaneously executed
in several counterparts, each of which shall be deemed to be an original,
and such counterparts, together, shall constitute one and the same
instrument, which shall be sufficiently evidenced by any such original
counterpart.
12.5 Reliance by Third Parties. Any certificate executed by an
individual who, according to the records of the Trust, or of any recording
office in which this Declaration may be recorded, appears to be a Trustee
hereunder, certifying to: (a) the number or identity of Trustees or
Shareholders, (b) the name of the Trust, (c) the due authorization of the
execution of any instrument or writing, (d) the form of any vote passed at
a meeting of Trustees or Shareholders, (e) the fact that the number of
Trustees or Shareholders present at any meeting or executing any written
instrument satisfies the requirements of this Declaration, (f) the form of
any By Laws adopted by or the identity of any officers elected by the
Trustees, or (g) the existence of any fact or facts which in any manner
relate to the affairs of the Trust, shall be conclusive evidence as to the
matters so certified in favor of any person dealing with the Trustees and
their successors.
12.6 Provisions in Conflict with Law or Regulation. (a) The
provisions of this Declaration are severable, and if the Trustees shall
determine, with the advice of counsel, that any of such provisions is in
conflict with the 1940 Act, the regulated investment company provisions of
the Internal Revenue Code or with other applicable laws and regulations,
the conflicting provision shall be deemed never to have constituted a part
of this Declaration; provided, however, that such determination shall not
affect any of the remaining provisions of this Declaration or render
invalid or improper any action taken or omitted prior to such
determination.
(b) If any provision of this Declaration 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 provision in any other jurisdiction
or any other provision of this Declaration in any jurisdiction.
IN WITNESS WHEREOF, the undersigned has caused these
presents to be executed as of the day and year first above written.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Sole Trustee
