FORM OF
FEDERATED COVERED CALL TREASURY FUND
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
Dated as of [____________], 2005
TABLE OF CONTENTS
PAGE
ARTICLE I
NAME AND DEFINITIONS
1.1 Name............................................................. 1
1.2 Definitions...................................................... 1
ARTICLE II
TRUSTEES
2.1 Number and Qualification......................................... 3
2.2 Term and Election................................................ 3
2.3 Resignation and Removal.......................................... 3
2.4 Vacancies........................................................ 4
2.5 Meetings......................................................... 4
2.6 Trustee Action by Written Consent................................ 5
2.7 Officers......................................................... 5
ARTICLE III
POWERS AND DUTIES OF TRUSTEES
3.1 General.......................................................... 5
3.2 Investments...................................................... 5
3.3 Legal Title...................................................... 5
3.4 Issuance and Repurchase of Shares................................ 5
3.5 Borrow Money or Utilize Leverage................................. 5
3.6 Delegation; Committees........................................... 6
3.7 Collection and Payment........................................... 6
3.8 Expenses......................................................... 6
3.9 By-Laws.......................................................... 6
3.10 Miscellaneous Powers............................................. 6
3.11 Further Powers................................................... 7
ARTICLE IV
ADVISORY, MANAGEMENT AND DISTRIBUTION ARRANGEMENTS
4.1 Advisory and Management Arrangements............................. 7
4.2 Distribution Arrangements........................................ 7
4.3 Other Arrangements............................................... 7
4.4 Parties to Contracts............................................. 8
ARTICLE V
LIMITATIONS OF LIABILITY AND INDEMNIFICATION
5.1 No Personal Liability of Shareholders, Trustees, etc............. 8
5.2 Mandatory Indemnification........................................ 9
5.3 No Bond Required of Trustees..................................... 10
5.4 No Duty of Investigation; Notice in Trust Instruments, etc....... 10
5.5 Reliance on Experts, etc......................................... 10
5.6 Insurance........................................................ 10
5.7 Derivative Actions............................................... 10
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ARTICLE VI
SHARES OF BENEFICIAL INTEREST
6.1 Beneficial Interest.............................................. 11
6.2 Other Securities................................................. 11
6.3 Rights of Shareholders........................................... 11
6.4 Trust Only....................................................... 11
6.5 Issuance of Shares............................................... 11
6.6 Register of Shares............................................... 12
6.7 Transfer Agent and Registrar..................................... 12
6.8 Transfer of Shares............................................... 12
6.9 Notices.......................................................... 12
ARTICLE VII
CUSTODIANS
7.1 Appointment and Duties........................................... 12
7.2 Central Certificate System....................................... 13
ARTICLE VIII
REDEMPTION
8.1 Redemptions...................................................... 13
8.2 Disclosure of Holding............................................ 13
ARTICLE IX
DETERMINATION OF NET ASSET VALUE, NET INCOME AND DISTRIBUTIONS
9.1 Net Asset Value.................................................. 14
9.2 Distributions to Shareholders.................................... 14
9.3 Power to Modify Foregoing Procedures............................. 14
9.4 Dividend Reinvestment Plan....................................... 15
ARTICLE X
SHAREHOLDERS
10.1 Meetings of Shareholders......................................... 14
10.2 Voting........................................................... 15
10.3 Notice of Meeting................................................ 15
10.4 Quorum and Required Vote......................................... 15
10.5 Proxies, etc..................................................... 15
10.6 Reports.......................................................... 16
10.7 Shareholder Action by Written Consent............................ 16
10.8 Record Dates..................................................... 16
10.9 Additional Provisions............................................ 17
ARTICLE XI
DURATION; TERMINATION OF TRUST; AMENDMENT; MERGERS, ETC
11.1 Duration......................................................... 17
11.2 Termination...................................................... 17
11.3 Amendment Procedure.............................................. 18
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11.4 Merger, Consolidation and Sale of Assets......................... 18
11.5 Subsidiaries..................................................... 18
11.6 Conversion....................................................... 19
11.7 Certain Transactions............................................. 19
ARTICLE XII
MISCELLANEOUS
12.1 Filing........................................................... 20
12.2 Resident Agent................................................... 20
12.3 Governing Law.................................................... 21
12.4 Counterparts..................................................... 21
12.5 Reliance by Third Parties........................................ 21
12.6 Provisions in Conflict with Law or Regulation.................... 21
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FEDERATED COVERED CALL TREASURY FUND
AGREEMENT AND DECLARATION OF TRUST
THIS AGREEMENT AND DECLARATION OF TRUST made as of the [___] day of
December 2005, by the Trustees hereunder, and by the holders of shares of
beneficial interest issued hereunder as hereinafter provided.
WHEREAS, the Trustees desire to create a statutory trust pursuant to the
Delaware Act to carry on business of an investment company;
WHEREAS, this Trust is authorized to issue an unlimited number of its
shares of beneficial interest all in accordance with the provisions hereinafter
set forth;
WHEREAS, the Trustees have agreed to manage all property coming into their
hands as Trustees of a Delaware statutory trust in accordance with the
provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby direct that the Certificate of Trust
be filed with the Office of the Secretary of the State of Delaware and do hereby
declare that they will hold all cash, securities, and other assets which they
may from time to time acquire in any manner as Trustees hereunder IN TRUST to
manage and dispose of the same upon the following terms and conditions for the
benefit of the holders from time to time of shares of beneficial interest in
this Trust as hereinafter set forth.
ARTICLE I
NAME AND DEFINITIONS
1.1 NAME. This Trust shall be known as the "Federated Covered Call
Treasury Fund" and the Trustees shall conduct the business of the Trust under
that name, or any other name or names as they may from time to time determine.
However, should the Trustees determine that the use of the name of the Trust is
not advisable, they may select such other name for the Trust as they deem proper
and the Trust may hold its property and conduct its activities under such other
name. Any name change shall become effective upon the execution by a majority of
the then Trustees of an instrument setting forth the new name and the filing of
a certificate of amendment pursuant to Section 3810(b) of the Delaware Act. Any
such instrument shall not require the approval of the Shareholders, but shall
have the status of an amendment to this Declaration of Trust. The Trust shall
constitute a Delaware statutory trust in accordance with the Delaware Act and
this Declaration of Trust shall constitute the governing instrument of the
Trust.
1.2 DEFINITIONS. As used in this Declaration, the following terms shall
have the following meanings:
"1940 Act" shall mean the Investment Company Act of 1940 and the
rules and regulations thereunder and exemptions granted therefrom, all as
adopted or amended from time to time.
"Affiliated Person" shall have the meaning given to it in Section
2(a)(3) of the 1940 Act when used with reference to a specified person.
"Assignment" shall have the meaning given to it in Section 2(a)(4)
of the 1940 Act.
"By-Laws" shall mean the By-Laws of the Trust as amended from time
to time by the Trustees, which By-Laws are expressly herein incorporated
by reference as part of the "governing instrument" within the meaning of
the DBTA.
"Certificate of Trust" means the certificate of trust as amended
from time to time, filed by the Trustees in the Office of the Sectary of
the State of the State of Delaware in accordance with the Delaware Act.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder.
"Commission" shall mean the Securities and Exchange Commission.
"Covered Person" means every person who is, or has been, a trustee
or an officer or employee of the Trust.
"Declaration" shall mean this Agreement and Declaration of Trust, as
amended, supplemented or amended and restated from time to time.
"DBTA" or the "Delaware Act" shall mean Chapter 38 of Title 12 of
the Delaware Code, as amended from time to time.
"Delaware General Corporation Law" means the Delaware General
Corporation Law, 8 Del. C. xx.xx. 100, ET. SEQ., as amended from time to
time.
"Fundamental Policies" shall mean the investment policies and
restrictions as set forth from time to time in any Prospectus or contained
in any current Registration Statement of the Trust filed with the
Commission or as otherwise adopted by the Trustees and the Shareholders in
accordance with the requirements of the 1940 Act and designated as
fundamental policies therein as they may be amended from time to time in
accordance with the requirements of the 1940 Act.
"Interested Person" shall have the meaning given to it in Section
2(a)(19) of the 1940 Act.
"Investment Adviser" or "Adviser" shall mean a party furnishing
services to the Trust pursuant to any contract described in Section 4.1
hereof.
"Majority Shareholder Vote" shall mean a vote of "a majority of the
outstanding voting securities" (as such term is defined in the 0000 Xxx)
of the Trust with each class and series of Shares voting together as a
single class, except to the extent otherwise required by the 1940 Act or
this Declaration with respect to any one or more classes or series of
Shares, in which case the applicable proportion of such classes or series
of Shares voting as a separate class or series, as case may be, also will
be required.
"Person" shall mean and include individuals, corporations,
partnerships, trusts, limited liability companies, associations, joint
ventures, estates and other entities, whether or not legal entities, and
governments and agencies and political subdivisions thereof, whether
domestic or foreign.
"Principal Underwriter" shall have the meaning given to it in
Section 2(a)(29) of the 1940 Act.
"Prospectus" shall mean the Prospectus of the Trust, if any, as in
effect from time to time under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended.
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"Shareholders" shall mean as of any particular time the holders of
record of outstanding Shares of the Trust, at such time.
"Shares" shall mean the transferable units of beneficial interest
into which the beneficial interest in the Trust shall be divided from time
to time and includes fractions of Shares as well as whole Shares. In
addition, Shares also means any preferred shares or preferred units of
beneficial interest which may be issued from time to time, as described
herein. All references to Shares shall be deemed to be Shares of any or
all series or classes as the context may require.
"Trust" shall mean the Delaware statutory trust established under
the DBTA by this Declaration of Trust, as amended from time to time and
the filing of the Certificate of Trust in the Office of the Secretary of
State of the State of Delaware.
"Trust Property" shall mean as of any particular time any and all
property, real or personal, tangible or intangible, which at such time is
owned or held by or for the account of the Trust or the Trustees in such
capacity.
"Trustees" shall mean person or persons who has signed this
Declaration and all other persons who may from time to time be duly
elected or appointed to serve as Trustee in accordance with the provisions
hereof, in each case, so long as such Person shall continue in office in
accordance with the terms hereof, and all other persons who at the time in
question have been duly elected or appointed and have qualified as
trustees in accordance with the provisions hereof and are then in office.
ARTICLE II
TRUSTEES
2.1 NUMBER AND QUALIFICATION. Prior to a public offering of Shares there
may be a sole Trustee. Thereafter, the number of Trustees shall be determined by
a written instrument signed by a majority of the Trustees then in office,
provided that the number of Trustees shall be no less than 3 or more than 25. No
reduction in the number of Trustees shall have the effect of removing any
Trustee from office prior to the expiration of his term unless the Trustee is
specifically removed pursuant to Section 2.3 of this Article II at the time of
decrease. An individual nominated as a Trustee shall be at least 21 years of age
and not older than 80 years of age at the time of nomination and not under legal
disability. Trustees need not own Shares and may succeed themselves in office.
2.2 TERM AND ELECTION. The Board of Trustees shall be divided into three
classes, designated Class I, Class II and Class III. Each class shall consist,
as nearly as may be possible, of one-third of the total number of trustees
constituting the entire Board of Trustees. Within the limits above specified,
the number of the Trustees in each class shall be determined by resolution of
the Board of Trustees. The term of office of the first class shall expire on the
date of the first annual meeting of Shareholders or special meeting in lieu
thereof following the effective date of the Registration Statement relating to
the Shares under the Securities Act. The term of office of the second class
shall expire on the date of the second annual meeting of Shareholders or special
meeting in lieu thereof following the effective date of the Registration
Statement relating to the Shares under the Securities Act. The term of office of
the third class shall expire on the date of the third annual meeting of
Shareholders or special meeting in lieu thereof following the effective date of
the Registration Statement relating to the Shares under the Securities Act. Upon
expiration of the term of office of each class as set forth above, the number of
Trustees in such class, as determined by the Board of Trustees, shall be elected
for a term expiring on the date of the third annual meeting of Shareholders or
special meeting in lieu thereof following such expiration to succeed the
Trustees whose terms of office expire. The Trustees shall be elected at an
annual meeting of the Shareholders or special meeting in lieu thereof called for
that purpose, except as provided in Section 2.4 of this Article, and each
Trustee elected shall hold office until his or her successor shall have been
elected and shall have qualified. The term of office of a Trustee shall
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terminate and a vacancy shall occur in the event of the death, resignation,
removal, bankruptcy, adjudicated incompetence or other incapacity to perform the
duties of the office, or removal, of a Trustee.
2.3 RESIGNATION AND REMOVAL. Any of the Trustees may resign their trust
(without need for prior or subsequent accounting) by an instrument in writing
signed by such Trustee and delivered or mailed to the other Trustees or the
Chairman, if any, the President or the Secretary and such resignation shall be
effective upon such delivery, or at a later date according to the terms of the
instrument. Any of the Trustees may be removed (provided the aggregate number of
Trustees after such removal shall not be less than the minimum number required
by Section 2.1 hereof) [THESE SEEM ONEROUS] for cause only, and not without
cause, and only by action taken by a majority of the remaining Trustees followed
by the holders of at least seventy-five percent (75%) of the Shares then
entitled to vote in an election of such Trustee. Upon the resignation or removal
of a Trustee, each such resigning or removed Trustee shall execute and deliver
such documents as the remaining Trustees shall require for the purpose of
conveying to the Trust or the remaining Trustees any Trust Property held in the
name of such resigning or removed Trustee. Upon the incapacity or death of any
Trustee, such Trustee's legal representative shall execute and deliver on such
Trustee's behalf such documents as the remaining Trustees shall require as
provided in the preceding sentence.
2.4 VACANCIES. Whenever a vacancy in the Board of Trustees shall occur
regardless of the reason for such vacancy, the remaining Trustees may fill such
vacancy by appointing an individual having the qualifications described in this
Article, consistent with the limitations under the 1940 Act, by a written
instrument signed by a majority of the Trustees then in office or may leave such
vacancy unfilled or may reduce the number of Trustees; provided the aggregate
number of Trustees after such reduction shall not be less than the minimum
number required by Section 2.1 hereof; provided, further, that if the
Shareholders of any class or series of Shares are entitled separately to elect
one or more Trustees, a majority of the remaining Trustees or the sole remaining
Trustee elected by that class or series may fill any vacancy among the number of
Trustees elected by that class or series. Any vacancy created by an increase in
Trustees may be filled by the appointment of an individual having the
qualifications described in this Article, consistent with the limitations under
the 1940 Act, made by a written instrument signed by a majority of the Trustees
then in office. No vacancy shall operate to annul this Declaration or to revoke
any existing agency created pursuant to the terms of this Declaration. Whenever
a vacancy in the number of Trustees shall occur, until such vacancy is filled as
provided herein, the Trustees in office, regardless of their number, shall have
all the powers granted to the Trustees and shall discharge all the duties
imposed upon the Trustees by this Declaration. Upon the appointment and/or
election of a successor Trustee, the trust estate shall vest in the new Trustee,
together with the continuing Trustees, without any further act or conveyance,
and he or she shall be deemed a Trustee hereunder.
2.5 MEETINGS. Meetings of the Trustees shall be held from time to time
upon the call of the Chairman, if any, or the President or such other persons as
may be specified in the By-Laws. Regular meetings of the Trustees may be held
without call or notice at a time and place fixed by the By-Laws or by resolution
of the Trustees. Notice of any other meeting shall be given to the Trustees
before the meeting at the time and in the manner specified in the By-Laws, but
may be waived in writing by any Trustee either before or after such meeting. The
attendance of a Trustee at a meeting shall constitute a waiver of notice of such
meeting except where a Trustee attends a meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting has
not been properly called or convened. A quorum for all meetings of the Trustees
shall be one-third, but not less than two, of the Trustees or such greater
number as may be specified in the By-Laws. Unless provided otherwise in this
Declaration and except as required under the 1940 Act, any action of the
Trustees may be taken at a meeting by vote of a majority of the Trustees present
(a quorum being present) or without a meeting by written consent of a majority
of the Trustees.
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Any committee of the Trustees, including an executive committee, if any,
may act with or without a meeting. A quorum for all meetings of any such
committee shall be one-third, but not less than two, of the members thereof.
Unless provided otherwise in this Declaration, any action of any such committee
may be taken at a meeting by vote of a majority of the members present (a quorum
being present) or without a meeting by written consent of all of the members.
With respect to actions of the Trustees and any committee of the Trustees,
Trustees who are Interested Persons in any action to be taken may be counted for
quorum purposes under this Section and shall be entitled to vote to the extent
not prohibited by the 1940 Act.
All or any one or more Trustees may participate in a meeting of the
Trustees or any committee thereof by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other; participation in a meeting pursuant to any such
communications system shall constitute presence in person at such meeting.
2.6 TRUSTEE ACTION BY WRITTEN CONSENT. Except as otherwise limited by the
1940 Act, any action which may be taken by Trustees by vote may be taken without
a meeting if that number of the Trustees, or members of a committee, as the case
may be, required for approval of such action at a meeting of the Trustees or of
such committee at which all members of the Board or such committee are present
consent to the action in writing and the written consents are filed with the
records of the meetings of Trustees. Such consent shall be treated for all
purposes as a vote taken at a meeting of Trustees.
2.7 OFFICERS. The Trustees shall elect a President, a Secretary and a
Treasurer and may elect a Chairman or other officer of the Trust as the Trustees
deemed appropriate who shall serve at the pleasure of the Trustees or until
their successors are elected. The Trustees may elect or appoint or may authorize
the Chairman, if any, or President to appoint such other officers or agents with
such powers as the Trustees may deem to be advisable. A Chairman shall, and the
President, Secretary and Treasurer may, but need not, be a Trustee.
ARTICLE III
POWERS AND DUTIES OF TRUSTEES
3.1 GENERAL. The Trustees in all instances shall act as principals for and
on behalf of the Trust and their acts shall bind the Trust. The business and
affairs of the trust shall be managed by the trustees and they shall have full
power and authority to do any and all acts and to make and execute all contracts
and instruments that they may consider necessary, appropriate or desirable in
connection with the management of the Trust. The Trustees shall have the full
power and authority to adopt such accounting and tax accounting practices as
they consider appropriate for the trust and for any class or series. The
Trustees shall have power to conduct the business of the Trust and carry on its
operations in any and all of its branches and maintain offices both within and
without The State of Delaware, in any and all states of the United States of
America, in the District of Columbia, and in any and all commonwealths,
territories, dependencies, colonies, possessions, agencies, and
instrumentalities of the United States of America and of foreign governments,
and to do all such other things as they deem necessary, appropriate or desirable
in order to promote or implement the interests of the Trust or of any class or
series although such things are not herein specifically mentioned. The Trustees
shall have exclusive and absolute control over the Trust Property and over the
business of the Trust to the same extent as if the Trustees were the sole owners
of the Trust Property and business in their own right, but with such powers of
delegation as may be permitted by this Declaration. The Trustees may perform
such acts as in their sole discretion are proper for conducting the business of
the Trust. The enumeration of any specific power herein shall not be construed
as limiting the aforesaid power. Such powers of the Trustees may be exercised
without order of or resort to any court. Any determination as to what is in the
interest of the Trust made by the Trustees in good faith shall be conclusive. In
construing the provisions of this Declaration of Trust, the presumption shall be
in favor of a grant of power to the Trustees.
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3.2 INVESTMENTS. The Trustees shall have full power and authority, subject
to the Fundamental Policies in effect from time to time with respect to the
Trust to:
(a) manage, conduct, operate and carry on the business of an investment
company, and exercise all the powers necessary and appropriate to the conduct of
such operations;
(b) subscribe for, invest in, reinvest in, purchase or otherwise acquire,
hold, pledge, sell, assign, transfer, exchange, distribute or otherwise deal in
or dispose of any and all sorts of property, tangible or intangible, including
but not limited to securities and investments of any type whatsoever, whether
equity or non-equity, but not limited to, stocks, profit-sharing interests or
participations and all other contracts for or evidences of equity interests,
bonds, debentures, warrants and rights to purchase securities, and interests in
loans, certificates of beneficial interest, bills, notes and all other contracts
for or evidences of indebtedness, money market instruments including bank
certificates of deposit, finance paper, commercial paper, bankers' acceptances
and other obligations, and all other negotiable and non-negotiable securities
and instruments, however named or described, issued by corporations, trusts,
associations or any other Persons, domestic or foreign, or issued or guaranteed
by the United States of America or any agency or instrumentality thereof, by the
government of any foreign country, by any State, territory or possession of the
United States, by any political subdivision or agency or instrumentality of any
state or foreign country, or by any other government or other governmental or
quasi-governmental agency or instrumentality, domestic or foreign; to acquire
and dispose of interests in domestic or foreign loans made by banks and other
financial institutions; to deposit any assets of the Trust in any bank, trust
company or banking institution or retain any such assets in domestic or foreign
cash or currency; to purchase and sell gold and silver bullion, precious or
strategic metals, and coins and currency of all countries; to engage in "when
issued" and delayed delivery transactions; to enter into repurchase agreements,
reverse repurchase agreements and firm commitment agreements; to employ all
types and kinds of hedging techniques and investment management strategies; and
to change the investments of the Trust; and the right to consent and otherwise
act with respect thereto, with power to designate one or more Persons to
exercise any of said rights, powers and privileges in respect of any of said
investments. The Trustees shall not be limited by any law limiting the
investments which may be made by fiduciaries.
(c) To acquire (by purchase, subscription or otherwise), to hold, to trade
in and deal in, to acquire any rights or options to purchase or sell, to sell or
otherwise dispose of, to lend and to pledge any Trust Property or any of the
foregoing securities, instruments or investments; to purchase and sell options
on securities, currency, precious metals and other commodities, indices, futures
contracts and other financial instruments and assets and enter into closing and
other transactions in connection therewith; to enter into all types of
commodities contracts, including without limitation the purchase and sale of
futures contracts on securities, currency, precious metals and other
commodities, indices and other financial instruments and assets; to enter into
forward foreign currency exchange contracts and other foreign exchange and
currency transactions of all types and kinds; to enter into interest rate,
currency and other swap transactions; and to engage in all types and kinds of
hedging and risk management transactions.
(d) To exercise all rights, powers and privileges of ownership or interest
in all securities and other assets included in the Trust Property, including
without limitation the right to vote thereon and otherwise act with respect
thereto; and to do all acts and things for the preservation, protection,
improvement and enhancement in value of all such securities and assets.
(e) To acquire (by purchase, lease or otherwise) and to hold, use,
maintain, lease, develop and dispose of (by sale or otherwise) any type or kind
of property, real or personal, including domestic or foreign currency, and any
right or interest therein.
(f) To borrow money and in this connection issue notes, commercial paper
or other evidence of indebtedness; to secure borrowings by mortgaging, pledging
or otherwise subjecting as security all or any part of the Trust Property; to
endorse, guarantee, or undertake the performance of any obligation or engagement
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of any other Person; to lend all or any part of the Trust Property to other
Persons; and to issue general unsecured or other obligations of the Trust, and
enter into indentures or agreements relating thereto.
(g) To aid, support or assist by further investment or other action any
Person, any obligation of or interest which is included in the Trust Property or
in the affairs of which the Trust has any direct or indirect interest; to do all
acts and things designed to protect, preserve, improve or enhance the value of
such obligation or interest; and to guarantee or become surety on any or all of
the contracts, securities and other obligations of any such Person.
(h) To join other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit any
security with, or transfer any security to, any such committee, depositary or
trustee, and to delegate to them such power and authority with relation to any
security (whether or not so deposited or transferred) as the Trustees shall deem
proper, and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Trustees shall deem
proper.
(i) To carry on any other business in connection with or incidental to any
of the foregoing powers referred to in this Declaration, to do everything
necessary, appropriate or desirable for the accomplishment of any purpose or the
attainment of any object or the furtherance of any power referred to in this
Declaration, either alone or in association with others, and to do every other
act or thing incidental or appurtenant to or arising out of or connected with
such business or purposes, objects or powers.
The foregoing clauses shall be construed both as objects and powers, and
shall not be held to limit or restrict in any manner the general and plenary
powers of the Trustees.
Notwithstanding any other provision herein, the Trustees shall have full
power in their discretion, without any requirement of approval by Shareholders,
to invest part or all of the Trust Property, or to dispose of part or all of the
Trust Property and invest the proceeds of such disposition, in securities issued
by one or more other investment companies registered under the 1940 Act.
3.3 LEGAL TITLE. Legal title to all of the Trust Property shall at all
times be considered to be vested in the Trust, except that the Board of Trustees
shall have the power to cause legal title to any Trust Property to be held by or
in the name of any Person as nominee, on such terms as the Board of Trustees may
determine, in accordance with applicable law. The right, title and interest of
the Trustees in the Trust Property shall vest automatically in each Person who
may hereafter become a Trustee. Upon the resignation, removal or death of a
Trustee, he or she shall automatically cease to have any right, title or
interest in any of the Trust Property, and the right, title and interest of such
Trustee in the Trust Property shall vest automatically in the remaining
Trustees. Such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered.
3.4 ISSUANCE AND REPURCHASE OF SHARES. The Trustees shall have the full
power and authority to issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of, transfer, and otherwise deal in, Shares,
including Shares in fractional denominations, and, subject to the more detailed
provisions set forth in Articles VIII and IX, to apply to any such repurchase,
redemption, retirement, cancellation or acquisition of Shares any funds or
property whether capital or surplus or otherwise. Shares may be sold for cash or
property or other consideration whenever and in such amounts and manner as the
Trustees deem desirable. The Trustees shall have full power to provide for the
distribution of Shares either through one or more principal underwriters or by
the Trust itself, or both.
3.5 BORROW MONEY OR UTILIZE LEVERAGE. Subject to the Fundamental Policies
in effect from time to time with respect to the Trust, the Trustees shall have
the power to borrow money or otherwise obtain credit or utilize leverage to the
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maximum extent permitted by law or regulation as such may be needed from time to
time and to secure the same by mortgaging, pledging or otherwise subjecting as
security the assets of the Trust, including the lending of portfolio securities,
and to endorse, guarantee, or undertake the performance of any obligation,
contract or engagement of any other person, firm, association or corporation.
3.6 DELEGATION; COMMITTEES. The Trustees shall have the power, consistent
with their continuing exclusive authority over the management of the Trust and
the Trust Property, to delegate from time to time to such of their number or to
officers, employees or agents of the Trust the doing of such things and the
execution of such instruments either in the name of the Trust or the names of
the Trustees or otherwise as the Trustees may deem expedient, to at least the
same extent as such delegation is permitted to directors of corporations formed
under the Delaware General Corporation Law and is permitted by the 1940 Act, as
well as any further delegations the Trustees may determine to be desirable,
expedient or necessary in order to effect the purpose hereof. The Trustees may
designate an executive committee which shall have all authority of the entire
Board of Trustees except such committee cannot declare dividends except to the
extent specifically delegated by the Board of Trustees and cannot authorize
removal of a trustee or any merger, consolidation or sale of substantially all
of the assets of the Trust.
3.7 COLLECTION AND PAYMENT. The Trustees shall have full power and
authority to collect all property due to the Trust; to pay all claims, including
taxes, against the Trust Property or the Trust, the Trustees or any officer,
employee or agent of the Trust; to prosecute, defend, compromise or abandon any
claims relating to the Trust Property or the Trust, or the Trustees or any
officer, employee or agent of the Trust; to foreclose any security interest
securing any obligations, by virtue of which any property is owed to the Trust;
and to enter into releases, agreements and other instruments.
3.8 EXPENSES. The Trustees shall have full power and authority to incur
and pay out of the assets or income of the Trust any expenses which in the
opinion of the Trustees are necessary or incidental to carry out any of the
purposes of this Declaration, and the business of the Trust, and to pay
reasonable compensation from the funds of the Trust to themselves as Trustees.
The Trustees shall fix the compensation of all officers, employees and Trustees.
The Trustees may pay themselves such compensation for special services,
including legal, underwriting, syndicating and brokerage services, as they in
good faith may deem reasonable and reimbursement for expenses reasonably
incurred by themselves on behalf of the Trust.
3.9 BY-LAWS. The Trustees shall have the exclusive authority to adopt and
from time to time amend or repeal By-Laws for the conduct of the business of the
Trust not in consistent with this Declaration of Trust. Unless the By-Laws
specifically require that Shareholders authorize or approve the amendment or
repeal of a particular provision of the By-Laws, any provision of the By-Laws
may be amended or repealed by the Trustees without Shareholder authorization or
approval.
3.10 MISCELLANEOUS POWERS. The Trustees shall have the power to: (a)
employ or contract with such Persons as the Trustees may deem desirable for the
transaction of the business of the Trust; (b) enter into joint ventures,
partnerships and any other combinations or associations; (c) purchase, and pay
for entirely out of Trust Property, insurance policies insuring the
Shareholders, Trustees, officers, employees, agents, investment advisors,
distributors, selected dealers or independent contractors of the Trust against
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all claims arising by reason of holding any such position or by reason of any
action taken or omitted by any such Person in such capacity, whether or not
constituting negligence, or whether or not the Trust would have the power to
indemnify such Person against such liability; (d) establish pension,
profit-sharing, share purchase, and other retirement, incentive and benefit
plans for any Trustees, officers, employees and agents of the Trust; (e) make
donations, irrespective of benefit to the Trust, for charitable, religious,
educational, scientific, civic or similar purposes; (f) to the extent permitted
by law, indemnify or reimburse any Person with whom the Trust has dealings,
including without limitation any advisor, administrator, manager, transfer
agent, custodian, distributor or selected dealer, or any other person as the
Trustees may see fit to such extent as the Trustees shall determine; (g)
guarantee indebtedness or contractual obligations of others; (h) determine and
change the fiscal year of the Trust and the method in which its accounts shall
be kept; (i) notwithstanding the Fundamental Policies of the Trust, convert the
Trust to a master- feeder structure; provided, however, the Trust obtains the
approval of shareholders holding at least a majority of the Trust's Shares
present at a meeting of Shareholders at which a quorum is present; (j) adopt a
seal for the Trust but the absence of such seal shall not impair the validity of
any instrument executed on behalf of the Trust and (k) distribute to
Shareholders all or any part of the earnings or profits, surplus (including
paid-in surplus), capital (including paid-in capital) or assets of the Trust,
the amount of such distributions and the manner of payment thereof to be solely
at the discretion of the Trustees.
3.11 FURTHER POWERS. The Trustees shall have the power to conduct the
business of the Trust and carry on its operations in any and all of its branches
and maintain offices both within and without the State of Delaware, in any and
all states of the United States of America, in the District of Columbia, and in
any and all commonwealths, territories, dependencies, colonies, possessions,
agencies or instrumentalities of the United States of America and of foreign
governments, and to do all such other things and execute all such instruments as
they deem necessary, proper or desirable in order to promote the interests of
the Trust although such things are not herein specifically mentioned. Any
determination as to what is in the interests of the Trust made by the Board of
Trustees in good faith shall be conclusive. In construing the provisions of this
Declaration, the presumption shall be in favor of a grant of power to the
Trustees. Neither the Trust nor the Trustees shall be required to obtain any
court order to deal with any of the Trust Property or take any other action
hereunder.
ARTICLE IV
SERVICE CONTRACTS
4.1 ADVISORY AND MANAGEMENT ARRANGEMENTS. Subject to such requirements and
restrictions as may be set forth in the By-Laws and/or the 1940 Act, the Board
of Trustees may, at any time and from time to time, contract for exclusive or
nonexclusive advisory, management and/or administrative services for the Trust
or for any Series with any corporation, trust, association or other
organization, including any Affiliated Person; and any such contract may contain
such other terms as the Board of Trustees may determine, including without
limitation, authority for the Investment Adviser or administrator to determine
from time to time without prior consultation with the Board of Trustees what
securities and other instruments or property shall be purchased or otherwise
acquired, owned, held, invested or reinvested in, sold, exchanged, transferred,
mortgaged, pledged, assigned, negotiated, or otherwise dealt with or disposed
of, and what portion, if any, of the Trust Property shall be held uninvested and
to make changes in the Trust's or a particular Series' investments, or such
other activities as may specifically be delegated to such party.
The Trustees may also authorize the Trust to employ, or authorize the
Investment Adviser to employ, one or more sub-investment advisers from time to
time to perform such of the acts and services of the Investment Adviser and upon
such terms and conditions as may be agreed upon between the Investment Adviser
and such sub-investment adviser and approved by the Trustees.
4.2 DISTRIBUTION ARRANGEMENTS. Subject to compliance with the 1940 Act,
the Board of Trustees may retain underwriters and/or placement agents to sell
Trust Shares. The Board of Trustees may in its discretion from time to time
enter into one or more contracts, providing for the sale of the Shares of the
Trust, whereby the Trust may either agree to sell such Shares to the other party
to the contract or appoint such other party its sales agent for such Shares. In
either case, the contract shall be on such terms and conditions as the Board of
Trustees may in its discretion determine, not inconsistent with the provisions
of this Article IV or the By-Laws; and such contract may also provide for the
repurchase or sale of Shares of the Trust by such other party as principal or as
agent of the Trust and may provide that such other party may enter into selected
dealer agreements with registered securities dealers and brokers and servicing
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and similar agreements with persons who are not registered securities dealers to
further the purposes of the distribution or repurchase of the Shares of the
Trust.
4.3 OTHER ARRANGEMENTS. The Board of Trustees is further empowered, at any
time and from time to time, to contract with any Persons to provide such other
services to the Trust, as the Board of Trustees determines to be in the best
interests of the Trust, including appointing it or them to act as the custodian,
transfer agent, dividend disbursing agent, fund accountant, and/or shareholder
servicing agent for the Trust or one or more of the series or classes of its
Shares.
4.4 PARTIES TO CONTRACTS. The fact that:
(i) any of the Shareholders, Trustees, employees or officers of the
Trust is a shareholder, director, officer, partner, trustee, employee,
manager, Adviser, Principal Underwriter, distributor, or Affiliated Person
or agent of or for any corporation, trust, association, or other
organization, or for any parent or Affiliated Person of any organization
with which an Adviser's, management or administration contract, or
Principal Underwriter's or distributor's contract, or custodian, transfer,
dividend disbursing, fund accounting, shareholder servicing or other type
of service contract may have been or may hereafter be made, or that any
such organization, or any parent or Affiliated Person thereof, is a
Shareholder or has an interest in the Trust, or that
(ii) any corporation, trust, association or other organization with
which an Adviser's, management or administration contract or Principal
Underwriter's or distributor's contract, or custodian, transfer, dividend
disbursing, fund accounting, shareholder servicing or other type of
service contract may have been or may hereafter be made also has an
Adviser's, management or administration contract, or Principal
Underwriter's or distributor's contract, or custodian, transfer, dividend
disbursing, shareholder servicing or other service 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, employee or officer of the Trust from voting upon or
executing the same, or create any liability or accountability to the Trust or
its Shareholders, provided that the establishment of and performance under each
such contract is permissible under the provisions of the 1940 Act.
ARTICLE V
LIMITATIONS OF LIABILITY AND INDEMNIFICATION
5.1 NO PERSONAL LIABILITY OF SHAREHOLDERS, TRUSTEES, ETC. No Shareholder
of the Trust shall be subject in such capacity to any personal liability
whatsoever to any Person in connection with Trust Property or the acts,
obligations or affairs of the Trust. As provided in the DBTA, Shareholders shall
have the same limitation of personal liability as is extended to stockholders of
a private corporation for profit incorporated under the Delaware General
Corporation Law. No Trustee or officer of the Trust shall be subject in such
capacity to any personal liability whatsoever to any Person, save only liability
to the Trust or its Shareholders arising from bad faith, willful misfeasance,
gross negligence or reckless disregard for his duty to such Person; and, subject
to the foregoing exception, all such Persons shall look solely to the Trust
Property for satisfaction of claims of any nature arising in connection with the
affairs of the Trust. If any Shareholder, Trustee or officer, as such, of the
Trust, is made a party to any suit or proceeding to enforce any such liability,
subject to the foregoing exception, he shall not, on account thereof, be held to
any personal liability. Any repeal or modification of this Section 5.1 shall not
adversely affect any right or protection of a Trustee or officer of the Trust
existing at the time of such repeal or modification with respect to acts or
omissions occurring prior to such repeal or modification.
The Trustees may provide that every note, bond, contract, instrument,
certificate or undertaking made or issued by the Trustees or by any officer or
officers shall give notice that a Certificate of Trust in respect of the Trust
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is on file with the Secretary of State of the State of Delaware and may recite
to the effect that the same was executed or made by or on behalf of the Trust or
by them as Trustee or Trustees or as officer or officers, and not individually,
and that the obligations of any instrument made or issued by the Trustees or by
any officer or officers of the Trust are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and property of
the Trust The omission of any statement to such effect from such instrument
shall not operate to bind any Trustee or Trustees or officer or officers or
Shareholder or Shareholders individually.
5.2 MANDATORY INDEMNIFICATION. (a) The Trust hereby agrees to indemnify
each person who at any time serves as a Trustee or officer of the Trust (each
such person being an "indemnitee") against any liabilities and expenses,
including amounts paid in satisfaction of judgments, in compromise or as fines
and penalties, and reasonable counsel fees reasonably incurred by such
indemnitee in connection with the defense or disposition of any action, suit or
other proceeding, whether civil or criminal, before any court or administrative
or investigative body in which he may be or may have been involved as a party or
otherwise or with which he may be or may have been threatened, while acting in
any capacity set forth in this Article V by reason of his having acted in any
such capacity, except with respect to any matter as to which he shall not have
acted in good faith in the reasonable belief that his action was in the best
interest of the Trust or, in the case of any criminal proceeding, as to which he
shall have had reasonable cause to believe that the conduct was unlawful,
provided, however, that no indemnitee shall be indemnified hereunder against any
liability to any person or any expense of such indemnitee arising by reason of
(i) willful misfeasance, (ii) bad faith, (iii) gross negligence, or (iv)
reckless disregard of the duties involved in the conduct of his position (the
conduct referred to in such clauses (i) through (iv) being sometimes referred to
herein as "disabling conduct"). Notwithstanding the foregoing, with respect to
any action, suit or other proceeding voluntarily prosecuted by any indemnitee as
plaintiff, indemnification shall be mandatory only if the prosecution of such
action, suit or other proceeding by such indemnitee (1) was authorized by a
majority of the Trustees or (2) was instituted by the indemnitee to enforce his
or her rights to indemnification hereunder in a case in which the indemnitee is
found to be entitled to such indemnification. The rights to indemnification set
forth in this Declaration shall continue as to a person who has ceased to be a
Trustee or officer of the Trust and shall inure to the benefit of his or her
heirs, executors and personal and legal representatives. No amendment or
restatement of this Declaration or repeal of any of its provisions shall limit
or eliminate any of the benefits provided to any person who at any time is or
was a Trustee or officer of the Trust or otherwise entitled to indemnification
hereunder in respect of any act or omission that occurred prior to such
amendment, restatement or repeal.
(b) Notwithstanding the foregoing, no indemnification shall be made
hereunder unless there has been a determination (i) by a final decision on the
merits by a court or other body of competent jurisdiction before whom the issue
of entitlement to indemnification hereunder was brought that such indemnitee is
entitled to indemnification hereunder or, (ii) in the absence of such a
decision, by (1) a majority vote of a quorum of those Trustees who are neither
"interested persons" of the Trust (as defined in Section 2(a)(19) of the 0000
Xxx) nor parties to the proceeding ("Disinterested Non-Party Trustees"), that
the indemnitee is entitled to indemnification hereunder, or (2) if such quorum
is not obtainable or even if obtainable, if such majority so directs,
independent legal counsel in a written opinion concludes that the indemnitee
should be entitled to indemnification hereunder. All determinations to make
advance payments in connection with the expense of defending any proceeding
shall be authorized and made in accordance with the immediately succeeding
paragraph (c) below.
(c) The Trust shall make advance payments in connection with the expenses
of defending any action with respect to which indemnification might be sought
hereunder if the Trust receives a written affirmation by the indemnitee of the
indemnitee's good faith belief that the standards of conduct necessary for
indemnification have been met and a written undertaking to reimburse the Trust
unless it is subsequently determined that the indemnitee is entitled to such
indemnification and if a majority of the Trustees determine that the applicable
standards of conduct necessary for indemnification appear to have been met. In
addition, at least one of the following conditions must be met: (i) the
indemnitee shall provide adequate security for his undertaking, (ii) the Trust
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shall be insured against losses arising by reason of any lawful advances, or
(iii) a majority of a quorum of the Disinterested Non-Party Trustees, or if a
majority vote of such quorum so direct, independent legal counsel in a written
opinion, shall conclude, based on a review of readily available facts (as
opposed to a full trial-type inquiry), that there is substantial reason to
believe that the indemnitee ultimately will be found entitled to
indemnification.
(d) The rights accruing to any indemnitee under these provisions shall not
exclude any other right which any person may have or hereafter acquire under
this Declaration, the By-Laws of the Trust, any statute, agreement, vote of
stockholders or Trustees who are "disinterested persons" (as defined in Section
2(a)(19) of the 0000 Xxx) or any other right to which he or she may be lawfully
entitled.
(e) Subject to any limitations provided by the 1940 Act and this
Declaration, the Trust shall have the power and authority to indemnify and
provide for the advance payment of expenses to employees, agents and other
Persons providing services to the Trust or serving in any capacity at the
request of the Trust to the full extent corporations organized under the
Delaware General Corporation Law may indemnify or provide for the advance
payment of expenses for such Persons, provided that such indemnification has
been approved by a majority of the Trustees.
5.3 NO BOND REQUIRED OF TRUSTEES. No Trustee shall, as such, be obligated
to give any bond or other security for the performance of any of his duties
hereunder.
5.4 NO DUTY OF INVESTIGATION; NOTICE IN TRUST INSTRUMENTS, ETC. No
purchaser, lender, transfer agent or other person dealing with the Trustees or
with any officer, employee or agent of the Trust shall be bound to make any
inquiry concerning the validity of any transaction purporting to be made by the
Trustees or by said officer, employee or agent or be liable for the application
of money or property paid, loaned, or delivered to or on the order of the
Trustees or of said officer, employee or agent. Every obligation, contract,
undertaking, instrument, certificate, Share, other security of the Trust, and
every other act or thing whatsoever executed in connection with the Trust shall
be conclusively taken to have been executed or done by the executors thereof
only in their capacity as Trustees under this Declaration or in their capacity
as officers, employees or agents of the Trust. The Trustees may maintain
insurance for the protection of the Trust Property, its Shareholders, Trustees,
officers, employees and agents in such amount as the Trustees shall deem
adequate to cover possible tort liability, and such other insurance as the
Trustees in their sole judgment shall deem advisable or is required by the 1940
Act.
5.5 RELIANCE ON EXPERTS, ETC. Each Trustee and officer or employee of the
Trust shall, in the performance of its duties, be fully and completely justified
and protected with regard to any act or any failure to act resulting from
reliance in good faith upon the books of account or other records of the Trust,
upon an opinion of counsel, or upon reports made or advice given to the Trust by
any of the Trust's officers or employees or by any advisor, administrator,
manager, distributor, selected dealer, accountant, appraiser or other expert or
consultant selected with reasonable care by the Trustees, officers or employees
of the Trust, regardless of whether such counsel or expert may also be a
Trustee.
5.6 INSURANCE. To the fullest extent permitted by applicable law, the
officers and Trustees shall be entitled and have the authority to purchase with
Trust Property, insurance for liability and for all expenses reasonably incurred
or paid or expected to be paid by a Trustee or officer in connection with any
claim, action, suit or proceeding in which such Person becomes involved by
virtue of such Person's capacity or former capacity with the Trust, whether or
not the Trust would have the power to indemnify such Person against such
liability under the provisions of this Article.
5.7. DERIVATIVE ACTIONS. Subject to the requirements set forth in Section
3816 of the DBTA, a Shareholder or Shareholders may bring a derivative action on
behalf of the Trust only if the Shareholder or Shareholders first make a
pre-suit demand upon the Board of Trustees to bring the subject action unless an
effort to cause the Board of Trustees to bring such action is excused. A demand
on the Board of Trustees shall only be excused if a majority of the Board of
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Trustees, or a majority of any committee established to consider the merits of
such action, has a material personal financial interest in the action at issue.
A Trustee shall not be deemed to have a material personal financial interest in
an action or otherwise be disqualified from ruling on a Shareholder demand by
virtue of the fact that such Trustee receives remuneration from his service on
the Board of Trustees of the Trust or on the boards of one or more investment
companies with the same or an affiliated investment advisor or underwriter.
ARTICLE VI
SHARES OF BENEFICIAL INTEREST
6.1 BENEFICIAL INTEREST. The interest of the beneficiaries hereunder shall
be divided into an unlimited number of transferable shares of beneficial
interest, par value $.01 per share. All Shares issued in accordance with the
terms hereof, including, without limitation, Shares issued in connection with a
dividend in Shares or a split of Shares, shall be fully paid and nonassessable
when the consideration determined by the Trustees (if any) therefor shall have
been received by the Trust.
The ownership of Shares shall be recorded on the books of the Trust or a
transfer or similar agent. No certificates certifying the ownership of Shares
shall be issued except as the Trustees may otherwise determine from time to
time. The Trustees may make such rules as they consider appropriate for the
issuance of Share certificates, the transfer of Shares and similar matters. The
record books of the Trust as kept by the Trust or any transfer or similar agent,
as the case may be, shall be conclusive as to who are the Shareholders and as to
the number of Shares held from time to time by each Shareholder. The Trustees
may at any time discontinue the issuance of Share certificates and may, by
written notice to each Shareholder, require the surrender of Share certificates
to the Trust for cancellation. Such surrender and cancellation shall not affect
the ownership of Shares in the Trust.
6.2 OTHER SECURITIES. The Trustees may, subject to the Fundamental
Policies and the requirements of the 1940 Act, authorize and issue such other
securities of the Trust as they determine to be necessary, desirable or
appropriate, having such terms, rights, preferences, privileges, limitations and
restrictions as the Trustees see fit, including preferred interests, debt
securities or other senior securities. To the extent that the Trustees authorize
and issue preferred shares of any class or series, they are hereby authorized
and empowered to amend or supplement this Declaration as they deem necessary or
appropriate, including to comply with the requirements of the 1940 Act or
requirements imposed by the rating agencies or other Persons, all without the
approval of Shareholders. Any such supplement or amendment shall be filed as is
necessary. The Trustees are also authorized to take such actions and retain such
persons as they see fit to offer and sell such securities.
6.3 RIGHTS OF SHAREHOLDERS. The Shares shall be personal property giving
only the rights in this Declaration specifically set forth. The ownership of the
Trust Property of every description and the right to conduct any business herein
before described are vested exclusively in the Trustees, and the Shareholders
shall have no interest therein other than the beneficial interest conferred by
their Shares, and they shall have no right to call for any partition or division
of any property, profits, rights or interests of the Trust nor can they be
called upon to share or assume any losses of the Trust or, subject to the right
of the Trustees to charge certain expenses directly to Shareholders, as provided
in the last sentence of Section 3.8, suffer an assessment of any kind by virtue
of their ownership of Shares. The Shares shall not entitle the holder to
preference, preemptive, appraisal, conversion or exchange rights (except as
specified in this Section 6.3, in Section 11.4 or as specified by the Trustees
when creating the Shares, as in preferred shares).
Every Shareholder by virtue of having become a Shareholder shall be held
to have expressly assented and agreed to the terms of this Declaration and the
By-laws and to have become a party hereto and thereto. The death of a
Shareholder during the continuance of the Trust shall not operate to terminate
the same nor entitle the representative of any deceased Shareholder to an
accounting or to take any action in court or elsewhere against the Trust or the
Trustees, but only to the rights of said decedent under this Trust.
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6.4 TRUST ONLY. It is the intention of the Trustees to create only the
relationship of Trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention of the Trustees to create
a general partnership, limited partnership, joint stock association,
corporation, bailment or any form of legal relationship other than a trust.
Nothing in this Declaration shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
6.5 ISSUANCE OF SHARES. The Trustees, in their discretion, may from time
to time without authorization or vote of the Shareholders issue Shares including
preferred shares that may have been established pursuant to Section 6.2, in
addition to the then issued and outstanding Shares and Shares held in the
treasury, to such party or parties and for such amount and type of
consideration, including cash or property, at such time or times, and on such
terms as the Trustees may determine, and may in such manner acquire other assets
(including the acquisition of assets subject to, and in connection with the
assumption of, liabilities) and businesses. The Trustees may from time to time
divide or combine the Shares into a greater or lesser number without thereby
changing the proportionate beneficial interest in such Shares. Issuances and
redemptions of Shares may be made in whole Shares and/or l/l,000ths of a Share
or multiples thereof as the Trustees may determine.
6.6 REGISTER OF SHARES. A register shall be kept at the offices of the
Trust or any transfer agent duly appointed by the Trustees under the direction
of the Trustees which shall contain the names and addresses of the Shareholders
and the number of Shares held by them respectively and a record of all transfers
thereof. Separate registers shall be established and maintained for each class
or series of Shares. Each such register shall be conclusive as to who are the
holders of the Shares of the applicable class or series of Shares and who shall
be entitled to receive dividends or distributions or otherwise to exercise or
enjoy the rights of Shareholders. No Shareholder shall be entitled to receive
payment of any dividend or distribution, nor to have notice given to him as
herein provided, until he has given his address to a transfer agent or such
other officer or agent of the Trustees as shall keep the register for entry
thereon. The Trustees, in their discretion, may authorize the issuance of share
certificates and promulgate appropriate fees therefor and rules and regulations
as to their use.
6.7 TRANSFER AGENT AND REGISTRAR. The Trustees shall have power to employ
a transfer agent or transfer agents, and a registrar or registrars, with respect
to the Shares. The transfer agent or transfer agents may keep the applicable
register and record therein, the original issues and transfers, if any, of the
said Shares. Any such transfer agents and/or registrars shall perform the duties
usually performed by transfer agents and registrars of certificates of stock in
a corporation, as modified by the Trustees.
6.8 TRANSFER OF SHARES. Shares shall be transferable on the records of the
Trust only by the record holder thereof or by its agent thereto duly authorized
in writing, upon delivery to the Trustees or a transfer agent of the Trust of a
duly executed instrument of transfer, together with such evidence of the
genuineness of each such execution and authorization and of other matters as may
reasonably be required. Upon such delivery the transfer shall be recorded on the
applicable register of the Trust. Until such record is made, the Shareholder of
record shall be deemed to be the holder of such Shares for all purposes hereof
and neither the Trustees nor any transfer agent or registrar nor any officer,
employee or agent of the Trust shall be affected by any notice of the proposed
transfer.
Any person becoming entitled to any Shares in consequence of the death,
bankruptcy, or incompetence of any Shareholder, or otherwise by operation of
law, shall be recorded on the applicable register of Shares as the holder of
such Shares upon production of the proper evidence thereof to the Trustees or a
transfer agent of the Trust, but until such record is made, the Shareholder of
record shall be deemed to be the holder of such for all purposes hereof, and
neither the Trustees nor any transfer agent or registrar nor any officer or
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agent of the Trust shall be affected by any notice of such death, bankruptcy or
incompetence, or other operation of law.
6.9 NOTICES. Any and all notices to which any Shareholder hereunder may be
entitled and any and all communications shall be deemed duly served or given if
mailed, postage prepaid, addressed to any Shareholder of record at his last
known address as recorded on the applicable register of the Trust.
ARTICLE VII
CUSTODIANS
7.1 APPOINTMENT AND DUTIES. The Trustees shall at all times employ a
custodian or custodians, meeting the qualifications for custodians for portfolio
securities of investment companies contained in the 1940 Act, as custodian with
respect to the assets of the Trust. Any custodian shall have authority as agent
of the Trust with respect to which it is acting as determined by the custodian
agreement or agreements, but subject to such restrictions, limitations and other
requirements, if any, as may be contained in the By-Laws of the Trust and the
1940 Act:
(1) to hold the securities owned by the Trust and deliver the same
upon written order;
(2) to receive any receipt for any moneys due to the Trust and
deposit the same in its own banking department (if a bank) or elsewhere as
the Trustees may direct;
(3) to disburse such funds upon orders or vouchers;
(4) if authorized by the Trustees, to keep the books and accounts of
the Trust and furnish clerical and accounting services; and
(5) if authorized to do so by the Trustees, to compute the net
income or net asset value of the Trust;
all upon such basis of compensation as may be agreed upon between the Trustees
and the custodian.
The Trustees may also authorize each custodian to employ one or more
sub-custodians from time to time to perform such of the acts and services of the
custodian and upon such terms and conditions, as may be agreed upon between the
custodian and such sub-custodian and approved by the Trustees, provided that in
every case such sub-custodian shall meet the qualifications for custodians
contained in the 1940 Act.
7.2 CENTRAL CERTIFICATE SYSTEM. Subject to such rules, regulations and
orders as the Commission may adopt, the Trustees may direct the custodian to
deposit all or any part of the securities owned by the Trust in a system for the
central handling of securities established by a national securities exchange or
a national securities association registered with the Commission under the
Securities Exchange Act of 1934, or such other Person as may be permitted by the
Commission, or otherwise in accordance with the 1940 Act, pursuant to which
system all securities of any particular class of any issuer deposited within the
system are treated as fungible and may be transferred or pledged by bookkeeping
entry without physical delivery of such securities, provided that all such
deposits shall be subject to withdrawal only upon the order of the Trust.
ARTICLE VIII
REDEMPTION
[DO NOT WANT TO PERMIT TRUST TO REPURCHASE ITS OWN SHARES?]
8.1 REDEMPTIONS. The Shares of the Trust are not redeemable by the
holders.
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8.2 DISCLOSURE OF HOLDING. The holders of Shares or other securities of
the Trust shall upon demand disclose to the Trustees in writing such information
with respect to direct and indirect ownership of Shares or other securities of
the Trust as the Trustees deem necessary to comply with the provisions of the
Code, the 1940 Act or other applicable laws or regulations, or to comply with
the requirements of any other taxing or regulatory authority.
ARTICLE IX
DETERMINATION OF NET ASSET VALUE, NET INCOME AND DISTRIBUTIONS
9.1 NET ASSET VALUE. The net asset value of each outstanding Share of the
Trust shall be determined at such time or times on such days as the Trustees may
determine, in accordance with the 1940 Act. The method of determination of net
asset value shall be determined by the Trustees and shall be as set forth in the
Prospectus or as may otherwise be determined by the Trustees. The power and duty
to make the net asset value calculations may be delegated by the Trustees and
shall be as generally set forth in the Prospectus or as may otherwise be
determined by the Trustees.
9.2 DISTRIBUTIONS TO SHAREHOLDERS. (a) The Trustees shall from time to
time distribute ratably among the Shareholders of any class of Shares, or any
series of any such class, in accordance with the number of outstanding full and
fractional Shares of such class or any series of such class, such proportion of
the net profits, surplus (including paid-in surplus), capital, or assets held by
the Trustees as they may deem proper or as may otherwise be determined in
accordance with this Declaration. Any such distribution may be made in cash or
property (including without limitation any type of obligations of the Trust or
any assets thereof) or Shares of any class or series or any combination thereof,
and the Trustees may distribute ratably among the Shareholders of any class of
shares or series of any such class, in accordance with the number of outstanding
full and fractional Shares of such class or any series of such class, additional
Shares of any class or series in such manner, at such times, and on such terms
as the Trustees may deem proper or as may otherwise be determined in accordance
with this Declaration.
(b) Distributions pursuant to this Section 9.2 may be among the
Shareholders of record of the applicable class or series of Shares at the time
of declaring a distribution or among the Shareholders of record at such later
date as the Trustees shall determine and specify.
(c) The Trustees may always retain from the net profits such amount as
they may deem necessary to pay the debts or expenses of the Trust or to meet
obligations of the Trust, or as they otherwise may deem desirable to use in the
conduct of its affairs or to retain for future requirements or extensions of the
business.
(d) Inasmuch as the computation of net income and gains for Federal income
tax purposes may vary from the computation thereof on the books, the above
provisions shall be interpreted to give the Trustees the power in their
discretion to distribute for any fiscal year as ordinary dividends and as
capital gains distributions, respectively, additional amounts sufficient to
enable the Trust to avoid or reduce liability for taxes.
9.3 POWER TO MODIFY FOREGOING PROCEDURES. Notwithstanding any of the
foregoing provisions of this Article IX, the Trustees may prescribe, in their
absolute discretion except as may be required by the 1940 Act, such other bases
and times for determining the per share asset value of the Trust's Shares or net
income, or the declaration and payment of dividends and distributions as they
may deem necessary or desirable for any reason, including to enable the Trust to
comply with any provision of the 1940 Act, or any securities exchange or
association registered under the Securities Exchange Act of 1934, or any order
of exemption issued by the Commission, all as in effect now or hereafter amended
or modified.
9.4. DIVIDEND REINVESTMENT PLAN. The Trustees may establish a dividend
reinvestment plan for any class or series of Shares providing for the automatic
reinvestment of cash dividends on the Shares of such class or series in
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additional shares of such class or series or of another class or series of
Shares. Unless otherwise determined by the Trustees, all dividends on Shares of
any class or series for which such a dividend reinvestment plan has been
established shall automatically be reinvested under such plan unless the holder
of such shares shall affirmatively elect, in such manner as specified by the
Trust, not to participate in the dividend reinvestment plan.
ARTICLE X
SHAREHOLDERS
10.1 MEETINGS OF SHAREHOLDERS. The Trust shall hold annual meetings of the
Shareholders (provided that the Trust's initial annual meeting of Shareholders
may occur up to one year after the completion of its initial fiscal year). A
special meeting of Shareholders may be called at any time by a majority of the
Trustees or the President and shall be called by any Trustee for any proper
purpose upon written request of Shareholders of the Trust holding in the
aggregate not less than 51% of the outstanding Shares of the Trust or class or
series of Shares having voting rights on the matter, such request specifying the
purpose or purposes for which such meeting is to be called. Any shareholder
meeting, including a Special Meeting, shall be held within or without the State
of Delaware on such day and at such time as the Board of Trustees shall
designate.
10.2 VOTING. Shareholders shall have no power to vote on any matter except
matters on which a vote of Shareholders is required by applicable law, this
Declaration or resolution of the Trustees. Except as otherwise provided herein,
any matter required to be submitted to Shareholders and affecting one or more
classes or series of Shares shall require approval by the required vote of all
the affected classes and series of Shares voting together as a single class;
provided, however, that as to any matter with respect to which a separate vote
of any class or series of Shares is required by the 1940 Act, such requirement
as to a separate vote by that class or series of Shares shall apply in addition
to a vote of all the affected classes and series voting together as a single
class. Shareholders of a particular class or series of Shares shall not be
entitled to vote on any matter that affects only one or more other classes or
series of Shares. There shall be no cumulative voting in the election or removal
of Trustees.
10.3 NOTICE OF MEETING. Notice of all meetings of Shareholders, stating
the time, place and purposes of the meeting, shall be given by the Trustees to
each Shareholder of record entitled to vote thereat at the time and in the
manner specified in the By-Laws. Only the business stated in the notice of the
meeting shall be considered at such meeting. Any adjourned meeting may be held
as adjourned one or more times without further notice not later than 180 days
after the record date.
10.4 QUORUM AND REQUIRED VOTE. (a) Except where a higher quorum is
required by applicable law, the By-Laws or this Declaration, the holders of one
third (33-1/3%) of the Shares entitled to vote on any matter at a meeting
present in person or by proxy shall constitute a quorum at such meeting of the
Shareholders for purposes of conducting business on such matter. The absence
from any meeting, in person or by proxy, of a quorum of Shareholders for action
upon any given matter shall not prevent action at such meeting upon any other
matter or matters which may properly come before the meeting, if there shall be
present thereat, in person or by proxy, a quorum of Shareholders in respect of
such other matters.
(b) Subject to any provision of applicable law or stock exchange rules,
this Declaration or a resolution of the Trustees specifying a greater or a
lesser vote requirement for the transaction of any item of business at any
meeting of Shareholders, (i) in all matters other than the election of Trustees,
the affirmative vote of a majority of votes cast by the Shareholders entitled to
vote on the subject matter at a meeting at which a quorum is present shall be
the act of the Shareholders entitled to vote with respect to such matter, and
(ii) in an election of Trustees, the qualified nominees receiving the highest
numbers of votes cast by the shareholders entitled to vote at a meeting at which
a quorum is present, up to the number of Trustees to be elected at such meeting,
shall be elected.
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10.5 PROXIES, ETC. At any meeting of Shareholders, any holder of Shares
entitled to vote thereat may vote by properly executed proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Secretary, or with such other officer or agent of the Trust as the
Secretary may direct, for verification prior to the time at which such vote
shall be taken. Pursuant to a resolution of a majority of the Trustees, proxies
may be solicited in the name of one or more Trustees or one or more of the
officers or employees of the Trust. No proxy shall be valid after the expiration
of 11 months from the date thereof, unless otherwise provided in the proxy. Only
Shareholders of record shall be entitled to vote. Each full Share shall be
entitled to one vote and fractional Shares shall be entitled to a vote of such
fraction. When any Share is held jointly by several persons, any one of them may
vote at any meeting in person or by proxy in respect of such Share, but if more
than one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Share. A proxy
purporting to be executed by or on behalf of a Shareholder shall be deemed valid
unless challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger. If the holder of any such Share is a
minor or a person of unsound mind, and subject to guardianship or to the legal
control of any other person as regards the charge or management of such Share,
he may vote by his guardian or such other person appointed or having such
control, and such vote may be given in person or by proxy.
10.6 REPORTS. The Trustees shall cause to be prepared at least annually
and more frequently to the extent and in the form required by law, regulation or
any exchange on which Trust Shares are listed a report of operations containing
a balance sheet and statement of income and undistributed income of the Trust
prepared in conformity with generally accepted accounting principles and an
opinion of an independent public accountant on such financial statements. Copies
of such reports shall be mailed to all Shareholders of record within the time
required by the 1940 Act, and in any event within a reasonable period preceding
the meeting of Shareholders. The Trustees shall, in addition, furnish to the
Shareholders at least semi-annually to the extent required by law, interim
reports containing an unaudited balance sheet of the Trust as of the end of such
period and an unaudited statement of income and surplus for the period from the
beginning of the current fiscal year to the end of such period.
10.7 SHAREHOLDER ACTION BY WRITTEN CONSENT. Any action which may be taken
at any meeting of Shareholders may be taken without a meeting and without prior
notice if a consent or consents in writing setting forth the action so taken is
signed by the holders of Shares having not less than the minimum number of votes
that would be necessary to authorize or take that action at a meeting at which
all Shares entitled to vote on that action were present and voted. All such
consents shall be filed with the secretary of the Trust and shall be maintained
in the Trust's records. Any Shareholder giving a written consent or the
Shareholder's proxy-holders or a transferee of the Shares or a personal
representative of the Shareholder or its respective proxy-holder may revoke the
consent by a writing received by the secretary of the Trust before written
consents of the number of Shares required to authorize the proposed action have
been filed with the secretary.
If the consents of all Shareholders entitled to vote have not been
solicited in writing and if the unanimous written consent of all such
Shareholders shall not have been received, the secretary shall give prompt
notice of the action taken without a meeting to such Shareholders. This notice
shall be given in the manner specified in the By-Laws.
10.8 RECORD DATES. For purposes of determining the Shareholders entitled
to notice of any meeting or to vote or entitled to give consent to action
without a meeting, the Board of Trustees may fix in advance a record date which
shall not be more than 120 days nor less than 10 days before the date of any
such meeting.
If the Board of Trustees does not so fix a record date:
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(a) The record date for determining Shareholders entitled to notice of or
to vote at a meeting of Shareholders shall be at the close of business on the
business day before the notice is given or, if notice is waived, at the close of
business on the business day which is five (5) business days before the day on
which the meeting is held.
(b) The record date for determining Shareholders entitled to give consent
to action in writing without a meeting, (i) when no prior action by the Board of
Trustees has been taken, shall be the day on which the first written consent is
given, or (ii) when prior action of the Board of Trustees has been taken, shall
be at the close of business on the day on which the Board of Trustees adopts the
resolution taking such prior action.
For the purpose of determining the Shareholders of any Series or class who
are entitled to receive payment of any dividend or of any other distribution,
the Board of Trustees may from time to time fix a date, which shall be before
the date for the payment of such dividend or such other distribution, as the
record date for determining the Shareholders of such Series or class having the
right to receive such dividend or distribution. Nothing in this Section shall be
construed as precluding the Board of Trustees from setting different record
dates for different Series or classes.
10.9 ADDITIONAL PROVISIONS. The By-Laws may include further provisions for
Shareholders' votes, meetings and related matters.
ARTICLE XI
DURATION; TERMINATION OF TRUST; AMENDMENT; MERGERS, ETC.
11.1 DURATION. Subject to possible termination in accordance with the
provisions of Section 11.2 hereof, the Trust created hereby shall have perpetual
existence. The death, declination, resignation, retirement, removal or
incapacity of the Trustees, or any one of them, shall not operate to terminate
or annul the Trust or to revoke any existing agency or delegation or authority
pursuant to the terms of this Declaration or of the By-Laws.
11.2 TERMINATION. (a) The Trust may be dissolved, after a majority of the
Trustees have approved a resolution therefor, upon approval by not less than 75%
of the Shares of each class or series outstanding and entitled to vote, voting
as separate classes or series, unless such resolution has been approved by 80%
of the Trustees, in which case approval by a Majority Shareholder Vote shall be
required. Upon the dissolution of the Trust:
(i) The Trust shall carry on no business except for the purpose of
winding up its affairs.
(ii) The Trustees shall proceed to wind up the affairs of the Trust
and all of the powers of the Trustees under this Declaration shall
continue until the affairs of the Trust shall have been wound up,
including the power to fulfill or discharge the contracts of the Trust,
collect its assets, sell, convey, assign, exchange, merge where the Trust
is not the survivor, transfer or otherwise dispose of all or any part of
the remaining Trust Property to one or more Persons at public or private
sale for consideration which may consist in whole or in part in cash,
securities or other property of any kind, discharge or pay its
liabilities, and do all other acts appropriate to liquidate its business;
provided that any sale, conveyance, assignment, exchange, merger in which
the Trust is not the survivor, transfer or other disposition of all or
substantially all the Trust Property of the Trust shall require approval
of the principal terms of the transaction and the nature and amount of the
consideration by Shareholders with the same vote as required to open-end
the Trust.
(iii) After paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities and refunding
agreements, as they deem necessary for their protection, the Trustees may
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distribute the remaining Trust Property, in cash or in kind or partly
each, among the Shareholders according to their respective rights.
(b) After the winding up and termination of the Trust and distribution to
the Shareholders as herein provided, a majority of the Trustees shall execute
and lodge among the records of the Trust an instrument in writing setting forth
the fact of such termination and shall execute and file a certificate of
cancellation with the Secretary of State of the State of Delaware. Upon
termination of the Trust, the Trustees shall thereupon be discharged from all
further liabilities and duties hereunder, and the rights and interests of all
Shareholders shall thereupon cease.
11.3 AMENDMENT PROCEDURE. (a) Except as provided in subsection (b) of this
Section 11.3, this Declaration may be amended, after a majority of the Trustees
have approved a resolution therefor, by the affirmative vote of the holders of
not less than a majority of the affected Shares. The Trustees also may amend
this Declaration without any vote of Shareholders of any class of series to
divide the Shares of the Trust into one or more classes or additional classes,
or one or more series of any such class or classes, to change the name of the
Trust or any class or series of Shares, to make any change that does not
adversely affect the relative rights or preferences of any Shareholder, as they
may deem necessary, or to conform this Declaration to the requirements of the
1940 Act or any other applicable federal laws or regulations including pursuant
to Section 6.2 or the requirements of the regulated investment company
provisions of the Code, but the Trustees shall not be liable for failing to do
so.
(b) No amendment may be made to Section 2.1, Section 2.2, Section 2.3,
Section 3.9, Section 5.1, Section 5.2, Section 11.2(a), this Section 11.3,
Section 11.4, Section 11.6 or Section 11.7 of this Declaration and no amendment
may be made to this Declaration which would change any rights with respect to
any Shares of the Trust by reducing the amount payable thereon upon liquidation
of the Trust or by diminishing or eliminating any voting rights pertaining
thereto (except that this provision shall not limit the ability of the Trustees
to authorize, and to cause the Trust to issue, other securities pursuant to
Section 6.2), except after a majority of the Trustees have approved a resolution
therefor, by the affirmative vote of the holders of not less than 75% of the
Shares of each affected class or series outstanding, voting as separate classes
or series, unless such amendment has been approved by 80% of the Trustees, in
which case approval by a Majority Shareholder Vote shall be required. Nothing
contained in this Declaration shall permit the amendment of this Declaration to
impair the exemption from personal liability of the Shareholders, Trustees,
officers, employees and agents of the Trust or to permit assessments upon
Shareholders.
(c) An amendment duly adopted by the requisite vote of the Board of
Trustees and, if required, the Shareholders as aforesaid, shall become effective
at the time of such adoption or at such other time as may be designated by the
Board of Trustees or Shareholders, as the case may be. A certification in
recordable form signed by a majority of the Trustees setting forth an amendment
and reciting that it was duly adopted by the Trustees and, if required, the
Shareholders as aforesaid, or a copy of the Declaration, as amended, in
recordable form, and executed by a majority of the Trustees, shall be conclusive
evidence of such amendment when lodged among the records of the Trust or at such
other time designated by the Board.
Notwithstanding any other provision hereof, until such time as a
Registration Statement under the Securities Act, covering the first public
offering of Shares of the Trust shall have become effective, this Declaration
may be terminated or amended in any respect by the affirmative vote of a
majority of the Trustees or by an instrument signed by a majority of the
Trustees.
11.4 MERGER, CONSOLIDATION AND SALE OF ASSETS. Except as provided in
Section 11.7, the Trust may merge or consolidate with any other corporation,
association, trust or other organization or may sell, lease or exchange all or
substantially all of the Trust Property or the property, including its good
will, upon such terms and conditions and for such consideration when and as
authorized by two- thirds of the Trustees and approved by a Majority Shareholder
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Vote and any such merger, consolidation, sale, lease or exchange shall be
determined for all purposes to have been accomplished under and pursuant to the
statutes of the State of Delaware.
11.5 SUBSIDIARIES. Without approval by Shareholders, the Trustees may
cause to be organized or assist in organizing one or more corporations, trusts,
partnerships, associations or other organizations to take over all of the Trust
Property or to carry on any business in which the Trust shall directly or
indirectly have any interest, and to sell, convey and transfer all or a portion
of the Trust Property to any such corporation, trust, limited liability company,
association or organization in exchange for the shares or securities thereof, or
otherwise, and to lend money to, subscribe for the shares or securities of, and
enter into any contracts with any such corporation, trust, limited liability
company, partnership, association or organization, or any corporation,
partnership, trust, limited liability company, association or organization in
which the Trust holds or is about to acquire shares or any other interests.
11.6 CONVERSION. Notwithstanding any other provisions of this Declaration
or the By-Laws of the Trust, a favorable vote of a majority of the Trustees then
in office followed by the favorable vote of the holders of not less than 75% of
the Shares of each affected class or series outstanding, voting as separate
classes or series, shall be required to approve, adopt or authorize an amendment
to this Declaration that makes the Shares a "redeemable security" as that term
is defined in the 1940 Act, unless such amendment has been approved by 80% of
the Trustees, in which case approval by a Majority Shareholder Vote shall be
required. Upon the adoption of a proposal to convert the Trust from a
"closed-end company" to an "open-end company" as those terms are defined by the
1940 Act and the necessary amendments to this Declaration to permit such a
conversion of the Trust's outstanding Shares entitled to vote, the Trust shall,
upon complying with any requirements of the 1940 Act and state law, become an
"open-end" investment company. Such affirmative vote or consent shall be in
addition to the vote or consent of the holders of the Shares otherwise required
by law, or any agreement between the Trust and any national securities exchange.
11.7 CERTAIN TRANSACTIONS. (a) Notwithstanding any other provision of this
Declaration and subject to the exceptions provided in paragraph (d) of this
Section, the types of transactions described in paragraph (c) of this Section
shall require the affirmative vote or consent of a majority of the Trustees then
in office followed by the affirmative vote of the holders of not less than 75%
of the Shares of each affected class or series outstanding, voting as separate
classes or series, when a Principal Shareholder (as defined in paragraph (b) of
this Section) is a party to the transaction. Such affirmative vote or consent
shall be in addition to the vote or consent of the holders of Shares otherwise
required by law or by the terms of any class or series of preferred stock,
whether now or hereafter authorized, or any agreement between the Trust and any
national securities exchange.
(b) The term "Principal Shareholder" shall mean any corporation, Person or
other entity which is the beneficial owner, directly or indirectly, of 5% or
more of the outstanding Shares of any class or series and shall include any
affiliate or associate, as such terms are defined in clause (ii) below, of a
Principal Shareholder. For the purposes of this Section, in addition to the
Shares which a corporation, Person or other entity beneficially owns directly,
(a) any corporation, Person or other entity shall be deemed to be the beneficial
owner of any Shares (i) which it has the right to acquire pursuant to any
agreement or upon exercise of conversion rights or warrants, or otherwise (but
excluding share options granted by the Trust) or (ii) which are beneficially
owned, directly or indirectly (including Shares deemed owned through application
of clause (i) above), by any other corporation, Person or entity with which it
or its "affiliate" or "associate" (as defined below) has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of Shares, or which is its "affiliate" or "associate" as those terms
are defined in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, and (b) the outstanding Shares shall include
Shares deemed owned through application of clauses (i) and (ii) above but shall
not include any other Shares which may be issuable pursuant to any agreement, or
upon exercise of conversion rights or warrants, or otherwise.
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(c) This Section shall apply to the following transactions:
(i) The merger or consolidation of the Trust or any subsidiary of
the Trust with or into any Principal Shareholder.
(ii) The issuance of any securities of the Trust to any Principal
Shareholder for cash (other than pursuant to any automatic dividend
reinvestment plan).
(iii) The sale, lease or exchange of all or any substantial part of
the assets of the Trust to any Principal Shareholder (except assets having
an aggregate fair market value of less than $1,000,000, aggregating for
the purpose of such computation all assets sold, leased or exchanged in
any series of similar transactions within a twelve-month period.)
(iv) The sale, lease or exchange to the Trust or any subsidiary
thereof, in exchange for securities of the Trust, of any assets of any
Principal Shareholder (except assets having an aggregate fair market value
of less than $1,000,000, aggregating for the purposes of such computation
all assets sold, leased or exchanged in any series of similar transactions
within a twelve-month period).
(d) The provisions of this Section shall not be applicable to (i) any of
the transactions described in paragraph (c) of this Section if 80% of the
Trustees shall by resolution have approved a memorandum of understanding with
such Principal Shareholder with respect to and substantially consistent with
such transaction, in which case no shareholder vote shall be required by this
Section, or (ii) any such transaction with any entity of which a majority of the
outstanding shares of all classes and series of a stock normally entitled to
vote in elections of directors is owned of record or beneficially by the Trust
and its subsidiaries.
(e) The Board of Trustees shall have the power and duty to determine for
the purposes of this Section on the basis of information known to the Trust
whether (i) a corporation, person or entity beneficially owns 5% or more of the
outstanding Shares of any class or series, (ii) a corporation, person or entity
is an "affiliate" or "associate" (as defined above) of another, (iii) the assets
being acquired or leased to or by the Trust or any subsidiary thereof constitute
a substantial part of the assets of the Trust and have an aggregate fair market
value of less than $1,000,000, and (iv) the memorandum of understanding referred
to in paragraph (d) hereof is substantially consistent with the transaction
covered thereby. Any such determination shall be conclusive and binding for all
purposes of this Section.
ARTICLE XII
MISCELLANEOUS
12.1 FILING. (a) This Declaration and any amendment or supplement hereto
shall be filed in such places as may be required or as the Trustees deem
appropriate. Each amendment or supplement shall be accompanied by a certificate
signed and acknowledged by a Trustee stating that such action was duly taken in
a manner provided herein, and shall, upon insertion in the Trust's minute book,
be conclusive evidence of all amendments contained therein. A restated
Declaration, containing the original Declaration and all amendments and
supplements theretofore made, may be executed from time to time by a majority of
the Trustees and shall, upon insertion in the Trust's minute book, be conclusive
evidence of all amendments and supplements contained therein and may thereafter
be referred to in lieu of the original Declaration and the various amendments
and supplements thereto.
(b) The Trustees hereby authorize and direct a Certificate of Trust, in
the form attached hereto as Exhibit A, to be executed and filed with the Office
of the Secretary of State of the State of Delaware in accordance with the
Delaware Statutory Trust Act.
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12.2 RESIDENT AGENT. The Trust shall maintain a resident agent in the
State of Delaware, which agent shall be Corporation Service Company, 0000
Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000. The Trustees may
designate a successor resident agent, provided, however, that such appointment
shall not become effective until written notice thereof is delivered to the
office of the Secretary of the State.
12.3 GOVERNING LAW. This Declaration is executed by the Trustees and
delivered in the State of Delaware and with reference to the laws thereof, and
the rights of all parties and the validity and construction of every provision
hereof shall be subject to and construed according to laws of said State and
reference shall be specifically made to the Delaware General Corporation Law as
to the construction of matters not specifically covered herein or as to which an
ambiguity exists, although such law shall not be viewed as limiting the powers
otherwise granted to the Trustees hereunder and any ambiguity shall be viewed in
favor of such powers.
12.4 COUNTERPARTS. This Declaration may be simultaneously executed in
several counterparts, each of which shall be deemed to be an original, and such
counterparts, together, shall constitute one and the same instrument, which
shall be sufficiently evidenced by any such original counterpart.
12.5 RELIANCE BY THIRD PARTIES. Any certificate executed by an individual
who, according to the records of the Trust, or of any recording office in which
this Declaration may be recorded, appears to be a Trustee hereunder, certifying
to: (a) the number or identity of Trustees or Shareholders, (b) the name of the
Trust, (c) the due authorization of the execution of any instrument or writing,
(d) the form of any vote passed at a meeting of Trustees or Shareholders, (e)
the fact that the number of Trustees or Shareholders present at any meeting or
executing any written instrument satisfies the requirements of this Declaration,
(f) the form of any By-Laws adopted by or the identity of any officers elected
by the Trustees, or (g) the existence of any fact or facts which in any manner
relate to the affairs of the Trust, shall be conclusive evidence as to the
matters so certified in favor of any person dealing with the Trustees and their
successors.
12.6 PROVISIONS IN CONFLICT WITH LAW OR REGULATION. (a) The provisions of
this Declaration are severable, and if the Trustees shall determine, with the
advice of counsel, that any of such provisions is in conflict with the 1940 Act,
the regulated investment company provisions of the Internal Revenue Code or with
other applicable laws and regulations, the conflicting provision shall be deemed
never to have constituted a part of this Declaration; provided, however, that
such determination shall not affect any of the remaining provisions of this
Declaration or render invalid or improper any action taken or omitted prior to
such determination.
(b) If any provision of this Declaration shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of this
Declaration in any jurisdiction.
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