Exhibit (a)(2)
XXXXXX STRATEGIC INCOME FUND
(FORMERLY XXXXXX TRUST #18)
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
APRIL 8, 1994
AGREEMENT AND DECLARATION OF TRUST made, amended and restated at Boston,
Massachusetts this 8th day of April, 1994, by the Trustee hereunder, and by the
holders of various classes of shares of beneficial interest to be issued
hereunder as hereinafter provided.
WITNESSETH:
WHEREAS, the Trustee hereunder is desirous of forming a trust for the
purposes of carrying on the business of a management investment company; and
WHEREAS, in furtherance of such purposes, the Trustee and any successor
Trustees elected in accordance with Article IV hereof are acquiring and may
hereafter acquire assets and properties, to hold and manage as trustees of a
Massachusetts voluntary association with transferable shares in accordance with
the provisions hereinafter set forth.
NOW, THEREFORE, the Trustee and any successor Trustees elected in
accordance with Article IV hereof hereby declare that they will hold all cash,
securities and other assets and properties, 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 pro rata benefit of the
holders from time to time of shares in this Trust as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
NAME AND REGISTERED AGENT
Section 1. This Trust, which has heretofore been known as Xxxxxx Trust #18,
shall hereafter be known as Xxxxxx Strategic Income 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. The registered agent for the Trust in Massachusetts
shall be CT Corporation System whose address is 0 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx or such other person as the Trustees may from time to time
designate.
DEFINITIONS
Section 2. Whenever used herein, unless otherwise required by the context
or specifically provided:
(a) The "Trust" refers to the Massachusetts voluntary association
established by this Agreement and Declaration of Trust, as amended from
time to time pursuant to Massachusetts General Laws. Chapter 182;
(b) "Trustees" refers to the Trustees of the Trust named herein or
elected in accordance with Article IV hereof and then in office;
(c) "Shares" mean the various units authorized by Article III hereof
into which the beneficial interest in the Trust shall be divided from time
to time and include fractions of Shares as well as whole Shares;
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company Act of 1940 (and
any successor statute) 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 "vote of a majority of the
outstanding voting securities" 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) "By-Laws" shall mean the By-Laws of the Trust as amended from
time to time; and
(i) "Net asset value per Common Share" shall mean the meaning set
forth in Section 2 of Article VI hereof.
(j) "Common Shares" shall mean the common shares of beneficial
interest authorized by Section 1 of Article III hereof.
(k) "Notes" shall mean notes authorized by Section 2(1) of Article IV
hereof which may be issued by the Trust from time to time.
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ARTICLE II
NATURE AND PURPOSE
The Trust is a voluntary association (commonly known as a business trust)
of the type referred to in Chapter 182 of the General Laws of the Commonwealth
of Massachusetts. The Trust is not intended to be, shall not be deemed to be,
and shall not be treated as, a general or limited partnership, joint venture,
corporation or joint stock company, nor shall the Trustees or Shareholders or
any of them for any purpose be deemed to be, or be treated in any way whatsoever
as though they were, liable or responsible hereunder as partners or joint
venturers. The purpose of the Trust is to engage in, operate and carry on the
business of a management investment company; and to do any and all acts or
things as are necessary, convenient, appropriate, incidental or customary in
connection therewith.
ARTICLE III
SHARES
DIVISION OF BENEFICIAL INTEREST
Section 1. A class of common shares of beneficial interest, $.01 par value,
is hereby authorized, and each Common Share shall represent an equal
proportionate interest with each other Common Share, no such Common Share having
a preference or priority over any other Common Share. In addition to the Common
Shares authorized by this Section 1 of Article III, the Trustees may authorize
additional separate classes of shares of beneficial interest, $.01 par value,
together with such preferences, voting powers, qualifications and special or
relative rights or privileges as may be determined from time to time by
resolution of the Trustees. The number of Shares of each class authorized shall
be unlimited, and the Shares so authorized may be represented in part by
fractional Shares. The Trustees may from time to time divide or combine the
Shares into a greater or lesser number without thereby changing the
proportionate beneficial interests in the Trust represented by such shares. The
Trustees may authorize that the Shares of a particular class be issued in as
many series with such preferences, voting powers, qualifications and special or
relative rights or privileges as may be determined from time to time by
resolution of the Trustees. Each series of a class shall have a distinguishing
designation. All Shares issued hereunder including, without limitation, Shares
issued in connection with a dividend in Shares or a split of Shares, shall be
fully paid and nonassessable.
OWNERSHIP OF SHARES
Section 2. The ownership and transfer of Shares shall be recorded on the
books of the Trust or its transfer or similar agent or agents. 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
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kept by the Trust or any transfer or similar agent or agents of the Trust, as
the case may be, shall be conclusive as to who are the Shareholders of the Trust
and as to the number of Shares held from time to time by each Shareholder.
INVESTMENTS IN TRUST
Section 3. The Trustees may issue Shares of the Trust to such persons and
on such terms and, subject to any requirements of law, for such consideration,
which may consist of cash or tangible or intangible property or a combination
thereof, as they may from time to time authorize.
All consideration received by the Trust for the issue or sale of Shares,
together with all income, earnings, profits, and proceeds thereof, including any
proceeds derived from the sale, exchange or liquidation thereof, and any funds
or payments derived from any reinvestment of such proceeds in whatever form the
same may be, shall irrevocably belong to the Trust for all purposes, subject
only to the rights of creditors, and shall be so handled upon the books of
account of the Trust.
MERGER OR CONSOLIDATION
Section 4. In connection with the acquisition of all, or substantially all,
of the assets or stock of another investment company, investment trust, or of a
company classified as a personal holding company under the Internal Revenue
Code, the Trustees may issue or cause to be issued Shares and accept in payment
therefor, in lieu of cash, such assets at their market value, or such stock at
the market value of the assets held by such investment company or investment
trust, either with or without adjustment for contingent costs or liabilities.
NO PREEMPTIVE RIGHTS, ETC.
Section 5. Shareholders shall have no preemptive or other right to receive,
purchase or subscribe for any additional Shares or other securities issued by
the Trust. The Shareholders shall have no appraisal rights with respect to their
Shares and, except as otherwise determined by resolution of the Trustees in
their sole discretion, shall have no exchange or conversion right with respect
to their Shares.
STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY
Section 6. Shares shall be deemed to be personal property giving only the
rights provided in this instrument. Every Shareholder by virtue of having become
a Shareholder shall be held to have expressly assented and agreed to the terms
of the Declaration of Trust and to have become a party 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
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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.
SHAREHOLDER INSPECTION RIGHTS
Section 7. Any Shareholder or his or her agent may inspect and copy during
normal business hours any of the following documents of the Trust: By-Laws,
minutes of the proceedings of the Shareholders and annual financial statements
of the Trust, including a statement of net assets and a statement of operations.
The foregoing rights of inspection of Shareholders of the Trust are the
exclusive and sole rights of the Shareholders with respect thereto and no
Shareholder of the Trust shall have, as a Shareholder, the right to inspect or
copy any of the books, records or other documents of the Trust except as
specifically provided in this Section 7 of this Article III or except as
otherwise determined by the Trustees.
ARTICLE IV
THE TRUSTEES
NUMBER, DESIGNATION, ELECTION, TERM, ETC.
Section 1. (a) Initial Trustee. Upon his execution of this Declaration of
Trust or a counterpart hereof or some other writing in which he accepts such
Trusteeship and agrees to the provisions hereof, Xxxxxx X. Xxxxxxx shall
continue as sole Trustee hereof.
(b) Number. The Trustees serving as such, whether named above or hereafter
becoming Trustees, may increase or decrease the number of Trustees to a number
other than the number theretofore determined which number shall not be less than
three nor more than 15 except during the period that the initial Trustee named
above is sole Trustee. Except as determined from time to time by resolution of
the Trustees, no decrease in the number of Trustees shall have the effect of
removing any Trustee from office prior to L'.e expiration of such Trustee's
term, but the number of Trustees may be decreased in conjunction with the
removal of a Trustee pursuant to subsection (e) of this Section 1 of Article IV.
(c) Term and Election. Each Trustee, whether named above or hereafter
becoming a Trustee, shall serve as a Trustee until the next meeting of
Shareholders or holders of Notes, if any, called for the purpose of considering
the election or re-election of such Trustee or of a successor to such Trustee,
and until the election and qualification of his or her successor, if any,
elected at such meeting, or until such Trustee sooner dies, resigns. retires or
is removed. Upon the election and qualification of a new Trustee, the Trust
estate
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shall vest in the new Trustee (together with the continuing of other new
Trustees) without any further act or conveyance. Prior to any sale of Shares
pursuant to any public offering, the initial Trustee named above shall have the
right to appoint other persons as Trustees each to serve with such initial
Trustee as aforesaid until the first meeting of Shareholders called for the
purpose of the election or re-election of such Trustee or of a successor to such
Trustee.
(d) Resignation and Retirement. Any Trustee may resign his or her trust or
retire as a Trustee, by written instrument signed by him or her and delivered to
the other Trustees or the Chairman of the Board, if any, the President or the
Secretary of the Trust, and such resignation or retirement shall take effect
upon such delivery or upon such later date as is specified in such instrument.
(e) Removal Any Trustee may be removed for cause at any time by written
instrument, signed by at least a majority of the number of the Trustees prior to
such removal, specifying the date upon which such removal shall become
effective. Any Trustee may be removed with or without cause (i) by the vote of
the Shareholders or holders of Notes entitled to vote more than fifty percent
(50%) of the votes entitled to be cast on the matter voting at any meeting
called for such purpose, or (ii) by a written consent filed with the Secretary
of the Trust and executed by the Shareholders or holders of Notes entitled to
vote more than fifty percent (50%) of the votes entitled to be cast on the
matter.
Whenever ten or more Shareholders of record or holders of Notes who have
been such for at least six months preceding the date of application, and who
hold in the aggregate Shares or Notes constituting at least one percent of the
outstanding Shares or Notes of the Trust entitled to vote on the matter, shall
apply to the Trustees in writing stating that they wish to communicate with
other Shareholders or holders of Notes entitled to vote on the matter with a
view to obtaining signatures to a request for a meeting to consider removal of a
Trustee and accompanied by a form of communication and request that they wish to
transmit, the Trustees shall within five business days after receipt of such
application inform such applicants as to the approximate cos: of mailing to the
Shareholders of record or holders of Notes entitled to vote on the matter the
proposed communication and form of request. Upon the written request of such
applicants, accompanied by a tender of the material to be mailed and of the
reasonable expenses of mailing, the Trustees shall, with reasonable promptness,
mail such material to all Shareholders of record or holders of Notes entitled to
vote on the matter at their addresses as recorded on the books of the Trust.
Notwithstanding the foregoing, the Trustees may refuse to mail such material on
the basis and in accordance with the procedures set forth in that last two
paragraphs of Section 16(c) of the 1940 Act.
(f) Vacancies. Any vacancy or anticipated vacancy resulting from any
reason, including without limitation the death, resignation, retirement removal
or incapacity of any of the Trustees, or resulting from an increase in the
number of Trustees by the other Trustees, may (but so long as there are at least
three remaining Trustees, need not unless required by the 0000 Xxx) be filled
either by a majority of the remaining Trustees, even if less than a quorum,
through the appointment in writing of such person as such remaining
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Trustees in their discretion shall determine or, whenever deemed appropriate by
the remaining Trustees, by the election by the Shareholders or the holders of
Notes entitled to vote on the matter, at a meeting called for such purpose, or a
person to fill such vacancy. Upon the appointment or election and qualification
of a new Trustee as aforesaid the Trust estate shall vest in new Trustee,
together with the continuing Trustees, without any further act or conveyance,
except that any such appointment or election in anticipation of a vacancy to
occur by sign of retirement, resignation, or increase, in number of Trustees to
be effective at a later date shall become effective only at or after the
effective date of said retirement, resignation, or increase in number of
Trustees.
(g) Mandatory Election by Shareholders. Notwithstanding the foregoing
provisions (a) through (f) of this Section 1 of Article IV, the Trustees shall
call a meeting of the Shareholders or the holders of Notes entitled to vote on
the matter for the election of one or more Trustees at such time or times as may
be required in order that the provisions of the 1940 Act, any resolution of the
Trustees which authorizes the issuance of a class of shares of beneficial
interest other than Common Shares or any resolution of the Trustees which
authorizes the issuance of Notes under Article IV, Section 2(1) may be complied
with, and the authority hereinabove provided for the Trustees to appoint any
successor Trustee or Trustees shall be restricted if such appointment would
result in failure of the Trust to comply with any provision of the 1940 Act, any
resolution of the Trustees which authorizes the issuance of a class of shares of
beneficial interest other than Common Shares or any resolution of the Trustees
which authorizes the issuance of Notes under Article IV, Section 2(1).
(h) Effect of Death, Resignation, Etc. The death, resignation, retirement,
removal or incapacity of the Trustees, or any one of them, shall not operate to
annul or terminate the Trust or to revoke or terminate any existing agency or
contract created or entered into pursuant to the terms of this Declaration of
Trust.
(i) No Accounting. Except under circumstances which would justify his or
her removal for cause, no person ceasing to be a Trustee as a result of his or
her death, resignation, retirement, removal or incapacity (nor the estate of any
such person) shall be required to make an accounting to the Shareholders or
remaining Trustees under such cessation.
POWERS
Section 2. The Trustees, subject only to the specific limitations contained
in this Declaration of Trust, limitations otherwise imposed by the 1940 Act,
limitations imposed by any other applicable law or limitations imposed by any
resolution of the Trustees which authorizes the issuance of a class of shares of
beneficial interest other than Common Shares, shall have, without further or
other authorization and free from any power or control of the Shareholders,
full, absolute and exclusive power, control and authority over the Trust assets
and the business and affairs of the Trust to the same extent as if the Trustees
were the sole and absolute owners thereof in their own right and to do all such
acts and things as in their sole judgment and discretion are necessary and
incidental to, or desirable for the carrying
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out of any of the purposes of the Trust or conducting the business of the Trust.
Any determination made in good faith by the Trustees of the purposes of the
Trust or the existence of any power or authority hereunder shall be conclusive.
In construing the provisions of this Declaration of Trust, there shall be a
presumption in favor of the grant of power and authority to the Trustees.
Without limiting the foregoing, the Trustees may adopt By-Laws not inconsistent
with this Declaration of Trust containing provisions relating to the business of
the Trust, the conduct of its affairs, its rights or powers and the rights or
powers of its Shareholders, Trustees, officers, employees and other agents and
may amend and repeal such By-Laws to the extent that such By-laws do not reserve
that right to the Shareholders; fill vacancies in their number, including
vacancies resulting from increase in their number, unless a vote of the Trust's
Shareholders is required to fill such vacancies pursuant to the 1940 Act, any
resolution of the Trustees which authorizes the issuance of a class of shares of
beneficial interest other than Common Shares or any resolution of the Trustees
which authorized the issuance of Notes under Article IV, Section 2(1); elect and
remove such officers and appoint and terminate such agents as they consider
appropriate; 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
powers and authority of the Trustees as the Trustees may determine; appoint an
advisory board, the members of which shall not be Trustees and need not be
Shareholders; employ one or more investment advisers or managers as provided in
Section 6 of this Article IV; employ one or more custodians of the assets of the
Trust and authorize such custodians to employ administrators as provided in
Section 6 of this Article IV; employ one or more subcustodians and to deposit
all or any part of such assets in a system or systems for the central handling
of securities; retain transfer agents or Shareholder services agents, or both;
provide for the distribution of Shares by the Trust, through one or more
principal underwriters or otherwise; set record dates for the determination of
Shareholders with respect to various matters; and in general delegate such
authority as they consider desirable to any officer of the Trust, to any
committee of the Trustees and to any agent or employee of the Trust or any such
custodian or underwriter.
In furtherance of and not in limitation of the foregoing, the Trustees
shall have power and authority:
(a) To invest and reinvest in, to buy or otherwise acquire, to hold,
for investment or otherwise, to sell or otherwise dispose of, to lend or to
pledge, to trade in or deal in securities or interests of all kinds,
however evidenced, or obligations of all kinds, however evidenced, or
rights, warrants, or contracts to acquire such securities, interests, or
obligations, or any private or public company, corporation, association,
general or limited partnership, trust or other enterprise or organization,
foreign or domestic, or issued or guaranteed by any national or state
government, foreign or domestic, or their agencies, instrumentalities or
subdivisions (including but not limited to, bond, debentures, bills, time
notes and all other evidences of indebtedness); negotiable or
non-negotiable instruments; any and all futures contracts; government
securities and money market instruments (including but not limited to,
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bank certificates of deposit, finance paper, commercial paper, bankers
acceptances and all kinds of repurchase agreements);
(b) To invest and reinvest in, to buy or otherwise acquire, to hold,
for investment or otherwise, to sell or otherwise dispose of foreign
currencies and funds and exchanges, and make deposits in banks, savings
banks, trust companies, and savings and loan association, foreign or
domestic;
(c) To acquire (by purchase, lease or otherwise) and to hold, use,
maintain, develop, and dispose of (by sale or otherwise) any property, real
or personal, and any interest therein:
(d) To sell, exchange, lend, pledge, mortgage, hypothecate, write
options on and lease any or all of the assets of the Trust;
(e) 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 power 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;
(f) To exercise powers and rights of subscription or otherwise which
in any manner arise out of ownership of securities;
(g) 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 same of a custodian,
subcustodian or other depositary or a nominee or nominees or otherwise;
(h) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer, any security or
property 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;
(i) To join with 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;
(j) 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;
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(k) To enter into joint ventures, general or limited partnerships or
any other combinations or associations;
(l) To borrow funds;
(m) 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;
(n) 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; and
(o) 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.
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 of common law trusts.
Except as otherwise provided herein or from time to time in the By-Laws, any
action to be taken by the Trustees may be taken by a majority of the Trustees
present at a meeting of Trustees (if a quorum be 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 communicate with each other simultaneously and participation by
such means shall constitute presence in person at a meeting, or by written
consents of a majority of the Trustees then in office.
PAYMENT OF EXPENSES, ALLOCATION OF LIABILITIES
Section 3. The Trustees are authorized to pay or to cause to be paid out of
the principal or income of the Trust, or partly out of principal and partly out
of income, as they deem fair, all expenses, fees, charges, taxes and liabilities
incurred or arising in connection
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with the Trust, or in connection with the management thereof, including, but not
limited to, the Trustees' compensation and such expenses and charges for the
service 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.
Section 4. The Trustees shall have the power, as frequently as they may
determine, to cause each Shareholder to pay directly, in advance or arrears,
for charges for the Trust's custodian or transfer or Shareholder service or
similar agent, an amount fixed from time to time by the Trustees, by setting off
such charges due from such Shareholder from declared but unpaid dividends owed
such Shareholder and/or by reducing the number of Shares in the account of such
Shareholder by that number of full and/or fractional Shares which represents the
outstanding amount of such charges due from such Shareholder.
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 AND/OR MANAGEMENT AGREEMENT, DISTRIBUTION AGREEMENT, ADMINISTRATION
AGREEMENT, SERVICES
Section 6. Subject to a favorable vote of a majority of the outstanding
voting securities of the Trust, the Trustees may, at any time and from time to
time, contract for exclusive or nonexclusive advisory, and/or management
services with a corporation, trust, association or other organization, every
such contract to comply with such requirements and restrictions as may be set
forth in the By-Laws; 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 a
corporation, trust, association or other organization, appointing it exclusive
or nonexclusive distributor or principal underwriter for the Shares and/or
Administrator for the Fund in connection with such services as the Trustees deem
appropriate, every such contract to comply with such requirements and
restrictions as may be set forth in the By-Laws; and any such contract may
contain such other terms interpretive of in addition to said requirements and
restrictions as the Trustees may determine.
The fact that:
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(a) 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 management or administrative or principal
underwriter's or distributor's contract, or transfer, shareholder services 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
(b) any corporation, trust, association or other organization with which an
advisory, management or administrative or principal underwriter's or
distributor's contract, or transfer, shareholder services or other agency
contract may have been or may hereafter be made also has an advisory, management
or administrative contract, or principal underwriter's or distributor's
contract, or transfer, shareholder services or other agency contract with one or
more other corporations, trusts, associations, or other organizations, 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.
ARTICLE V
SHAREHOLDERS VOTING POWERS AND MEETINGS
VOTING POWERS
Section 1. The Shareholders shall have power to vote only: (a) for the
election or removal of Trustees as provided in Article IV, Section 1; (b) with
respect to any investment adviser or manager as provided in Article IV, Section
6; (c) with respect to any termination or reorganization of the Trust to the
extent and as provided in Article IX, Section 1; (d) with respect to any
amendment of this Declaration of Trust to the extent and as provided in Article
IX, Section 4; (e) with respect to any conversion of the Trust as provided in
Article IX, Section 5; and (f) with respect to such additional matters relating
to the Trust as may be required by law, the 1940 Act, this Declaration of Trust,
the By-Laws, any resolution of the Trustees which authorizes the issuance of a
class of shares of beneficial interest other than Common Shares, 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. In addition, the holders of any Notes issued under Article IV,
Section 2(1) shall have the power to vote only with respect to such matters as
may be required by law, the 1940 Act or any resolution of the Trustees which
authorizes the issuance of such Notes.
Each whole Share and each Note 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. There shall be no cumulative voting
in the election of Trustees. Shares and Notes may be voted in person or by
proxy.
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A proxy with respect to Shares or Notes held in the name of two or more
persons shall be valid if executed by any one of them unless at or prior to the
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 or the holder of a Note shall be declared valid unless
challenged at or prior to its exercise and the burden of proving invalidity
shall rest on the challenger.
Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required by law, this Declaration of Trust
or by the By-Laws to be taken by Shareholders.
SHAREHOLDERS' MEETINGS
Section 2. Meetings of Shareholders or the holders of Notes may be called
and held from time to time for the purpose of taking action upon any matter
requiring the vote of authority of the Shareholders or the holders of Notes as
herein provided or upon any other matter deemed by the Trustees to be necessary
or desirable. Such meetings shall be held at the principal office of the Trust
as set forth in the By-Laws of the Trust or any such other place within the
United States as may be designated in the call thereof, which call shall be made
by the Trustees or the President of the Trust. Meetings of Shareholders or the
holders of Notes may be called by the Trustees or such other person or persons
as may be specified in the By-Laws upon written application by Shareholders or
the holders of Notes holding at least twenty-five percent (25%) (or ten percent
(10%) of the Shares or Notes if the purpose of the meeting is to determine if a
Trustee is to be removed from office) of the Shares or Notes then outstanding
and entitled to vote on the matter requesting a meeting be called for a purpose
requiring action by the Shareholders or the holders of Notes as provided herein,
in any resolution of the Trustees which authorizes the issuance of a class of
shares of beneficial interest other than Common Shares, in any resolution of the
Trustees which authorizes the issuance of Notes under Article IV, Section 2(1)
or in the By-Laws, which purpose shall be specified in any such written
application.
Shareholders or the holders of Notes shall be entitled to at least seven
days written notice of any meeting of the Shareholders or the holders of Notes.
QUORUM AND REQUIRED VOTE
Section 3. The presence at a meeting of Shareholders or the holders of
Notes in person or by proxy of Shareholders or the holders of Notes entitled to
vote at least thirty percent (30%) of all votes entitled to be cast at the
meeting shall be a quorum for the transaction of business at a meeting of
Shareholders or the holders of Notes. Any lesser number, however, shall be
sufficient for adjournments. Any adjourned session or sessions may be held
within a reasonable time after the date set for the original meeting without the
necessity of further notice.
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Except when a larger vote is required by any provisions of the 1940 Act,
this Declaration of Trust, any resolution of the Trustees which authorizes the
issuance of a class of shares of beneficial interest other than Common Shares,
any resolution of the Trustees which authorizes the issuance of Notes under
Article IV, Section 2(1) or the By-Laws, the vote of a majority of the Shares or
Notes entitled to vote on a matter shall decide such matter and the vote of a
plurality of the Shares or Notes entitled to vote shall elect a Trustee.
ACTION OF WRITTEN CONSENT
Section 4. Any action taken by Shareholders or the holders of Notes may be
taken without a meeting if Shareholders or the holders or Notes entitled to vote
more than fifty percent (50%) of the votes entitled to be cast on the matter
consent to the action in writing and such written consents are filed with the
records of the meetings of Shareholders or the holders of Notes. Such consent
shall be treated for all purposes as a vote taken at a meeting of Shareholders
or the holders of Notes.
ADDITIONAL PROVISIONS
Section 5. The By-Laws, any resolution of the Trustees which authorizes the
issuance of a class of shares of beneficial interest other than Common Shares
and any resolution of the Trustees which authorizes the issuance of Notes under
Article IV, Section 2(1) may include and the Trustees may determine further
provisions for votes and meetings of Shareholders or the holders of Notes and
related matters not inconsistent with the provisions hereof.
ARTICLE VI
DISTRIBUTIONS, REPURCHASES, TENDERS
AND OTHER SHARE ACQUISITIONS
DISTRIBUTIONS
Section 1. The Trustees may in their sole discretion from time to time
distribute to the Shareholders such income and gains accrued or realized, as the
Trustees may determine, ___er providing for actual and accrued expenses and
liabilities (including such reserves as the Trustees may establish) determined
in accordance with this Declaration of Trust and good accounting practices. The
Trustees shall have full discretion to determine which items shall be treated as
income and which items as capital and their determination shall be binding upon
the Shareholders. Distributions, if any be made, shall be in Shares, in cash or
otherwise and on a date or dates determined by the Trustees. At any time and
from time to time in their discretion, the Trustees may distribute to the
Shareholders as of a record date or dates determined by the Trustees, in Shares,
in cash or otherwise all or part of any gains realized on the sale or
disposition of property of the Trust or otherwise, or all or part of any other
principal of the Trust. Each distribution of Common Shares pursuant to this
Section 1 shall be made ratably according to the number of Common Shares held by
the
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several Common Shareholders on the applicable record date. Any distribution to
Common Shareholders paid in Common Shares will be paid at the net asset value
thereof as determined in accordance with this Declaration of Trust or at such
other value as may be specified by the By-Laws or as the Trustees may from time
to time determine, subject to applicable laws and regulations then in effect.
The Trustees have the power, in their discretion, to distribute for any year an
amount sufficient to enable the Trust to qualify as a "regulated investment
company" under the Internal Revenue Code to avoid any liability for federal
income tax in respect of that year.
DETERMINATION OF NET ASSET VALUE
Section 2. The term "net asset value" of each Common Share as of any
particular time shall be the quotient obtained by dividing the value, as of such
time, of the net assets of the Trust (i.e., the value of the assets of the Trust
less the liabilities of the Trust, exclusive of liabilities represented by the
Common Shares of the Trust, less the liquidation value of all shares outstanding
which were issued pursuant to a resolution of the Trustees which authorizes the
issuance of a class of shares of beneficial interest other than Common Shares)
by the total number of Common Shares outstanding at such time, all determined
and computed as determined by the Trustees.
The Trustees, or any officer, of officers or agent of the Trust designated
for the purpose by the Trustees shall determine the net asset value of the
Common Shares and the Trustees shall fix the time or times as of which the net
asset value of the Shares shall be determined and shall fix the periods during
which any such net asset value shall be effective as to sales, and other
transactions in the Common Shares, except as such times and periods for any such
transaction may be fixed by other provisions of this Declaration of Trust or by
the By-Laws.
Determinations in accordance with this Section 2 made in good faith shall
be binding on all parties concerned.
REPURCHASES, TENDERS AND OTHER SHARE ACQUISITIONS
Section 3. Shares of the Trust may be reacquired by the Trust through
repurchases in the open market, through tender offers to Shareholders under such
conditions as the Trustees deem appropriate, or by other acquisitions of any
nature deemed desirable or in the best interest of the Trust.
ARTICLE VII
COMPENSATION AND LIMITATION OF
LIABILITY OF COMPENSATION
Section 1. The Trustees as such shall be entitled to reasonable
compensation from the Trust if the rate thereof is prescribed by such Trustees.
Nothing herein shall in any way
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prevent the employment of any Trustee for advisory, management, legal,
accounting, investment banking or other services and payment for the same by the
Trust, it being recognized that such employment may result in such Trustee being
considered an Affiliated Person or an Interested Person.
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, investment advisor or
manager, principal underwriter or custodian, nor shall any Trustee be
responsible for the act or omission of any other Trustee. 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, Share 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 neither such Trustees or
Trustee nor the Shareholders shall be personally liable thereon.
Every note, bond, contract, instrument, certificate or undertaking made or
issued by the Trustees or by any officers or officer 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 by them as Trustees or Trustee or as officers or officer 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 Trustees or Trustee or officers or officer or Shareholders or
Shareholder individually.
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.
TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY
Section 3. The exercise by the Trustees of their powers and discretions
hereunder shall be binding upon everyone interested. A Trustee shall be liable
only for his 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, and shall not be liable for errors of judgment or mistakes of
fact or law. The Trustees may take advice of counsel or other
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experts with respect to the meaning and operation of this Declaration of Trust
and their duties as Trustees hereunder, and shall be under no liability for any
act or omission in accordance with such advice or for failing to follow such
advice. In discharging their duties, the Trustees, when acting in good faith,
shall be entitled to rely upon the books of account of the Trust and upon
written reports made to the Trustees by any officer appointed by them, any
independent public accountant and (with respect to the subject matter of the
contract involved) any officer, partner or responsible employee of any other
party to any contract entered into pursuant to Section 2 of Section 6 of Article
IV. The Trustees shall not be required to give any bond as such, nor any surety
if a bond is required.
LIABILITY OF THIRD PERSON DEALING WITH TRUSTEES
Section 4. 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.
ARTICLE VIII
INDEMNIFICATION
Subject to the exceptions and limitations contained in this Article, every
person who is, or has been, a Trustee or officer of the Trust (including persons
who serve at the request of the Trust as directors, officers or trustees of
another organization in which the Trust has an interest as a shareholder,
creditor or otherwise) hereinafter referred to as a "Covered Person", shall be
indemnified by the Trust to the fullest extent permitted by law against
liability and against all expenses reasonably incurred or paid by him or her in
connection with any claim, action, suit or proceeding in which he or she becomes
involved as a party or otherwise by virtue of his or her being or having been
such a Trustee, director or officer and against amounts paid or incurred by him
or her in settlement thereof.
No indemnification shall be provided hereunder to a Covered Person;
(a) against any liability to the Trust or its Shareholders by reason
of a final adjudication by the court or other body before which the
proceedings was brought that he or she engaged in willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of his or her office;
(b) with respect to any matter as to which he or she shall have been
finally adjudicated not to have acted in good faith in the reasonable
belief that his or her action was in the best interests of the Trust; or
(c) in the event of a settlement or other disposition not involving a
final adjudication (as provided in paragraph (a) or (b)) and resulting in a
payment by a Covered Person, unless there has been either a determination
that such Covered Person did not engage in willful misfeasance, bad faith,
gross negligence or reckless
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disregard of the duties involved in the conduct of his or her office by the
court or other body approving the settlement or other disposition or a
reasonable determination, based on a review of readily available facts (as
opposed to a full trial-type inquiry) that he or she did not engage in such
conduct:
(i) by a vote of 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
(ii) by written opinion of independent legal counsel.
The rights of indemnification herein provided may be insured against by
policies maintained by the Trust, shall be severable, shall not affect any other
rights to which any Covered Person may now or thereafter be entitled, shall
continue as to a person who has ceased to be such a Covered Person and shall
insure to the benefit of the heirs, executors and administrators of such a
person. Nothing contained herein shall affect any rights to indemnification to
which Trust personnel other than Covered Person may be entitled by contract or
otherwise under law.
Expenses of preparation and presentation of a defense to any claim, action,
suit or proceeding subject to a claim for indemnification under this Article
VIII shall be advanced by the Trust prior to final disposition thereof upon
receipt of an undertaking by or on behalf of the recipient to repay such amount
if it is ultimately determined that he or she is not entitled to indemnification
under this Article VIII provided that either:
(a) such undertaking is secured by a surety bond or some other
appropriate security or the Trust shall be insured against losses arising
out of any such advances; or
(b) 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
determine, based upon a review of the readily available facts (as opposed
to a full trial-type inquiry), that there is reason to believe that the
recipient ultimately will be found entitled to indemnification.
As used in this Article VIII, a "Disinterested Trustee" is one (a) who is
not an Interested Person of the Trust (including anyone who has been exempted
from being an Interested Person by any rule, regulation or order of the
Commission), and (b) against whom none of such actions, suits or other
proceedings or another action, suit or other proceeding on the same or similar
grounds _______ or has been pending.
As used in this Article VIII, the words "claim", "action", "suit" or
"proceeding" shall apply to all claims, actions, suits, proceedings (civil,
criminal or other, including appeals). actual or threatened; and the words
"liability" and "expenses" shall include within limitation, attorneys fees,
costs, judgments, amounts paid in settlement, fines, penalties and other
liabilities.
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In case any Shareholders 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 entity, its corporate or other general successor) shall
be entitled to be held harmless from and indemnified against all loss or expense
arising from such liability but only out of the assets of the Trust; provided,
however, there shall be no liability or obligation of the Trust arising
hereunder to reimburse any Shareholder for taxes paid by reason of such
Shareholder's ownership of Shares or for losses suffered by reason of any
changes in value of any Trust assets.
ARTICLE IX
MISCELLANEOUS
DURATION, TERMINATION AND REORGANIZATION OF TRUST
Section 1. 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 without a vote of the
shareholders of the Trust or by the vote of the Shareholders entitled to vote
more than fifty percent (50%) of the votes entitled to be case.
Subject to any requirements of the 1940 Act, upon termination of the Trust
after paying or otherwise providing for all charges, taxes, expenses and
liabilities, whether due or accrued or anticipated, the Trust shall in
accordance with such procedures as the Trustees consider appropriate reduce the
remaining assets of the Trust to distributable form in cash or other securities,
or any combination thereof, and distribute the proceeds to the holders of
classes of shares of beneficial interest in the Trust, other than Common Shares,
which have been authorized by resolution of the Trustees, in the manner set
forth by such resolution, and to the Common Shareholders, ratably according to
the number of Common Shares of the Trust held by the several Common Shareholders
of the Trust on the date of termination.
At any time by the affirmative vote of the Shareholders of the Trust
entitled to vote more than fifty percent (50%) of the votes entitled to be cast,
the Trustees may sell, convey and transfer the assets of the Trust, to another
trust, partnership, association or corporation organized under the laws of any
state of the United States in exchange for cash, shares or other securities with
such transfer being made subject to, or with the assumption by the transferee
of, the liabilities belonging to the Trust. Following such transfer, the
Trustees shall distribute such cash, shares or other securities among the
Shareholders of the Trust, and if all of the assets of the Trust have been so
distributed, the Trust shall be terminated.
FILING OF COPIES, REFERENCES, HEADINGS
Section 2. 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
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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", and "hereof, and
"hereunder", shall be deemed to refer to this instrument as amended from time to
time. 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. The instrument may be executed in any number of
counterparts each of which shall be deemed an original.
APPLICABLE LAWS
Section 3. 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 4. This Declaration of Trust may be amended at any time by an
instrument in writing signed by a majority of the then Trustees when authorized
so to do by vote of Shareholders holding more than fifty percent (50%) of the
Shares entitled to vote. 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 provision which is defective or inconsistent
with the 1940 Act or with the requirements of the Internal Revenue Code and the
regulations thereunder for the Trust's obtaining the most favorable treatment
thereunder available to regulated investment companies shall not require
authorization by Shareholder vote.
CONVERSION
Section 5. If any class of Shares of the Trust which are listed on one or
more securities exchanges have traded on the principal securities exchange where
listed at an average discount from net asset value of more than ten percent
(10%), determined on the basis of the discount as of the end of the last trading
day in each week during the period of twelve (12) calendar weeks preceding May
1, 1999, the Trustees will submit to the Shareholders at the next succeeding
meeting, a proposal to convert the Trust from a "closed-end company" to an
"open-end company" as those terms are defined in Sections 5(a)(2) and 5(a)(1),
respectively, of the 1940 Act as in effect on April 8, 1994, together with the
necessary amendments to this Declaration of Trust to permit such a conversion.
The
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Trustees may at any time propose conversion of the Trust to an open-end company
depending on their judgment as to the advisability of such action in light of
circumstances then prevailing. Upon the adoption of such proposal and related
amendments by a vote of a majority of the outstanding voting securities of the
Trust, the Trust shall, upon complying with any requirements of the 1940 Act,
any applicable state law and any resolution of the Trustees which authorizes the
issuance of a class of shares of beneficial interest other than Common Shares,
become an "open-end" investment company. Such affirmative vote or consent shall
be in addition to the vote or consent of the holders of the Shares otherwise
required by law, or any agreement between the Trust and any national securities
exchange.
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IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal for
himself and his assigns, as of the day and year first above written.
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, Sole Trustee
000 XXXXXX XXX
XXXX XXXXX, XX 00000
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
Then personally appeared the above-named Xxxxxx X. Xxxxxxx who acknowledged
the foregoing instrument to be his free act and deed, before me this 8th day of
April, 1994.
/s/ Xxxx X XxXxxxxxxxx
----------------------------------------
Notary Public
My Commission Expires: 6/21/97
(SEAL)
TRUST ADDRESS
000 XXXXX XxXXXXX XX
Xxxxxxx, XXXXXXXX 00000
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FEE PAID
$100.00
(ILLEGIBLE)
CASHIERS
SECRETARY'S OFFICE
(ILLEGIBLE)
(STAMP)
