EXHIBIT 2.a
XXXXXX INVESTMENT GRADE MUNICIPAL TRUST II
AMENDED AND RESTATED AGREEMENT
AND DECLARATION OF TRUST
The Agreement and Declaration of Trust made at Boston, Massachusetts on
October 2, 1992, as heretofore amended, is hereby amended and restated in its
entirety by the Trustees as of this 23rd day of July, 2001. This AMENDED AND
RESTATED AGREEMENT AND DECLARATION OF TRUST shall be effective as of July 23,
2001.
WITNESSETH that
WHEREAS, this Trust has been formed to carry on the business of an
investment company; and
WHEREAS, the Trustees have agreed to manage all property coming into
their hands as trustees of a Massachusetts voluntary association with
transferable shares in accordance with the provisions hereinafter set forth;
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 in this Trust as hereinafter set forth.
ARTICLE I
Name and Definitions
NAME
Section 1. This Trust shall be known as "XXXXXX MUNICIPAL BOND FUND", and
the Trustees shall conduct the business of the Trust under that name or any
other name as they may from time to time determine.
DEFINITIONS
Section 1. Whenever used herein, unless otherwise required by the context
or specifically provided:
(a) The "Trust" refers to the Massachusetts business trust established by
this Agreement and Declaration of Trust, as amended from time to time;
(b) "Trustees" refers to the Trustees of the Trust named herein or elected
in accordance with Article IV;
(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;
(e) The "1940 Act" refers to the Investment Company Act of 1940 and the
Rules and Regulations thereunder, all as amended from time to time;
(f) The terms "Affiliated Person", "Assignment", "Commission", "Interested
Person", "Principal Underwriter" and "Majority Shareholder Vote" (the 67%
or 50% requirement of the third sentence of Section 2(a)(42) of the 1940
Act, whichever may be applicable) shall have the meanings given them in the
1940 Act;
(g) "Declaration of Trust" shall mean this Agreement and Declaration of
Trust as amended or restated from time to time;
(h) "Bylaws" shall mean the Bylaws of the Trust as amended from time to
time;
(i) The term "class" or "class of Shares" refers to the division of Shares
into two or more classes as provided in Article III, Section 1 hereof; and
(j) The term "series" or "series of Shares" refers to the division of
Shares representing any class into two or more series as provided in
Article III, Section 1 hereof.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to provide investors a managed investment
primarily in securities, debt instruments and other instruments and rights of a
financial character.
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
2
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.
INVESTMENT IN THE TRUST
Section 3. The Trustees shall accept investments in the Trust from such
persons and on such terms and for such consideration, which may consist of cash
or tangible or intangible property or a combination thereof, as they or the
Bylaws from time to time authorize.
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.
3
ARTICLE IV
The Trustees
ELECTION
Section 1. Subject to the voting powers of one or more classes or series
of Shares as set forth in the Bylaws, in each year beginning in 1993, at the
annual meeting of Shareholders or at any special meeting held in lieu thereof,
or at any special meeting held before 1993, the Shareholders shall fix the
number of and elect a Board of not less than three Trustees each of whom shall
serve until the next annual meeting or special meeting in lieu thereof and until
the election and qualification of his or her successor, or until he or she
sooner dies, resigns or is removed. At any meeting called for the purpose and
subject to the voting powers of one or more classes of Shares as set forth in
the Bylaws, a Trustee may be removed by vote of the holders of two-thirds of the
outstanding Shares entitled to vote, except that a Trustee elected by the
holders of one or more classes of Shares may be removed only by vote of the
holders of two-thirds of the Shares entitled to vote for such Trustee. The
initial Trustees, each of whom shall serve until the first meeting of
Shareholders at which Trustees are elected and until his or her successor is
elected and qualified, or until he or she sooner dies, resigns or is removed,
shall be Xxxxxx Xxxxxx and Xxxxxxxx X. Xxxxxx and such other persons as the
Trustee or Trustees then in office shall, prior to any sale of Shares pursuant
to a public offering, elect.
EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE
Section 2. The death, declination, resignation, retirement, removal or
incapacity of the Trustees, or any one of them, shall not operate to annul the
Trust or to revoke any existing agency created pursuant to the terms of this
Declaration of Trust.
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
4
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.
Without limiting the foregoing, the Trustees shall have power and
authority:
(a) To invest and reinvest cash, and to hold cash uninvested;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, write options
on and lease any or all of the assets of the Trust except as otherwise
provided in Article IX, Section 5;
(c) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and
deliver proxies or powers of attorney to such person or persons as the
Trustees shall deem proper, granting to such person or persons such power
and discretion with relation to securities or property as the Trustees
shall deem proper;
(d) To exercise powers and rights of subscription or otherwise which in
any manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating any trust,
whether in bearer, unregistered or other negotiable form, or in the name of
the Trustees or of the Trust or in the name of a custodian, subcustodian or
other depositary or a nominee or nominees or otherwise;
(f) To the extent necessary or appropriate to give effect to the
preferences, special or relative rights and privileges of any classes or
series of Shares, to allocate assets, liabilities, income and expenses of
the Trust to a particular class or classes or series of Shares or to
apportion the same among two or more classes or series;
(g) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer, any security of which
is or was held in the Trust; to consent to any contract, lease, mortgage,
purchase or sale of property by such corporation or issuer, and to pay
calls or subscriptions with respect to any security held in the Trust;
(h) To join other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit
any security with, or transfer any security to, any such committee,
depositary or trustee, and to delegate to them such power and authority
with relation to any security (whether or not so deposited or transferred)
as the Trustees shall deem proper, and to agree to pay, and to pay, such
portion of the expenses and compensation of such committee, depositary or
trustee as the Trustees shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Trust or any matter in controversy, including but not limited
to claims for taxes;
5
(j) To enter into joint ventures, general or limited partnerships and any
other combinations or associations;
(k) To borrow funds;
(l) To endorse or guarantee the payment of any notes or other obligations
of any person; to make contracts of guaranty or suretyship, or otherwise
assume liability for payment thereof; and to mortgage and pledge the Trust
property or any part thereof to secure any of or all such obligations;
(m) To purchase and pay for entirely out of Trust property such insurance
as they may deem necessary or appropriate for the conduct of the business,
including, without limitation, insurance policies insuring the assets of
the Trust and payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, investment advisers or managers, principal
underwriters, or independent contractors of the Trust individually against
all claims and liabilities of every nature arising by reason of holding,
being or having held any such office or position, or by reason of any
action alleged to have been taken or omitted by any such person as
Shareholder, Trustee, officer, employee, agent, investment adviser or
manager, principal underwriter, or independent contractor, including any
action taken or omitted that may be determined to constitute negligence,
whether or not the Trust would have the power to indemnify such person
against such liability;
(n) To pay pensions for faithful service, as deemed appropriate by the
Trustees, and to adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of providing
such retirement and other benefits, for any or all of the Trustees,
officers, employees and agents of the Trust; and
(o) To purchase or otherwise acquire Shares.
The Trustees shall not in any way be bound or limited by any present or
future law or custom in regard to investments by trustees. Except as otherwise
provided herein or from time to time in the Bylaws, any action to be taken by
the Trustees may be taken by a majority of the Trustees present at a meeting of
the Trustees (a quorum being present), within or without Massachusetts,
including any meeting held by means of a conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time and participation by such means
shall constitute presence in person at a meeting, or by written consent of a
majority of the Trustees then in office.
PAYMENT OF EXPENSES BY TRUST
Section 4. The Trustees are authorized to pay, or to cause to be paid
out of the assets of the Trust, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the Trust, or in connection
with the management thereof, including, but not limited to, the
6
Trustees' compensation and such expenses and charges for the services of the
Trust's officers, employees, investment adviser or manager, principal
underwriter, auditor, counsel, custodian, transfer agent, Shareholder servicing
agent, and such other agents or independent contractors and such other expenses
and charges as the Trustees may deem necessary or proper to incur.
OWNERSHIP OF ASSETS OF THE TRUST
Section 5. Title to all of the assets of the Trust shall at all times be
considered as vested in the Trustees.
ADVISORY, MANAGEMENT AND DISTRIBUTION
Section 6. Subject to a favorable Majority Shareholder Vote, the Trustees
may, at any time and from time to time, contract for exclusive or nonexclusive
advisory and/or management services with any corporation, trust, association or
other organization (the "Manager"), every such contract to comply with such
requirements and restrictions as may be set forth in the Bylaws; and any such
contract may contain such other terms interpretive of or in addition to said
requirements and restrictions as the Trustees may determine, including, without
limitation, authority to determine from time to time what investments shall be
purchased, held, sold or exchanged and what portion, if any, of the assets of
the Trust shall be held uninvested and to make changes in the Trust's
investments. The Trustees may also, at any time and from time to time, contract
with the Manager or any other corporation, trust, association or other
organization, appointing it exclusive or nonexclusive distributor or principal
underwriter for the Shares, every such contract to comply with such requirements
and restrictions as may be set forth in the Bylaws; and any such contract may
contain such other terms interpretive of or in addition to said requirements and
restrictions as the Trustees may determine.
The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager,
adviser, principal underwriter or distributor or agent of or for any
corporation, trust, association, or other organization, or of or for any
parent or affiliate of any organization, with which an advisory or
management contract, or principal underwriter's or distributor's contract,
or transfer, Shareholder servicing or other agency contract may have been
or may hereafter be made, or that any such organization, or any parent or
affiliate thereof, is a Shareholder or has an interest in the Trust, or
that
(ii) any corporation, trust, association or other organization with
which an advisory or management contract or principal underwriter's or
distributor's contract, or transfer, Shareholder servicing or other agency
contract may have been or may hereafter be made also has an advisory or
management contract, or principal underwriter's or distributor's contract,
or transfer, Shareholder servicing or other agency contract with one or
more other corporations, trusts, associations, or other organizations, or
has other business or interests
7
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing
the same or create any liability or accountability to the Trust or its
Shareholders.
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 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.
8
VOTING POWER AND MEETINGS
Section 2. There shall be an annual meeting of the Shareholders in each
year beginning in 1993 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 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 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 in 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.
9
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.
ADDITIONAL PROVISIONS
Section 5. The Bylaws nay 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.
ARTICLE VII
Compensation and Limitation of Liability of Trustees
COMPENSATION
Section 1. The Trustees as such shall be entitled to reasonable
compensation from the Trust; they may fix the amount of their compensation.
Nothing herein shall in any way prevent the employment of any Trustee for
advisory, management, legal, accounting, investment banking or other services
and payment for the same by the Trust.
LIMITATION OF LIABILITY
Section 2. The Trustees shall not be responsible or liable in any event
for any neglect or wrongdoing of any officer, agent, employee, manager or
principal underwriter of the Trust, nor shall any Trustee be responsible for the
act or omission of any other Trustee, but nothing herein contained shall protect
any Trustee against any liability to which he or she would otherwise be subject
by reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his or her office.
10
Every note, bond, contract, instrument, certificate or undertaking and
every other act or thing whatsoever executed or done by or on behalf of the
Trust or the Trustees or any of them in connection with the Trust shall be
conclusively deemed to have been executed or done only in or with respect to
their or his or her capacity as Trustees or Trustee, and such Trustees or
Trustee shall not be personally liable thereon.
ARTICLE VIII
Indemnification
TRUSTEES, OFFICERS, ETC.
Section 1. The Trust shall indemnify each of its Trustees and officers
(including persons who serve at the Trust's request as directors, officers or
trustees of another organization in which the Trust has any interest as a
shareholder, creditor or otherwise) (hereinafter referred to as a "Covered
Person") against all liabilities and expenses, including but not limited to
amounts paid in satisfaction of judgments, in compromise or as fines and
penalties, and counsel fees reasonably incurred by any Covered Person in
connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, before any court or administrative or
legislative body, in which such Covered Person may be or may have been involved
as a party or otherwise or with which such Covered Person may be or may have
been threatened, while in office or thereafter, by reason of being or having
been such a Covered Person except with respect to any matter as to which such
Covered Person shall have been finally adjudicated in any such action, suit or
other proceeding (a) not to have acted in good faith in the reasonable belief
that such Covered Person's action was in the best interests of the Trust or (b)
to be liable to the Trust or its Shareholders by reason of willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of such Covered Person's office. Expenses, including counsel fees so
incurred by any such Covered Person (but excluding amounts paid in satisfaction
of judgments, in compromise or as fines or penalties), shall be paid from time
to time by the Trust in advance of the final disposition of any such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such
Covered Person to repay amounts so paid to the Trust if it is ultimately
determined that indemnification of such expenses is not authorized under this
Article, provided, however, that either (a) such Covered Person shall have
provided appropriate security for such undertaking, (b) the Trust shall be
insured against losses arising from any such advance payments or (c) either a
majority of the disinterested Trustees acting on the matter (provided that a
majority of the disinterested Trustees then in office act on the matter), or
independent legal counsel in a written opinion, shall have determined, based
upon a review of readily available facts (as opposed to a full trial type
inquiry), that there is reason to believe that such Covered Person will be found
entitled to indemnification under this Article.
COMPROMISE PAYMENT
Section 2. As to any matter disposed of (whether by a compromise
payment, pursuant to a consent decree or otherwise) without an adjudication by a
court, or by any other body before which the proceeding was brought, that such
Covered Person either (a) did not act in good faith in the reasonable belief
that his or her action was in the best interests of the Trust or (b) is liable
11
to the Trust or its Shareholders by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
his or her office, indemnification shall be provided if (a) approved as in the
best interests of the Trust, after notice that it involves such indemnification,
by at least a majority of the disinterested Trustees acting on the matter
(provided that a majority of the disinterested Trustees then in office act on
the matter) upon a determination, based upon a review of readily available facts
(as opposed to a full trial type inquiry), that such Covered Person acted in
good faith in the reasonable belief that his or her action was in the best
interests of the Trust and is not liable to the Trust or its Shareholders by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his or her office, or (b) there has
been obtained an opinion in writing of independent legal counsel, based upon a
review of readily available facts (as opposed to a full trial type inquiry), to
the effect that such Covered Person appears to have acted in good faith in the
reasonable belief that his or her action was in the best interests of the Trust
and that such indemnification would not protect such Covered Person against any
liability to the Trust to which he or she would otherwise be subject by reason
of willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office. Any approval pursuant to
this Section shall not prevent the recovery from any Covered Person of any
amount paid to such Covered Person in accordance with this Section as
indemnification if such Covered Person is subsequently adjudicated by a court of
competent jurisdiction not to have acted in good faith in the reasonable belief
that such Covered Person's action was in the best interests of the Trust or to
have been liable to the Trust or its Shareholders by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of such Covered Person's office.
INDEMNIFICATION NOT EXCLUSIVE
Section 3. The right of indemnification hereby provided shall not be
exclusive of or affect any other rights to which such Covered Person may be
entitled. As used in this Article VIII, the term "Covered Person" shall include
such person's heirs, executors and administrators, and a "disinterested Trustee"
is a Trustee who is not an "interested person" of the Trust as defined in
Section 2(a)(19) of the 1940 Act (or who has been exempted from being an
"interested person" by any rule, regulation or order of the Securities and
Exchange Commission) and against whom none of such actions, suits or other
proceedings or another action, suit or other proceeding on the same or similar
grounds is then or has been pending. Nothing contained in this Article shall
affect any rights to indemnification to which personnel of the Trust, other than
Trustees or officers, and other persons may be entitled by contract or otherwise
under law, nor the power of the Trust to purchase and maintain liability
insurance on behalf of any such person.
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
12
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 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.
TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND-OR SURETY
Section 2. The exercise by the Trustees of their powers and discretions
hereunder shall be binding upon everyone interested. A Trustee shall be liable
for his or her own willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of Trustee, and
for nothing else. The Trustees may take advice of counsel or other experts with
respect to the meaning and operation of this Declaration of Trust, and shall be
under no liability for any act or omission in accordance with such advice or for
failing to follow such advice. The Trustees shall not be required to give any
bond as such, nor any surety if a bond is required.
LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES
Section 3. No person dealing with the Trustees shall be bound to make
any inquiry concerning the validity of any transaction made or to be made by the
Trustees or to see to the application of any payments made or property
transferred to the Trust or upon its order.
13
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 purpose 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 at
least 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.
14
FILING AND COPIES, REFERENCES, HEADINGS
Section 7. The original or a copy of this instrument and of each
amendment hereto shall be kept at the office of the Trust where it may be
inspected by any Shareholder. A copy of this instrument and of each amendment
hereto shall be filed by the Trust with the Secretary of State of The
Commonwealth of Massachusetts and with the Boston City Clerk, as well as any
other governmental office where such filing may from time to time be required.
Anyone dealing with the Trust may rely on a certificate by an officer of the
Trust as to whether or not any such amendments have been made and as to any
matters in connection with the Trust hereunder, and, with the same effect as if
it were the original, may rely on a copy certified by an officer of the Trust to
be a copy of this instrument or of any such amendments. In this instrument and
in any such amendment, references to this instrument and all expressions like
"herein", "hereof" and "hereunder" shall be deemed to refer to this instrument
as amended or affected by any such amendments. Headings are placed herein for
convenience of reference only and shall not be taken as a part hereof or control
or affect the meaning, construction or effect of this instrument. This
instrument may be executed in any number of counterparts each of which shall be
deemed an original.
APPLICABLE LAW
Section 8. This Declaration of Trust is made in The Commonwealth of
Massachusetts, and it is created under and is to be governed by and construed
and administered according to the laws of said Commonwealth. The Trust shall be
of the type commonly called a Massachusetts business trust, and without limiting
the provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a trust.
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.
15
IN WITNESS WHEREOF, the undersigned, being a majority of the Trustees of
the Trust, hereunto set their hands as of the day and year first above written.
/s/ Xxxx X. Xxxx /s/ Xxxxxxxx X. Xxxxxx
----------------------------------- ----------------------
Xxxx X. Xxxx Xxxxxxxx X. Xxxxxx
/s/ Xxxxxx Xxxxxx, III /s/ Xxxx X. Xxxxxx, III
----------------------------------- -----------------------
Xxxxxx Xxxxxx, III Xxxx X. Xxxxxx, III
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------- -----------------------
Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxx /s/ A.J.C. Xxxxx
----------------------------------- ----------------
Xxxxxxx X. Xxxxxx A.J.C. Xxxxx
/s/ Xxxxxx X. Xxxxxxx /s/ W. Xxxxxx Xxxxxxxx
----------------------------------- ----------------------
Xxxxxx X. Xxxxxxx W. Xxxxxx Xxxxxxxx
/s/ Xxxx X. Xxxxxx /s/ W. Xxxxxxxx Xxxxxxxxx
----------------------------------- -------------------------
Xxxx X. Xxxxxx W. Xxxxxxxx Xxxxxxxxx
/s/ Xxxxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxxxx X. Xxxxxx
TRUSTEES AND ADDRESSES
XX. XXXX X. XXXX XX. XXXXXXXX X. XXXXXX
00 XXXX XXXX 000 XXXXXX XXXXXX
XXXXXXXXXX, XX 00000 XXXXXXXXX, XX 00000
XXXXXX XXXXXX, III, ESQUIRE XX. XXXX X. XXXXXX, III
00 XXXXXXX XXXXXX 000 XXXXXXXX XXXX XXXX
XXXXXXXXXX, XX 00000 XXXXXXXXX, XX 00000
XXX. XXXXXXX X. XXXXXX XXXXXX X. XXXXXXXXX, ESQUIRE
000 XXXXXX XXXX XXXX 000 XXXXXX XXXXXX
XXXXXXXXXX, XX 00000 XXXXXX, XX 00000
XX. XXXXXXX X. XXXXXX MR. A.J.C. XXXXX
0000 XXXXXXX XXXX 000 XXXX XXXXXX
XXXXXXXX, XX 00000 XXX. 00-X
XXX XXXX, XX 00000
XX. XXXXXX X. XXXXXXX MR. W. XXXXXX XXXXXXXX
35 XXXXX AVENUE 0000 XXXX XXXXXX XXXXXX
XXXXXX XXXXXXXX, XX 00000 XXXXXXXXX XXXXXXX, XX 00000
XX. XXXX X. XXXXXX MR. W. XXXXXXXX XXXXXXXXX
0 XXXXXXX XXXXXX 00 XXXXXX XXXXX
XXXXXXXXX, XX 00000 XXXXXXXXX, XX 00000
XX. XXXXXXXXX X. XXXXXX
X.X. XXX 0000
XXXXXXXX, XX 00000
REGISTERED AGENT
CT CORPORATION SYSTEM
0 XXXXXX XXXXXX
XXXXXX, XX 00000
TRUST ADDRESS
XXXXXX MUNICIPAL BOND FUND
XXX XXXX XXXXXX XXXXXX
XXXXXX, XX 00000
