EXHIBIT 1
AGREEMENT AND DECLARATION OF TRUST
OF
AIM SPECIAL OPPORTUNITIES FUNDS
WHEREAS, THIS AGREEMENT AND DECLARATION OF TRUST is made and entered into
as of February 4, 1998, among Xxxxxxx X. Xxxxx and Xxxxxx X. Xxxxxx, as
trustees, and each person who becomes a shareholder (as hereinafter defined) in
accordance with the terms hereinafter set forth.
WHEREAS, the parties hereto desire to create a business trust pursuant to
the Delaware Act (as hereinafter defined) for the investment and reinvestment of
funds contributed thereto;
NOW, THEREFORE, the Trustees hereby direct that a Certificate of Trust be
filed with the Office of the Secretary of State of Delaware and do hereby
declare that all money and property contributed to the trust hereunder shall be
held and managed in trust under this Trust Agreement for the benefit of the
Shareholders (as hereinafter defined) as herein set forth below.
ARTICLE I
NAME, DEFINITIONS, PURPOSE AND CERTIFICATE OF TRUST
SECTION 1.1. NAME. The name of the business trust created hereby is "AIM
Special Opportunities Funds," and the Trustees may transact the Trust's
affairs in that name. The Trust shall constitute a Delaware business trust
in accordance with the Delaware Act, as hereinafter defined.
SECTION 1.2. DEFINITIONS. Wherever used herein, unless otherwise
required by the context or specifically provided:
(a) "Agreement" means this Agreement and Declaration of Trust, as it may
be amended from time to time;
(b) "Bylaws" means the Bylaws referred to in Article IV, Section 4.1(e)
hereof, as from time to time amended;
(c) The term "Class" means a portion of Shares of a Portfolio of the Trust
established in accordance with the provisions of Article II, Section
2.3 hereof;
(d) The term "Commission" has the meaning given it in the 1940 Act. The
terms "affiliated person", "Company", "Person" and "principal
underwriter" shall have the meanings given them in the 1940 Act, as
modified by or interpreted by any applicable order or orders of the
Commission or any rules or regulations adopted or interpretive
releases of the Commission thereunder;
(e) The "Delaware Act" refers to the Delaware Business Trust Act, 12 DEL.
C. Section 3801, ET SEQ., as such Act may be amended from time to
time;
(f) "Portfolio" means a series of Shares of the Trust established in
accordance with the provisions of Article II, Section 2.3 hereof;
(g) "Shareholder" means a record owner of Outstanding Shares of the Trust;
(h) "Shares" means, as to a Portfolio or any Class thereof, the equal
proportionate transferable units of beneficial interest into which the
beneficial interest of such Portfolio of the Trust or such Class
thereof shall be divided and may include fractions of Shares as well
as whole Shares;
(i) The "Trust" means the AIM Special Opportunities Funds, the Delaware
business trust established hereby, and reference to the Trust, when
applicable to one or more Portfolios of the Trust, or Classes thereof,
shall refer to any such Portfolio, or Class thereof, as the case may
be;
(j) The "Trustees" means the Persons who have signed this Agreement and
Declaration of Trust as trustees so long as they shall continue to
serve as trustees of the Trust in accordance with the terms hereof,
and all other Persons who may from time to time be duly appointed as
Trustee in accordance with the provisions of Section 3.4 hereof, and
reference herein to a Trustee or to the Trustees shall refer to such
Persons in their capacity as Trustees hereunder;
(k) "Trust Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account
of one or more of the Trust, any Portfolio, any Class of a Portfolio
or the Trustees on behalf of the Trust, a Portfolio or Class; and
(l) The "1940 Act" refers to the Investment Company Act of 1940, as
amended from time to time.
SECTION 1.3. PURPOSE. The purpose of the Trust is to conduct, operate
and carry on the business of a management investment company registered
under the 1940 Act through one or more Portfolios investing primarily in
securities and to carry on such other business as the Trustees may from
time to time determine pursuant to their authority under this Trust
Agreement.
SECTION 1.4. CERTIFICATE OF TRUST. Immediately upon the execution of
this Trust Agreement, the Trustees shall file a Certificate of Trust with
respect to the Trust in the Office of the Secretary of State of the State
of Delaware pursuant to the Delaware Act.
ARTICLE II
BENEFICIAL INTEREST
SECTION 2.1. SHARES OF BENEFICIAL INTEREST. The beneficial interest in
the Trust shall be divided into an unlimited number of Shares, with par
value of $0.01 per Share. The Trustees may, from time to time, authorize
the division of the Shares into one of more series, each of which
constitutes a Portfolio, and may further authorize the division of said
Portfolios into one or more additional, separate and distinct Classes in
accordance with Section 2.3 of this Agreement. All Shares issued
hereunder, including without limitation, Shares issued in connection with a
dividend in Shares or a split or reverse split of Shares, shall be fully
paid and nonassessable.
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SECTION 2.2. ISSUANCE OF SHARES. The Trustees in their discretion may,
from time to time, without vote of the Shareholders, issue Shares, in
addition to the then issued and outstanding Shares and Shares held in the
treasury, to such party or parties and for such amount and type of
consideration, subject to applicable law, including cash or securities, at
such time or times and on such terms as the Trustees may deem appropriate,
and may in such manner acquire other assets (including the acquisition of
assets subject to, and in connection with, the assumption of liabilities)
and businesses. In connection with any issuance of Shares, the Trustees
may issue fractional Shares and Shares held in the treasury. The Trustees
may from time to time divide or combine the Shares into a greater or lesser
number without thereby changing the proportionate beneficial interests in
the Trust. Contributions to the Trust may be accepted for, and Shares
shall be redeemed as, whole Shares and/or 1/1,000th of a Share or integral
multiples thereof.
SECTION 2.3. ESTABLISHMENT OF PORTFOLIOS AND CLASSES. The Trust shall
initially be created with one portfolio, the AIM Small Cap Opportunities
Fund, the "Initial Portfolio". The Initial Portfolio shall have one Class,
Class A. The establishment and designation of any other Portfolio or Class
thereof, or, subject to Section 6.1 hereof, any change to the Initial
Portfolio, shall be effective upon the adoption by a majority of the then
Trustees of a resolution which sets forth such establishment, designation
or change.
SECTION 2.3.1. Subject to Section 6.1 of this Trust Agreement, the Trustees
shall have full power and authority, in their sole discretion without
obtaining any prior authorization or vote of the Shareholders of any
Portfolio of the Trust, or Class thereof, to establish and designate and to
change in any manner any Portfolio of Shares, or any Class or Classes
thereof, to fix such preferences, voting powers, rights and privileges of
any Portfolio, or Classes thereof, as the Trustees may from time to time
determine, to divide or combine the Shares or any Portfolio, or Classes
thereof, into a greater or lesser number, to classify or reclassify any
issued Shares or any Portfolio, or Classes thereof, into one or more
Portfolios or Classes or, Shares of a Portfolio, and to take such other
action with respect to the Shares as the Trustees may deem desirable. A
Portfolio and any Class thereof may issue any number of Shares but need not
issue any shares. At any time that there are no Shares outstanding of any
particular Portfolio or Class previously established and designed, the
Trustees may by a majority vote of the Trustees abolish that Portfolio or
Class and the establishment and designation thereof.
SECTION 2.3.2. Unless the establishing resolution or any other resolution
adopted pursuant to this Section 2.3 otherwise provides, Shares of each
Portfolio or Class thereof established hereunder shall have the following
relative rights and preferences:
(a) Except as set forth in paragraph (e) of this Subsection 2.3.2, each
Share of a Portfolio, regardless of Class, shall represent an equal
pro rata interest in the assets belonging to such Portfolio and shall
have identical voting, dividend, liquidation and other rights,
preferences, powers, restrictions, limitations, qualifications and
designations and terms and conditions with each other Share of such
Portfolio.
(b) Shareholders shall have no preemptive or other right to subscribe to
any additional Shares or other securities issued by the Trust or the
Trustees, whether of the same or other Portfolio (or Class).
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(c) All consideration received by the Trust for the issue or sale of
Shares of a particular Portfolio (or Class), together with all assets
in which such consideration is invested or reinvested, all income,
earnings, profits, and proceeds thereof, including any proceeds
derived from the sale, exchange or liquidation of such assets, and any
funds or payments derived from any reinvestment of such proceeds in
whatever form the same may be, shall be held and accounted for
separately from the other assets of the Trust and of every other
Portfolio and may be referred to herein as "assets belonging to" that
Portfolio (or Class). The assets belonging to a particular Portfolio
(or Class) shall belong to that Portfolio (or Class) for all purposes,
and to no other Portfolio (or class), subject only to the rights of
creditors of that Portfolio (or Class). In addition, any assets,
income, earnings, profits or funds, or payments and proceeds with
respect thereto, which are not readily identifiable as belonging to
any particular Portfolio (or Class) shall be allocated by the Trustees
between and among one or more of the Portfolios (or Classes) in such
manners the Trustees, in their sole discretion, deem fair and
equitable. Each such allocation shall be conclusive and binding upon
the Shareholders of all Portfolios or Classes thereof for all
purposes, and such assets, income, earnings, profits, or funds, or
payments and proceeds with respect thereto shall be assets belonging
to that Portfolio (or Class).
(d) The assets belonging to a particular Portfolio (or Class) shall be
charged with the liabilities of that Portfolio (or Class) and all
expenses, costs, charges and reserves attributable to that Portfolio
(or Class). As hereinafter provided, Class Expenses that are directly
attributable to any particular Class shall be borne by such Class.
Any general liabilities, expenses, costs, charges or reserves to the
Trust which are not readily identifiable as belonging to any
particular Portfolio or Class shall be allocated and charged by the
Trustees between or among any one or more of the Portfolios (or
Classes) in such manner as the Trustees in their sole discretion deem
fair and equitable. Each such allocation shall be conclusive and
binding upon the Shareholders of all Portfolios (or Classes) for all
purposes. Without limitation of the foregoing provisions of this
Subsection 2.3.2, the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to a
particular Portfolio (or Class) shall be enforceable against the
assets of such Portfolio (or Class) only, and not against the assets
of the Trust generally. Notice of this contractual limitation on
inter-Portfolio liabilities shall be set forth in the Certificate of
Trust described in Section 1.4 of this Agreement (whether originally
or by amendment), and upon the giving of such notice in the
Certificate of Trust, the statutory provisions of Section 3804 of the
Delaware Act relating to limitations on inter-Portfolio liabilities
(and the statutory effect under Section 3804 of setting forth such
notice in the certificate of trust) shall become applicable to the
Trust and each Portfolio and Class thereof.
(e) Each Class of Shares of a Portfolio shall have a different Class
designation. Each Class of Shares shall bear expenses ("Class
Expenses") of the Trust's operations that are directly attributable to
such Class. Dividends paid by the Trust with respect to each Class of
Shares in a Portfolio shall be calculated in the same manner and shall
be in the same amount as dividends paid by the Trust with respect to
each other Class of Shares in the same Portfolio, except that Class
Expenses shall be borne exclusively by the affected Classes.
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All references to Shares in this Trust Agreement shall be deemed to be
Shares of any or all Portfolios, or Classes thereof, as the context
may require. All provisions herein relating to the Trust shall apply
equally to each Portfolio of the Trust, and each Class thereof, except
as the context otherwise requires.
SECTION 2.4. INVESTMENT IN THE TRUST. Investments may be accepted by the
Trust from such Persons, at such times, on such terms, and for such
consideration, which may consist of cash or tangible or intangible property
or a combination thereof, as the Trustees from time to time may authorize.
At the Trustees' discretion, such investments, subject to applicable law,
may be in the form of cash or securities in which the affected Portfolio is
authorized to invest, valued as provided in applicable law. Each
investment shall be credited to the individual shareholder's account in the
form of full and fractional Shares of the Trust, in such Portfolio (or
Class) as the purchaser shall select.
SECTION 2.5. PERSONAL LIABILITY OF SHAREHOLDERS. As provided by
applicable law, no Shareholder of the Trust shall be personally liable for
the debts, liabilities, obligations and expenses incurred by, contracted
for, or otherwise existing with respect to, the Trust or any Portfolio (or
Class) thereof. Neither the trust nor the Trustees, nor any officer,
employee or agent of the Trust shall have any power to bind personally any
Shareholder or, except as provided herein or by applicable law, to call
upon any Shareholder for the payment of any sum of money or assessment
whatsoever other than such as the Shareholder may at any time personally
agree to pay by way of subscription for any Shares or otherwise. The
Shareholders shall be entitled, to the fullest extent permitted by
applicable law, to the same limitation on personal liability as is extended
under the Delaware General Corporation Law to stockholders of private
corporations for profit. Every note, bond, contract or other undertaking
issued by or on behalf of the Trust or the Trustees relating to the Trust
or to any Portfolio (or Class) thereof shall include a recitation limiting
the obligation represented thereby to the Trust or to one or more
Portfolios thereof and its or their assets (but the omission of such a
recitation shall not operate to bind any Shareholder or Trustee of the
Trust).
SECTION 2.6. ASSENT TO TRUST AGREEMENT. Every Shareholder, by virtue of
having purchased a Share, shall be held to have expressly assented to, and
agreed to be bound by, the terms hereof. The death of a Shareholder during
the continuance of the Trust shall not operate to terminate the same nor
entitle the representative of any deceased Shareholder to an accounting or
to take any action in court or elsewhere against the Trust or the Trustees,
but only to rights of said decedent under this Trust.
ARTICLE III
THE TRUSTEES
SECTION 3.1. MANAGEMENT OF THE TRUST. The Trustees shall have exclusive
and absolute control over the Trust Property and over the business of the
Trust to the same extent as if the Trustees were the sole owners of the
Trust Property and business in their own right, but with such powers of
delegation as may be permitted by this Trust Agreement. The Trustees shall
have power to conduct the business of the Trust and carry on its operations
in any and all of its branches and maintain offices both within and without
the State of Delaware, in any and all states of the United States of
America, in the District of Columbia, in any and all commonwealths,
territories, dependencies, colonies, or possessions of the United Sates of
America, and in any foreign jurisdiction and to do all such other things
and execute all such
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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 Trust Agreement, the presumption shall be in favor of a
grant of power to the Trustees.
The enumeration of any specific power in this Trust Agreement shall not be
construed as limiting the aforesaid power. The powers of the Trustees may
be exercised without order of or resort to any court.
SECTION 3.2. INITIAL TRUSTEES. The initial Trustees shall be the persons
named herein. On a date fixed by the Trustees, the Shareholders shall
elect at least two (2) but not more than twelve (12) Trustees, as specified
by the Trustees pursuant to Section 3.6 of this Article III.
SECTION 3.3. TERMS OF OFFICE OF TRUSTEES. The Trustees shall hold office
during the lifetime of this Trust, and until its termination as herein
provided; except (a) that any Trustee may resign his trusteeship or may
retire by written instrument signed by him and delivered to the other
Trustees, which shall take effect upon such delivery or upon such later
date as is specified therein; (b) that any Trustee may be removed at any
time by written instrument, signed by at least two-thirds of the number of
Trustees prior to such removal, specifying the date when such removal shall
become effective; (c) that any Trustee who has died, become physically or
mentally incapacitated by reason of disease or otherwise, or is otherwise
unable to serve, may be retired by written instrument signed by a majority
of the other Trustees, specifying the date of his retirement; and (d) that
a Trustee may be removed at any meeting of the Shareholders of the Trust.
SECTION 3.4. VACANCIES AND APPOINTMENT OF TRUSTEES. In case of the
declination to serve, death, resignation, retirement or removal of a
Trustee, or a Trustee is otherwise unable to serve, or an increase in the
number of Trustees, a vacancy shall occur. Whenever a vacancy in the Board
of Trustees shall occur, until such vacancy is filled, the other Trustees
shall have all the powers hereunder and the certification of the other
Trustees of such vacancy shall be conclusive. In the case of an existing
vacancy, the remaining Trustees may fill such vacancy by appointing such
other person as they in their discretion shall see fit, or may leave such
vacancy unfilled or may reduce the number of Trustees to not less than two
(2) Trustees. Such appointment shall be evidenced by a written instrument
signed by a majority of the Trustees in office or by resolution of the
Trustees, duly adopted, which shall be recorded in the minutes of a meeting
of the Trustees, whereupon the appointment shall take effect.
An appointment of a Trustee may be made by the Trustees then in office in
anticipation of a vacancy to occur by reason of retirement, resignation or
increase in number of Trustees effective at a later date, provided that
said appointment shall become effective only at or after the effective date
of said retirement, resignation or increase in number of Trustees. As soon
as any Trustee appointed pursuant to this Section 3.4 shall have accepted
this trust, the trust estate shall vest in the new Trustee or Trustees,
together with the continuing Trustees, without any further act or
conveyance, and he shall be deemed a Trustee hereunder.
SECTION 3.5. TEMPORARY ABSENCE OF TRUSTEE. Any Trustee may, by power of
attorney, delegate his power for a period not exceeding six months at any
one time to any other
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Trustee or Trustees, provided that in no case shall less than two Trustees
personally exercise the other powers hereunder except as herein otherwise
expressly provided.
SECTION 3.6. NUMBER OF TRUSTEES. The number of Trustees shall initially
be two (2), and thereafter shall be such number as shall be fixed from time
to time by a majority of the Trustees; provided, however, that the number
of Trustees shall in no event be less than two (2) nor more than twelve
(12).
SECTION 3.7. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE. The
declination to serve, death, resignation, retirement, removal, incapacity,
or inability of the Trustees, or any one of them, shall not operate to
terminate the Trust or to revoke any existing agency created pursuant to
the terms of this Trust Agreement.
SECTION 3.8. OWNERSHIP OF ASSETS OF THE TRUST. The assets of the Trust
and of each Portfolio thereof shall be held separate and apart from any
assets now or hereafter held in any capacity other than as Trustee
hereunder by the Trustees or any successor Trustees. Legal title in all of
the assets of the Trust and the right to conduct any business shall at all
times be considered as vested in the Trustees on behalf of the Trust,
except that the Trustees may cause legal title to any Trust Property to be
held by, or in the name of the Trust, or in the name of any Person as
nominee. No Shareholder shall be deemed to have a severable ownership in
any individual asset of the Trust or of any Portfolio, or Class thereof, or
any right of partition or possession thereof, but each Shareholder shall
have, except as otherwise provided for herein, a proportionate undivided
beneficial interest in the Trust, Portfolio or Class thereof. The Shares
shall be personal property giving only the rights specifically set forth in
this Trust Agreement or the Delaware Act.
ARTICLE IV
POWERS OF THE TRUSTEES
SECTION 4.1. POWERS. The Trustees in all instances shall act as
principals, and are and shall be free from the control of the Shareholders.
The Trustees shall have full power and authority to do any and all acts and
to make and execute any and all contracts and instruments that they may
consider necessary or appropriate in connection with the management of the
Trust. Without limiting the foregoing and subject to any applicable
limitation in this Trust Agreement or the Bylaws of the Trust, the Trustees
shall have power and authority:
(a) To invest and reinvest cash and other property, and to hold cash or
other property uninvested, without in any event being bound or limited
by any present or future law or custom in regard to investments by
trustees, and to sell, exchange, lend, pledge, mortgage, hypothecate,
write options on and lease any or all of the assets of the Trust;
(b) To operate as, and carry on the business of, an investment company,
and exercise all the powers necessary and appropriate to the conduct
of such operations;
(c) To borrow money and in this connection issue notes or other evidence
of indebtedness; to secure borrowings by mortgaging, pledging or
otherwise subjecting as security the Trust Property; to endorse,
guarantee, or undertake the performance of an obligation or engagement
of any other Person and to lend Trust Property;
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(c) To borrow money and in this connection issue notes or other evidence
of indebtedness; to secure borrowings by mortgaging, pledging or
otherwise subjecting as security the Trust Property; to endorse,
guarantee, or undertake the performance of an obligation or engagement
of any other Person and to lend Trust Property;
(d) To provide for the distribution of interests of the Trust either
through a principal underwriter in the manner hereafter provided for
or by the Trust itself, or both, or otherwise pursuant to a plan of
distribution of any kind;
(e) To adopt Bylaws not inconsistent with this Trust Agreement providing
for the conduct of the business of the Trust and to amend and repeal
them to the extent that they do not reserve such right to the
Shareholders; such Bylaws shall be deemed incorporated and included in
this Trust Agreement;
(f) To elect and remove such officers and appoint and terminate such
agents as they consider appropriate;
(g) To employ one or more banks, trust companies or companies that are
members of a national securities exchange or such other domestic or
foreign entities as custodians of any assets of the Trust subject to
any conditions set forth in this Trust Agreement or in the Bylaws;
(h) To retain one or more transfer agents and shareholder servicing
agents, or both;
(i) To set record dates in the manner provided herein or in the Bylaws;
(j) To delegate such authority as they consider desirable to any officers
of the Trust and to any investment adviser, manager, administrator,
custodian, underwriter or other agent or independent contractor;
(k) To sell or exchange any or all of the assets of the Trust, subject to
the provisions of Article VI, Section 6.1 hereof;
(l) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and
deliver proxies and powers of attorney to such person or persons as
the Trustees shall deem proper, granting to such person or persons
such power and discretion with relation to securities or property as
the Trustee shall deem proper;
(m) To exercise powers and rights of subscription or otherwise which in
any manner arise out of ownership of securities;
(n) To hold any security or property in a form not indicating any trust,
whether in bearer, book entry, unregistered or other negotiable form;
or either in the name of the Trust or of a Portfolio or Class thereof
or in the name of a custodian or a nominee or nominees, subject in
either case to proper safeguards according to the usual practice of
Delaware business trusts or investment companies;
(o) To establish separate and distinct Portfolios with separately defined
investment objectives and policies and distinct investment purposes in
accordance with the
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provisions of Article II hereof and to establish Classes of such
Portfolios having relative rights, powers and duties as they may
provide consistent with applicable law;
(p) Subject to the provisions of Section 3804 of the Delaware Act, to
allocate assets, liabilities and expenses of the Trust to a particular
Portfolio or to apportion the same between or among two or more
Portfolios, provided that any liabilities or expenses incurred by a
particular Portfolio (or Class) shall be payable solely out of the
assets belonging to that Portfolio (or Class) as provided for in
Article II hereof;
(q) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or concern, any security of
which is held in the Trust; to consent to any contract, lease,
mortgage, purchase, or sale of property by such corporation or
concern, and to pay calls or subscriptions with respect to any
security held in the Trust;
(r) To compromise, arbitrate, or otherwise adjust claims in favor of or
against the Trust or any matter in controversy including, but not
limited to, claims for taxes;
(s) To declare and pay dividends and make distributions of income and of
capital gains and capital to Shareholders in the manner hereinafter
provided;
(t) To establish, from time to time, a minimum investment for Shareholders
in the Trust or in one or more Portfolio or Class, and to require the
redemption of the Shares of any Shareholders whose investment is less
than such minimum upon giving notice to such Shareholder;
(u) To establish one or more committees, to delegate any of the powers of
the Trustees to said committees and to adopt a committee charter
providing for such responsibilities, membership (including Trustees,
officers or other agents of the Trust therein) and any other
characteristics of said committees as the Trustees may deem proper.
Notwithstanding the provisions of this Article IV, and in addition to
such provisions or any other provision of this Trust Agreement or of
the Bylaws, the Trustees may by resolution appoint a committee
consisting of less than the whole number of Trustees then in office,
which committee may be empowered to act for and bind the Trustees and
the Trust, as if the acts of such committee were the acts of all the
Trustees then in office, with respect to the institution, prosecution,
dismissal, settlement, review or investigation of any action, suit or
proceeding which shall be pending or threatened to be brought before
any court, administrative agency or other adjudicatory body;
(v) To interpret the investment policies, practices or limitations of any
Portfolios;
(w) To establish a registered office and have a registered agent in the
State of Delaware; and
(x) In general to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary,
suitable or proper for the accomplishment of any purpose or the
attainment of any object or the furtherance of any power hereinbefore
set forth, either alone or in association with others, and
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to do every other act or thing incidental or appurtenant to or growing
out of or connected with the aforesaid business or purposes, objects
or powers.
The foregoing clauses shall be construed both as objects and powers,
and the foregoing enumeration of specific powers shall not be held to
limit or restrict in any manner the general powers of the Trustees.
Any action by one or more of the Trustees in their capacity as such
hereunder shall be deemed an action on behalf of the Trust or the
applicable Portfolio, and not an action in an individual capacity.
The Trustees shall not be limited to investing in obligations maturing
before the possible termination of the Trust.
No one dealing with the Trustees shall be under any obligation to make
any inquiry concerning the authority of the Trustees, or to see to the
application of any payments made or property transferred to the
Trustees or upon their order.
SECTION 4.2. ISSUANCE AND REPURCHASE OF SHARES. The Trustees shall have
the power to issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of, and otherwise deal in Shares and,
subject to the provisions set forth in Article II and VII, to apply to any
such repurchase, redemption, retirement, cancellation or acquisition of
Shares any funds or property of the Trust, or the particular Portfolio or
Class of the Trust, with respect to which such Shares are issued.
SECTION 4.3. ACTION BY THE TRUSTEES. The Trustees act by majority vote
at a meeting duly called or by unanimous written consent without a meeting
or by telephone meeting provided a quorum of Trustees participate in any
such telephone meeting. At any meeting of the Trustees, a majority of the
Trustees shall constitute a quorum. Written consents or waivers of the
Trustees may be executed in one or more counterparts. Execution of a
written consent or waiver and delivery thereof to the Trust may be
accomplished by telefax.
SECTION 4.4. PRINCIPAL TRANSACTIONS. The Trustees may, on behalf of the
Trust, buy any securities from or sell any securities to, or lend any
assets of the Trust to, any Trustee or officer of the Trust or any firm of
which any such Trustee or officer is a member acting as principal, or have
any such dealings with any investment adviser, distributor, or transfer
agent for the Trust or with any affiliated person of such Person; and the
Trust may employ any such Person, or firm or Company in which such Person
is an affiliated person, as broker, legal counsel, registrar, investment
adviser, distributor, administrator, transfer agent, dividend disbursing
agent, custodian or in any other capacity upon customary terms, subject in
all cases to applicable laws, rules and regulations and orders of
regulatory authorities.
SECTION 4.5. PAYMENT OF EXPENSES BY THE TRUST. The Trustees are
authorized to pay or cause to be paid out of the principal or income of the
Trust or Portfolio (or Class), or partly out of the principal and partly
out of income, and to charge or allocate the same to, between or among such
one or more of the Portfolios (or Classes) that may be established or
designated pursuant to Article II, Section 2.3, as they deem fair, all
expenses, fees, charges, taxes and liabilities incurred or arising in
connection with the Trust or Portfolio (or Class), or in connection with
the management thereof, including, but not limited to, the Trustees'
compensation and such expenses and charges for the services of the Trust's
officers, employees, investment adviser or manager, administrator,
principal underwriter, auditors, counsel, custodian, transfer agent,
Shareholder servicing agent, and such other agents or
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independent contractors and such other expenses and charges as the Trustees
may deem necessary or proper to incur.
SECTION 4.6. TRUSTEE COMPENSATION. The Trustees as such shall be
entitled to reasonable compensation from the Trust. They may fix the
amount of their compensation. Nothing herein shall in any way prevent the
employment of any Trustee for advisory, management, administrative, legal,
accounting, investment banking, underwriting, brokerage, or investment
dealer or other services and the payment for the same by the Trust.
ARTICLE V
INVESTMENT ADVISOR, PRINCIPAL UNDERWRITER AND
TRANSFER AGENT
SECTION 5.1. INVESTMENT ADVISOR. The Trustees may in their discretion,
from time to time, enter into an investment advisory or management contract
or contracts with respect to the Trust or any Portfolio whereby the other
party or parties to such contract or contracts shall undertake to furnish
the Trustees with such management, investment advisory, statistical and
research facilities and services and such other facilities and services, if
any, and all upon such terms and conditions, as the Trustees may in their
discretion determine.
The Trustees may authorize the investment advisor to employ, from time to
time, one or more sub-advisors to perform such of the acts and services of
the investment advisor, and upon such terms and conditions, as may be
agreed upon between the investment advisor and sub-advisor. Any reference
in this Trust Agreement to the investment advisor shall be deemed to
include such sub-advisors, unless the context otherwise requires.
SECTION 5.2. OTHER SERVICE CONTRACTS. The Trustees may authorize the
engagement of a principal underwriter, transfer agent, administrator,
custodian or similar servicer.
SECTION 5.3. PARTIES TO CONTRACT. Any contract of the character
described in Sections 5.1 and 5.2 of this Article V may be entered into
with any corporation, firm, partnership, trust or association, although one
or more of the Trustees or officers of the Trust may be an officer,
director, trustee, shareholder, or member of such other party to the
contract.
SECTION 5.4. MISCELLANEOUS. The fact that (i) any of the Shareholders,
Trustees or officers of the Trust is a shareholder, director, officer,
partner, trustee, employee, manager, advisor, principal underwriter or
distributor or agent of or for any Company or of or for any parent or
affiliate of any Company, with which an advisory or administration
contract, or principal underwriter's or distributor's contract, or
transfer, shareholder servicing, custodial or other agency conract may have
been or may hereafter be made, or that any such Company, or any parent or
affiliate thereof, is a Shareholder or has an interest in the Trust, or
that (ii) any Company with which an advisory or administration contract or
principal underwriter's or distributor's contract, or transfer, shareholder
servicing or other agency contract may have been or may hereafter be made
also has an advisory or administration contract, or principal underwriter's
or distributor's contract, or transfer, shareholder servicing, custodial or
other agency contract with one or more other companies, or has other
business or interests shall not affect the validity of any such contract or
disqualify any Shareholder, Trustee or officer of the Trust from voting
upon or executing the same or create any liability or accountability to the
Trust or its Shareholders.
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ARTICLE VI
SHAREHOLDERS' VOTING POWERS AND MEETING
SECTION 6.1. VOTING POWERS. The Shareholders shall have power to vote
only to: (i) elect Trustees, provided that a meeting of Shareholders has
been called for that purpose; (ii) remove Trustees, provided that a meeting
of Shareholders has been called for that purpose; (iii) approve the
termination of the Trust or any Portfolio or Class, unless, as of the date
on which the Trustees have determined to so terminate the Trust or such
Portfolio or Class, there are fewer than 100 holders of record of the Trust
or of such terminating Portfolio or Class and provided, further, that the
Trustees have called a meeting of the Shareholders for the purpose of
approving any such termination; (iv) approve the sale of all or
substantially all the assets of the Trust or of any Portfolio or Class,
unless the primary purpose of such sale is to change the Trust's domicile
or form of organization or form of business trust; (v) approve the merger
or consolidation of the Trust or any Portfolio or Class with and into
another Company, unless (A) the primary purpose of such merger or
consolidation is to change the Trust's domicile or form of organization or
form of business trust, or (B) after giving effect to such merger or
consolidation, based on the number of Shares outstanding as of a date
selected by the Trustees, the Shareholders of the Trust or such Portfolio
or Class will have a majority of the outstanding shares of the surviving
Company or portfolio or class, as the case may be; (vi) approve any
amendment to this Section 6.1; and (vii) approve such additional matters
as may be required by law or as the Trustees, in their sole discretion,
shall determine.
Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required or permitted by law, this
Trust Agreement or any of the Bylaws of the Trust to be taken by
Shareholders.
On any matter submitted to a vote of the Shareholders, all Shares shall be
voted together, except when required by applicable law or when the Trustees
have determined that the matter affects the interests of one or more
Portfolios (or Classes), then only the Shareholders of all such Portfolios
(or Classes) shall be entitled to vote thereon. Each whole Share shall be
entitled to one vote as to any matter on which it is entitled to vote, and
each fractional Share shall be entitled to a proportionate fractional vote.
The vote necessary to approve any such matter shall be set forth in the
Bylaws.
ARTICLE VII
DISTRIBUTIONS AND REDEMPTIONS
SECTION 7.1. DISTRIBUTIONS. The Trustees may from time to time declare
and pay dividends and make other distributions with respect to any
Portfolio, or Class thereof, which may be from income, capital gains or
capital. The amount of such dividends or distributions and the payment of
them and whether they are in cash or any other Trust Property shall be
wholly in the discretion of the Trustees.
SECTION 7.2. REDEMPTIONS. Any holder of record of Shares of a particular
Portfolio, or Class thereof, shall have the right to require the Trust to
redeem his Shares, or any portion thereof, subject to such terms and
conditions as are set forth in the Bylaws.
SECTION 7.3. REDEMPTION OF SHARES BY TRUSTEES. Upon the terms and
conditions set forth in the Bylaws, the Trustees may call for the
redemption of the Shares of any Person or may
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refuse to transfer or issue Shares to any Person to the extent that the
same is necessary to comply with applicable law or advisable to further the
purposes for which the Trust is formed.
SECTION 7.4. REDEMPTION OF DE MINIMIS ACCOUNTS. If, at any time when a
request for transfer or redemption of Shares of any Portfolio is received
by the Trust or its agent, the value of the Shares of such Portfolio in a
Shareholder's account is less than Five Hundred Dollars ($500.00), after
giving effect to such transfer or redemption, the Trust may cause the
remaining Shares of such Portfolio in such Shareholder's account to be
redeemed in accordance with such procedures as are set forth in the Bylaws.
ARTICLE VIII
LIMITATION OF LIABILITY AND INDEMNIFICATION
SECTION 8.1. LIMITATION OF LIABILITY. A Trustee, when acting in such
capacity, shall not be personally liable to any person for any act,
omission or obligation of the Trust or any Trustee; provided, however, that
nothing contained herein or in the Delaware Act shall protect any Trustee
against any liability to the Trust or to Shareholders to which he would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of
the office of Trustee hereunder.
SECTION 8.2. INDEMNIFICATION OF TRUSTEES. Every Person who is, or has
been, a Trustee or officer of the Trust shall be indemnified by the Trust
to the fullest extent permitted by the Delaware Act, the Bylaws and other
applicable law.
SECTION 8.3. INDEMNIFICATION OF SHAREHOLDERS. In case any Shareholder or
former Shareholder of the Trust shall be held to be personally liable
solely by reason of his being or having been a Shareholder of the Trust or
any Portfolio or Class and not because of his acts or omissions or for some
other reason, the Shareholder or former Shareholder (or his heirs,
executors, administrators or other legal representatives, or, in the case
of a corporation or other entity, its corporate or general successor) shall
be entitled out of the assets belonging to the applicable Portfolio (or
Class) to be held harmless from and indemnified against all loss and
expense arising from such liability in accordance with the Bylaws and
applicable law.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. TRUST NOT A PARTNERSHIP. It is hereby expressly declared
that a trust and not a partnership is created hereby. No Trustee hereunder
shall have any power to bind personally either the Trust's officers or any
Shareholder. All persons extending credit to, contracting with or having
any claim against the Trust or the Trustees shall look only to the assets
of the appropriate Portfolio or Class or, if the Trustees shall have yet to
have established any separate Portfolio or Class, of the Trust for payment
under such credit, contract or claim; and neither the Shareholders nor the
Trustee, nor any of their agents, whether past, present or future, shall be
personally liable therefor.
SECTION 9.2. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR
SURETY. The exercise by the Trustees of their powers and discretions
hereunder in good faith and with reasonable care under the circumstances
then prevailing shall be binding upon everyone
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interested. Subject to the provisions of Article VIII hereof and to
Section 9.1 of this Article IX, the Trustees shall not be liable for errors
of judgment or mistakes of fact or law. The Trustees may take advice of
counsel or other experts with respect to the meaning and operation of this
Trust Agreement, and subject to the provisions of Article VIII hereof and
Section 9.1 of this Article IX, shall be under no liability for any act or
omission in accordance with such advice or for failing to follow such
advice. The Trustees shall not be required to give any bond as such, nor
any surety if a bond is obtained.
SECTION 9.3. TERMINATION OF TRUST OR PORTFOLIO. Unless terminated as
provided herein, the Trust shall continue without limitation of time. The
Trust may be terminated at any time by the Trustees by written notice to
the Shareholders, subject to Section 6.1 of this Trust Agreement. Any
Portfolio or Class may be terminated at any time by the Trustees by written
notice to the Shareholders of that Portfolio or Class, subject to Section
6.1 of this Trust Agreement.
Upon termination of the Trust (or any Portfolio or Class, as the case may
be), after paying or otherwise providing for all charges, taxes, expenses
and liabilities held, severally, with respect to each Portfolio (or Class)
(or the applicable Portfolio (or Class), as the case may be), whether due
or accrued or anticipated as may be determined by the Trustees, the Trust
shall, in accordance with such procedures as the Trustees consider
appropriate, reduce the remaining assets held, severally, with respect to
each Portfolio (or Class) (or the applicable Portfolio (or Class), as the
case may be), to distribute in cash or shares or other securities, or any
combination thereof, and distribute the proceeds held with respect to each
Portfolio (or Class) (or the applicable Portfolio (or Class), as the case
may be), to the Shareholders of that Portfolio (or Class), as a Portfolio
(or Class), ratably according to the number of Shares of that Portfolio (or
Class) held by the several Shareholders on the date of termination.
SECTION 9.4. SALE OF ASSETS; MERGER AND CONSOLIDATION. Subject to
Section 6.1 of this Trust Agreement, the Trustees may cause (i) the Trust
or one or more of its Portfolios (or Classes) to the extent consistent with
applicable law to sell all or substantially all of its assets, or be merged
into or consolidated with another Trust or Company, (ii) the Shares of the
Trust or any Portfolio (or Class) to be converted into beneficial interests
in another business trust (or series thereof) created pursuant to this
Section 9.4 of Article IX, or (iii) the Shares to be exchanged under or
pursuant to any state or federal statute to the extent permitted by law.
In all respects not governed by statute or applicable law, the Trustees
shall have power to prescribe the procedure necessary or appropriate to
accomplish a sale of assets, merger or consolidation including the power to
create one or more separate business trusts to which all or any part of the
assets, liabilities, profits or losses of the Trust may be transferred and
to provide for the conversion of Shares of the trust or any Portfolio (or
Class) into beneficial interests in such separate business trust or trusts
(or series or class thereof).
SECTION 9.5. FILING OF COPIES, REFERENCES, HEADINGS. The original or a
copy of this Trust Agreement and each amendment hereof or Trust Agreement
supplemental hereto shall be kept at the office of the Trust where it may
be inspected by any Shareholder. In this Trust Agreement or in any such
amendment or supplemental Trust Agreement, references to this Trust
Agreement, and all expressions like "herein," "hereof" and "hereunder,"
shall be deemed to refer to this Trust Agreement as amended or affected by
any such supplemental Trust Agreement. All expressions like "his," "he,"
and "him," shall be deemed to include the
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feminine and neuter, as well as masculine, genders. Headings are placed
herein for convenience of reference only and in case of any conflict, the
text of this Trust Agreement, rather than the headings, shall control.
This Trust Agreement may be executed in any number of counterparts each of
which shall be deemed an original.
SECTION 9.6. GOVERNING LAW. The Trust and this Trust Agreement, and the
rights, obligations and remedies of the Trustees and Shareholders
hereunder, are to be governed by and construed and administered according
to the Delaware Act and the other laws of the State of Delaware; provided,
however, that there shall not be applicable to the Trust, the Trustees, the
Shareholders or this Trust Agreement (a) the provisions of Section 3540 of
Title 12 of the Delaware Code or (b) any provisions of the laws (statutory
or common) of the State of Delaware (other than the Delaware Act)
pertaining to trusts which relate to or regulate (i) the filing with any
court or governmental body or agency of trustee accounts or schedules of
trustee fees and charges, (ii) affirmative requirements to post bonds for
trustees, officers, agents or employees of a trust, (iii) the necessity for
obtaining court or other governmental approval concerning the acquisition,
holding or disposition of real or personal property, (iv) fees or other
sums payable to trustees, officers, agents or employees of a trust, (v) the
allocation of receipts and expenditures to income or principal, (vi)
restrictions or limitations on the permissible nature, amount or
concentration of trust investments or requirements relating to the titling,
storage or other manner of holding of trust assets, or (vii) the
establishment of fiduciary or other standards or responsibilities or
limitations on the indemnification, acts or powers of trustees or other
Persons, which are inconsistent with the limitations or liabilities or
authorities and powers of the Trustees or officers of the Trust set forth
or referenced in this Trust Agreement.
The Trust shall be of the type commonly called a "business trust," and
without limiting the provisions hereof, the Trust may exercise all powers
which are ordinarily exercised by such a trust under Delaware law. The
Trust specifically reserves the right to exercise any of the powers or
privileges afforded to trusts or actions that may be engaged in by trusts
under the Delaware Act, and the absence of a specific reference herein to
any such power, privilege or action shall not imply that the Trust may not
exercise such power or privilege or take such actions; provided, however,
that the exercise of any such power, privilege or action shall not
otherwise violate applicable law.
SECTION 9.7. AMENDMENTS. Except as specifically provided in Section 6.1,
the Trustees may, without Shareholder vote, amend or otherwise supplement
this Trust Agreement by making an amendment, a Trust Agreement supplemental
hereto or an amended and restated trust instrument.
SECTION 9.8. PROVISIONS IN CONFLICT WITH LAW. The provisions of this
Trust Agreement are severable, and if the Trustees shall determine, with
the advice of counsel, that any of such provisions is in conflict with
applicable law the conflicting provision shall be deemed never to have
constituted a part of this Trust Agreement; provided, however, that such
determination shall not affect any of the remaining provisions of this
Trust Agreement or render invalid or improper any action taken or omitted
prior to such determination. If any provision of this Trust Agreement
shall be held invalid or enforceable in any jurisdiction, such invalidity
or unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provisions in any
other jurisdiction or any other provision of this Trust Agreement in any
jurisdiction.
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SECTION 9.9. SHAREHOLDERS' RIGHT TO INSPECT SHAREHOLDER LIST. One or
more persons who together and for at least six months have been
Shareholders of at least five percent (5%) of the outstanding Shares of any
Class may present to any officer or resident agent of the Trust a written
request for a list of its Shareholders. Within twenty (20) days after such
request is made, the Trust shall prepare and have available on file at its
principal office a list verified under oath by one of its officers or its
transfer agent or registrar which sets forth the name and address of each
Shareholder and the number of Shares of each Class which the Shareholder
holds. The rights provided for herein shall not extend to any person who
is a beneficial owner but not also a record owner of Shares of the Trust.
IN WITNESS WHEREOF, the undersigned, being all of the initial Trustees of
the Trust, have executed this instrument this 4th day of February,
1998.
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxx
[THIS IS THE SIGNATURE PAGE FOR THE AGREEMENT AND DECLARATION OF TRUST OF AIM
SPECIAL OPPORTUNITIES FUNDS]
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