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XXXXXX STRATEGIC MUNICIPAL INCOME TRUST
(FORMERLY XXXXXX TRUST #9)
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
FEBRUARY 27, 1989
AGREEMENT AND DECLARATION OF TRUST made, amended and restated at
Boston, Massachusetts this 27th day of February, 1989, 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
#9, shall hereafter be known as Xxxxxx Strategic Municipal Income Trust 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.
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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.
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
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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 closed-end 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 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.
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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 of 1986, 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 rights
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 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 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
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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 Trustee shall have the
effect of removing any Trustee from office prior to the expiration of his 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, 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 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 shall vest in the
new Trustee (together with the continuing or 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 trust or
retire as a Trustee, by written instrument signed by him 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
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removed with or without cause (i) by the vote of the Shareholders 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
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 who have been such for at
least six months preceding the date of application, and who hold in the
aggregate Shares constituting at least one percent of the outstanding Shares 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 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
cost of mailing to the Shareholders of record 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 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 the 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 Trustees in
their discretion shall determine or, whenever deemed appropriate by the
remaining Trustees, by the election by the Shareholders 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 a 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 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 or any resolution of the Trustees
which authorizes the issuance of a class of shares of beneficial interest other
than Common Shares 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 or any resolution of the
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Trustees which authorizes the issuance of a class of shares of beneficial
interest other than Common Shares.
(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
removal for cause, no person ceasing to be a Trustee as a result of his 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 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 or any resolution of
the Trustees which authorizes the issuance of a class of shares of beneficial
interest other than Common Shares; 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 subcustodians 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
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central handling of securities; retain transfer agents or a 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, 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;
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(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;
(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.
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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 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.
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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 or in addition to said requirements and
restrictions as the Trustees may determine.
The fact that:
(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; (f) to the same extent as the stockholders of a
Massachusetts business corporation as to whether or not a court action,
proceeding or claim should or should not be brought or maintained derivatively
or as a class action on behalf of the Trust or the Shareholders; and (g) 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
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with the Securities and Exchange Commission (or any successor agency) or any
state, or as the Trustees may consider necessary or desirable.
Each whole Share shall be entitled to one vote as to any matter on
which it is entitled to vote and each fractional Share shall be entitled to a
proportionate fractional vote. There shall be no cumulative voting in the
election of Trustees. Shares may be voted in person or by proxy.
A proxy with respect to Shares held in the name of two or more persons
shall be valid if executed by any one of them unless at or prior to 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 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 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 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 at 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 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 holding at least twenty-five percent (25%) (or ten percent (10%) of
the Shares if the purpose of the meeting is to determine if a Trustee is to be
removed from office) of the Shares 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 or in the By-Laws, which purpose shall be
specified in any such written application.
Shareholders shall be entitled to least seven days written notice of
any meeting of the Shareholders.
QUORUM AND REQUIRED VOTE
SECTION 3. The presence at a meeting of Shareholders in person or by
proxy of Shareholders 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. Any lesser number, however, shall be
sufficient for adjournments. Any adjourned sessions 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 or the By-Laws, the vote of a majority of the Shares entitled to vote on
a matter shall decide such matter and the vote of a plurality of the Shares
entitled to vote shall elect a Trustee.
ACTION OF WRITTEN CONSENT
SECTION 4. Any action taken by Shareholders may be taken without a
meeting if Shareholders 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. Such consent shall be treated for all purposes as a vote taken at
a meeting of Shareholders.
ADDITIONAL PROVISIONS
SECTION 5. The By-Laws and any resolution of the Trustees which
authorizes the issuance of a class of shares of beneficial interest other than
Common Shares may include and the Trustees may determine further provisions for
votes and meetings of Shareholders 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, after 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 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
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"regulated investment company" under the Internal Revenue Code of 1986 as
amended (or any successor thereto) 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 in accordance with the Trust's current prospectus with respect to
the Common Shares.
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 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
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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
by 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
Trustee shall be conclusively deemed to have been executed or done only in or
with respect to their or his 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 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 experts with
respect to the meaning and operation of this Declaration of Trust and their
duties as Trustees hereunder, and shall not be under 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 or 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.
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LIABILITY OF THIRD PERSONS 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 in
connection with any claim, action, suit or proceeding in which he becomes
involved as a party or otherwise by virtue of his being or having been such a
Trustee, director or officer and against amounts paid or incurred by him 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 proceeding was
brought that he engaged in willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his office;
(b) with respect to any matter as to which he shall have been finally
adjudicated not to have acted in good faith in the reasonable belief that his
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 disregard of the duties involved in the conduct of his
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 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
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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 Persons 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 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 is then 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 without limitation, attorneys fees,
costs, judgments, amounts paid in settlement, fines, penalties and other
liabilities.
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.
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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 cast.
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 off ice of the Trust where it may be
inspected by any Shareholder. A copy of this instrument and of each amendment
hereto shall be filled 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.
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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 Internal Revenue Code of 1986 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 January 1, 1994, 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 January 9, 1989,
together with the necessary amendments to this Declaration of Trust to permit
such a conversion. The Trustees may at any time propose conversion of the Trust
to an open-end company depending on their judgement 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.
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Xxxxxx X. Xxxxxxx, Sole Trustee
STATE OF ILLINOIS
County of Xxxx, xx.
Then personally appeared the above-named Xxxxxx X. Xxxxxxx who
acknowledged the foregoing instrument to be his free act and deed, before me
this 27th day of February, 1989.
--------------------------------------
Notary Public
My Commission Expires: _______________
"OFFICIAL SEAL"
XXXXXXXXX X. XXXXXX
Notary Public, State of Illinois
My Commission Expires Aug. 18, 1992
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