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Exhibit (a)
XXXXXX HIGH INCOME TRUST
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made Amended and Restated this 14th day of
March, 1988, by the Trustees hereunder, and by the holders of shares of
beneficial interest to be issued hereunder as hereinafter provided.
WITNESSETH
WHEREAS, the Trustees hereunder are desirous of forming a trust for the
purposes of carrying on the business of a management investment company; and
WHEREAS, in furtherance of such purposes, the Trustees are acquiring
and may hereafter acquire assets and properties, to hold and manage as trustees
of a Massachusetts voluntary association with transferable shares in accordance
with the provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold all
cash, securities and other assets and properties, which they may from time to
time acquire in any manner as Trustees hereunder IN TRUST to manage and dispose
of the same upon the following terms and conditions for the pro rata benefit of
the holders from time to time of shares in this Trust as hereinafter set forth.
ARTICLE I
Name and Definitions
Name and Registered Agent
Section 1. This Trust shall be known as Xxxxxx High Income Trust and
the Trustees shall conduct the business of the Trust under that name or any
other name as they may from time to time determine. The registered agent for the
Trust in Massachusetts shall be CT Corporation System whose address is 0 Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx or such other person as the Trustees may from time
to time designate.
Definitions
Section 2. Whenever used herein, unless otherwise required by the
context or specifically provided:
(a) The "Trust" refers to the Massachusetts, voluntary
association established by this Agreement and Declaration of Trust, as amended
from time to time, pursuant to Massachusetts General law, Chapter 182;
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(b) "Trustees" refers to the Trustees of the Trust named
herein or elected in accordance with Article IV and then in office:
(c) "Shares" mean the equal proportionate transferable units
of interest into which the beneficial interest in the Trust shall be divided
from time to time and include fractions of Shares as well as whole Shares;
(d) "Shareholder" means a record owner of Shares:
(e) The "1940 Act" refers to the Investment Company Act of
1940 (any successor statute) and the Rules and regulations thereunder, all as
amended from time to time;
(f) The terms "Affiliated Person", "Assignment", "Commission",
"Interested Person", "Principal Underwriter" and "vote of a majority of the
outstanding voting securities" shall have the meanings given them in the 1940
Act;
(g) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust as amended or restated from time to time;
(h) "By-Laws" shall mean the By-Laws of the Trust as amended
from time to time; and
(i) "Net asset value" shall have the meaning set forth in
Section 2 of Article VI hereof.
ARTICLE II
Nature and Purpose
The Trust is a voluntary association (commonly known as a business trust) of the
type referred to in Chapter 182 of the General laws of the Commonwealth of
Massachusetts. The Trust is not intended to be, shall not be deemed to be, and
shall not be treated as, a general or a limited partnership, joint venture,
corporation or joint stock company, nor shall the Trustees or Shareholders or
any of them for any purpose be deemed to be, or be treated in any way whatsoever
as though they were, liable or responsible hereunder as partners or joint
ventures. The purpose of the Trust is to engage in, operate and carry on the
business of a closed-end management investment company or to engage in, operate
and carry on the business or our open-end management investment company, or to
engage in, operate, and carry on the business of an open-end management
investment company under the circumstances provided in Article IX. Section 5, as
provided in Article IX, Section 5 hereof; and to do any and all acts of things
as are necessary, convenient, appropriate, incidental or customary in connection
therewith.
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ARTICLE III
Shares
Division of Beneficial Interest
Section 1. The beneficial interest in the Trust shall at all times be
divided into Shares ($.01 par value), each of which shall represent an equal
proportionate interest with each other Share, none having priority or preference
over another Share, the number of Shares authorized shall be unlimited, and the
Shares so authorized may be represented in part by fractional Shares. The
Trustees may from time to time divide or combine the Shares into a greater or
lesser number without thereby changing the proportionate beneficial interests in
the Trust. All Shares issued hereunder including, without limitation, Shares
issued in connection with a dividend in Shares or a split of Shares, shall be
fully paid and non-assessable.
Ownership of Shares
Section 2. The ownership and transfer of Shares shall be recorded on
the books of the Trust or its transfer or similar agent. 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 of the Trust, as the case may be, shall be
conclusive as to who are the Shareholders of the Trust and as to the number of
Shares held from time to time by each Shareholder.
Investment in the Trust
Section 3. The Trustees may issue Shares of the Trust to such persons
and on such terms and, subject to any requirements of law, for such
consideration, which may consist of cash or tangible or intangible property or a
combination thereof, as they may from time to time authorize.
All consideration received by the Trust for the issue or sale of
Shares, together with all income, earnings, profits, and proceeds thereof,
including any proceeds derived from the sale, exchange or liquidation thereof,
and any funds or payments derived from any reinvestment of such proceeds in
whatever from the same may be, shall irrevocably belong to the Trust for all
purposes, subject only to the rights of creditors, and shall be so handled upon
the books of account of the Trust.
Merger or Consolidation
Section 4. In connection with the acquisition of all or substantially
all the assets or stock of another investment company, investment trust, or of a
company classified as a personal holding company under the Internal Revenue Code
of 1985, the Trustees may issue or cause to be issued Shares and accept in
payment therefor, in lieu of cash, such assets at their market
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value, or such stock at the market value of the assets held by such investment
company or investment trust, either with or without adjustment for contingent
costs or liabilities.
No Preemptive Rights, Etc.
Section 5. Shareholders shall have no preemptive or other right to
receive, purchase or subscribe for any additional Shares or other securities
issued by the Trust. The Shareholders shall have no appraisal rights with
respect to their Shares and, except as otherwise determined by the Trustees in
their sole discretion, shall have no exchange or conversion rights with respect
to their Shares.
Status of Shares and Limitation of Personal Liability
Section 6. Shares shall be deemed to be personal property giving only
the right provided in this instrument. Every Shareholder by virtue of having
become a Shareholder shall be held to have expressly assented and agreed to the
terms of the Declaration of Trust and to have become a party thereto. The death
of a Shareholder during the continuance of the Trust shall not operate to
terminate the same nor entitle the representative of any deceased Shareholder to
an accounting or to take any action in court of elsewhere against the Trust or
the Trustees, by only to the rights of said decedent under this Trust. Ownership
of Shares shall not entitle the Shareholder to any title in order to the whole
or any part of the Trust property or right to call for a partition or division
of the same or for an accounting, nor shall the ownership of Shares constitute
the Shareholders partners. Neither the Trust nor the Trustees, nor any officer,
employee or agent of the Trust shall have any power to bind personally any
Shareholder, nor except as specifically provided herein to call upon any
Shareholder for the payment of any sum of money or assessment whatsoever other
than such as the Shareholder may at any time personally agree to pay.
Shareholder Inspection Rights
Section 7. Any Shareholder or his agent may inspect and copy during
normal business hours any of the following documents of the Trust: By-Laws,
minutes of the proceedings of the Shareholders and annual financial statement of
the Trust, including a statement of net assets and statement of operations. The
foregoing rights of inspection of Shareholders of the Trust are the exclusive
and sole rights of the Shareholders with respect thereto and no Shareholder of
the Trust shall have, as a Shareholder, the right to inspect or copy any of the
books, records or other documents of the Trust except as specifically provided
in this Section 7 of this Article III or except as otherwise determined by the
Trustees.
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ARTICLE IV
The Trustees
Number, Designation, Election, Term, Etc.
Section 1.
(a) Initial Trustee. Upon his execution of this Declaration of
Trust or a counterpart hereof or some other writing in which he accepts such
Trusteeship and agree to the provisions hereof, Xxxxxx X.
Xxxxxxx shall become a Trustee hereof.
(b) Number. The Trustees serving as such, whether named above
or hereafter becoming Trustees, may increase or decrease the number of Trustees
to a number other than the number theretofore determined which number shall not
be less than three nor more than 15 except during the period that the initial
Trustee named above is sole Trustee. No decrease in the number of Trustees shall
have the effect of removing any Trustee from office prior to the expiration of
his term, but the number of Trustees may be decreased in conjunction with the
removal of a Trustee pursuant to subsection (e) of this Section 1.
(c) Term and Election. Each Trustee, whether named above or
hereafter becoming a Trustee, shall serve as a trustee until the next meeting of
Shareholders, if any, called for the purpose of considering the election or
re-election of such Trustee or of a successor to such Trustee, and until the
election and qualification of his successor to such Trustee, and until the
election: and qualification of his successor, if any, elected at such meeting,
or until such Trustee sooner dies, resigns, retires or is removed. Upon the
election and qualification of a new Trustee, the Trust estate shall vest in the
new Trustee (together with the continuing or other new Trustees) without any
further act or conveyance. Prior to any sale or Shares pursuant to any public
offering, the initial Trustee named above shall have the right to appoint other
persons as Trustees each to serve with such initial Trustee as aforesaid until
the first meeting of Shareholders called for the purpose of the election or
re-election of such Trustee or of a successor to such Trustee.
(d) Resignation and Retirement. Any Trustee may resign his
trust or retire as a Trustee, by written instrument signed by him and delivered
to the other Trustees or to the Chairman of the Board, if any, the President or
the Secretary of the Trust, and such resignation or retirement shall take effect
upon such delivery or upon such later date as is specified in such instrument.
(e) Removal. Any Trustee may be removed for cause at any time
by written instrument, signed by at least a majority of the number of Trustees
prior to such removal, specifying the date upon which such removal shall become
effective. Any Trustee may be removed with or without cause (i) by the vote of
the Shareholders entitled to vote more than fifty percent (50%) of the votes
entitled to be cast on the matter voting at any meeting called for such purpose,
or (ii) by a written consent filed with the Secretary of the Trust and executed
by the
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Shareholders entitled to vote more than fifty percent (50%) of the votes
entitled to be cost on the matter.
Whenever ten or more Shareholders of record who have been such for at
least six months preceding the date of application, and who hold in the
aggregate Shares constituting at least one percent of the outstanding Shares of
the Trust, shall apply to the Trustees in writing, stating that they wish to
communicate with other Shareholders with a view to obtaining signatures to a
request for a meeting to consider removal of a Trustee and accompanied by a form
of communication and request that they wish to transmit, the Trustees shall
within five business days after receipt of such application inform such
applicants as to the approximate cost of mailing to the Shareholders of record
the proposed communication and form of request. Upon the written request of such
applicants, accompanied by a tender of the material to be mailed and of the
reasonable expenses of mailing, the Trustees shall, within reasonable
promptness, mail such material to all Shareholders of record at their address as
recorded on the books of the Trust. Notwithstanding the foregoing, the Trustees
may refuse to mail such material on the basis and in accordance with the
procedures set forth in the last two paragraphs of Section 16(c) of the 1940
Act.
(f) Vacancies. Any vacancy or anticipated vacancy resulting
from any reason, including without limitation the death, resignation,
retirement, removal or incapacity of any of the Trustees, or resulting from an
increase in the number of Trustees by the other Trustees, may (but so long as
there are at least three remaining Trustees, need not unless required by the
0000 Xxx) by filled either by a majority of the remaining Trustees, even if less
than a quorum, through the appointment in writing of such other person as such
remaining Trustees in their discretion shall determine or, whenever deemed
appropriate by the remaining Trustees, by the election by the Shareholders, at a
meeting called for such purpose, or a person to fill such vacancy. Upon the
appointment or election and qualification of a new Trustee as aforesaid, the
Trust estate shall best in the new Trustee, together with the continuing
Trustees, without any further act or conveyance, except that any such
appointment or election in anticipation of a vacancy to occur by a sign of
retirement, resignation, or increase in number of Trustees to be effective at a
later date shall become effective only at or after the effective date of said
retirement, resignation, or increase in number of Trustees.
(g) Mandatory Election by Shareholders. Notwithstanding the
foregoing provisions (a) through (f) of this Section 1, the Trustees shall call
a meeting of the Shareholders for the election of none or more Trustees at such
time or times as may be required in order that the provisions of the 1940 Act
may be complied with, and the authority hereinabove provided for the Trustees to
appoint any successor Trustee or Trustees shall be restricted if such
appointment would result in failure of the Trust to comply with any provision of
the 1940 Act.
(h) Effect of Death, Resignation, Etc. The death, resignation,
retirement, removal or incapacity of the Trustees, or any one of them, shall not
operate to annul or terminate the Trust or to revoke or terminate any existing
agency or contract created or entered into pursuant to the terms of this
Declaration or Trust.
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(i) No Accounting. Except under circumstances which would
justify his removal for cause, no person ceasing to be a Trustee as a result of
his death, resignation, retirement, removal or incapacity (nor the estate of any
such person) shall be requited to make an accounting to the Shareholders or
remaining Trustees upon such cessation.
Powers
Section 2. The Trustees, subject only the specific limitations
contained in this Declaration of Trust or otherwise imposed by the 1940 Act or
other applicable law, shall have, without further or other authorization and
free from any power or control of the Shareholders, full, absolute and exclusive
power, control and authority over the Trust assets and the business and affairs
of the Trust to the same extent as if the Trustees were the sole and absolute
owners thereof in their own right and to do all such acts and things as in their
sole judgment and discretion are necessary and incidental to, or desirable for
the carrying out of any of the purposes of the Trust or conducting the business
of the Trust. Any determination made in good faith by the Trustees of the
purposes of the Trust or the existence of any power or authority hereunder shall
be conclusive. In construing the provisions of this Declaration of Trust, there
shall be a presumption in favor of the grant of power and authority to the
Trustees. Without limiting the foregoing, the Trustees may adopt By-Laws not
inconsistent with this Declaration of Trust containing provisions relating the
business of the Trust, the conduct of its affairs, its rights or powers and the
rights or powers of its Shareholders, Trustees, officers, employees and other
agents and may amend and repeal them to the extent that such By-Laws do not
reserve that right to the Shareholders; fill vacancies in their number,
including vacancies resulting from increase in their number, unless a vote of
the Trust's Shareholders is required to fill such vacancies pursuant to the 1940
Act; elect and remove such officers and appoint and terminate such agents as
they consider appropriate; appoint from their own number, and terminate, any one
or more committees consisting of two or more Trustees, including an executive
committee which may, when the Trustees are not in session, exercise some or all
of the powers and authority of the Trustees as the Trustees may determine;
appoint an advisory board, the members of which shall not be Trustees and need
not be Shareholders; employ one or more investment advisers or managers as
provided in Section 6 of this Article IV; employ one or more administrators as
provided in Section 6 of the Article IV; employ one or more custodians of the
assets of the Trust and authorize such custodians to employ subcustodians and to
deposit all or any part of such assets in a system or systems for the central
handling of securities; retain a transfer agent or a Shareholder services agent,
or _____; provide for the distribution of Shares by the Trust, through one or
more principal underwriters or otherwise; set record dates for the determination
of Shareholders with respect to various matters; and in general delegate such
authority as they consider desirable to any officer of the Trust, to any
committee of the Trustees and to any agent or employee of the Trust or to any
such custodian or underwriter.
In furtherance of and not in limitation of the foregoing, the Trustees
shall have power and authority:
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(a) To invest and reinvest in, to buy or otherwise acquire, to
hold, for investment or otherwise, to sell or otherwise dispose of, to lend or
to pledge, to trade in or deal in securities or interests of all kinds, however
evidenced, or obligations of all kinds, however evidenced, or rights, warrants,
or contracts to acquire such securities, interests, or obligations, or any
private or public company, corporation, association, general or limited
partnership, trust or other enterprise or organization, foreign or domestic, or
issued or guaranteed by any national or state government, foreign or domestic,
or their agencies, instrumentalities or subdivisions (including but not limited
to, bonds, debentures, bills, time notes and all other evidences of
indebtedness); negotiable or non-negotiable instruments; any and all futures
contracts; government securities and money market instruments (including but not
limited to, bank certificates of deposit, finance paper, commercial paper,
bankers acceptances, and all kinds of repurchase agreements);
(b) To invest and reinvest in, to buy or otherwise acquire, to
hold, for investment or otherwise, to sell or otherwise dispose of foreign
currencies, and funds and exchanges, and make deposits in banks, savings banks,
trust companies, and savings and loan associations, foreign or domestic;
(c) To acquire (by purchase, lease or otherwise) and to hold,
use, maintain, develop, and dispose of (by sale or otherwise) any property, real
or personal, and any interest therein;
(d) To sell, exchange, lend, pledge, mortgage, hypothecate,
write options on and lease any or all of the assets of the Trust;
(e) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or property; and to execute
and deliver proxies or powers of attorney to such person or persons as the
Trustees shall deem proper, granting to such person or persons such power and
discretion with relation to securities or property as the Trustees shall deem
proper;
(f) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities;
(g) To hold any security or property in a form not indicating
any trust, whether in bearer, unregistered or other negotiable form, or in the
name of the Trustees or of the Trust or in the name of a custodian, subcustodian
or other depository or a nominee or nominees or otherwise;
(h) To consent to or participate in any plan for the
reorganization, consolidation or merger or any corporation or issuer, any
security or property of which is or was held in the Trust; to consent to any
contract, lease, mortgage, purchase or sale of property by such corporation or
issuer, and to pay calls or subscriptions with respect to any security held in
the Trust;
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(i) To join with other security holders in acting, through a
committee, depository, voting trustee or otherwise, and in that connection to
deposit any security with, or transfer any security to, any such committee,
depositary or trustee, and to delegate to them such power and authority with
relation to any security (whether or not so deposited or transferred) as the
Trustees shall deem proper, and to agree to pay, and to pay, such portion of the
expenses and compensation of such committee, depositary or trustee as the
Trustees shall deem proper;
(j) To compromise, arbitrate or otherwise adjust claims in
favor of or against the Trust or any matter in controversy, including but not
limited to claims for taxes;
(k) To enter into joint ventures, general or limited
partnerships any other combinations or associations;
(l) To borrow funds;
(m) To endorse or guarantee the payment of any notes or other
obligations of any person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof; and to mortgage and pledge the
Trust property or any part thereof to secure any of or all such obligations;
(n) To purchase and pay for entirely out of Trust property
such insurance as they may deem necessary or appropriate for the conduct of the
business, including without limitation, insurance policies insuring the assets
of the Trust and payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, investment advisers or managers, principal
underwriters, or independent contractors of the Trust individually against all
claims and liabilities of every nature arising by reason of holding, being or
having held any such office or position, or by reason of any action alleged to
have been taken or omitted by any such person as Shareholder, Trustee, officer,
employee, agent, investment adviser or manager, principal underwriter, or
independent contractor, including any action taken or omitted that may be
determined to constitute negligence, whether or not the Trust would have the
power to indemnify such person against such liability; and
(o) To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of providing such
retirement and other benefits, for any or all of the Trustees, officers,
employees and agents of the Trust.
The Trustees shall not in any way be bound or limited by any present or
future law or custom in regard to investments by trustees of common law trusts.
Except as otherwise provided herein or from time to time in the By-Laws, any
action to be taken by the Trustees may be taken by a majority of the Trustees
present at a meeting of Trustees (if a quorum be present), within or without
Massachusetts, including any meeting held by means of a conference telephone or
other
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communications equipment by means of which all persons participating in the
meeting can communicate with each other simultaneously and participation by such
means shall constitute presence in person at a meeting, or by written consents
of a majority of the Trustees then in office.
Payment of Expenses, Allocation of Liabilities
Section 3. The Trustee are authorized to pay or to cause to be paid out
of the principal income of the Trust, or partly out of principal and partly out
of income, as they deem fair, all expenses, fees, charges, taxes and liabilities
incurred or arising in connection with the Trust, or in connection with the
management thereof, including, but not limited to, the Trustees' compensation
and such expenses and charges for the service of the Trust's officers,
employees, investment adviser or manager, principal underwriter, auditor,
counsel, custodian, transfer agent, shareholder servicing agent, and such other
agents or independent contractors and such other expenses and charges as the
Trustees may deem necessary or proper to incur.
Section 4. The Trustee shall have the power, as frequently as they may
determine, to cause each Shareholder to pay directly, in advance or arrears, for
charges for the Trust's custodian or transfer or Shareholder service or similar
agent, an amount fixed from time to time by the Trustees, by setting off such
charges due from such Shareholder from declared but unpaid dividends owed such
Shareholder and/or by reducing the number of Shares in the account of such
Shareholder by that number of full and/or fractional shares which represents the
outstanding amount of such charges due from such Shareholder.
Ownership of Assets of the Trust
Section 5. Title to all of the assets and of the Trust shall at all
times be considered as vested in the Trustees.
Advisory and/or Management Agreement, Distribution Agreement, Administration
Agreement, Services
Section 6. Subject to a favorable vote of a majority of the outstanding
voting securities of the Trust, the Trustees may, at any time and from time to
time, contract for exclusive or nonexclusive advisory, and/or management
services with a corporation, trust, association or other organization, every
such contract to comply with such requirements and restrictions as may be set
forth in the By-Laws; and any such contract may contain such other terms
interpretive of or in addition to said requirements and restrictions as the
Trustees may determine, including, without limitation, authority to determine
from time to time what investments shall be purchased, held, sold or exchanged
and what portion, if any, of the assets of the Trust shall be held uninvested
and to make changes in the Trust's investments.
The Trustees may also, at any time and from time to time, contract with a
corporation, trust, association or other organization, appointing it exclusive
or nonexclusive distributor or principal underwriter for the Shares and/or
Administrator for the Fund in connection with such services as
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the Trustees deem appropriate, every such contract to comply with such
requirements and restrictions as may be set forth in the By-Laws; and any such
contract may contain such other terms interpretive of or in addition to said
requirements and restrictions as the Trustees may determine.
The fact that:
(a) any of the Shareholders, Trustees or officers of the Trust
is a shareholder, director, officer, partner, trustee, employee,
manager, adviser, principal underwriter, or distributor or agent of or
for any corporation, trust, association, or other organization, or of
or for any parent or affiliate of any organization, with which an
advisory management or administrative or principal underwriter's or
distributor's contract, or transfer, shareholder services or other
agency contract may have been or may hereafter be made, or that any
such organization, or any parent or affiliate thereof, is a Shareholder
or has an interest in the Trust, or that
(b) any corporation, trust, association or other organization
with which an advisory, management or administrative or principal
underwriter's or distributor's contract, or transfer, shareholder
services or other agency contract may have been or may hereafter be
made also has an advisory, management or administrative contract, or
principal underwriter's or distributor's contract, or transfer,
shareholder services or other agency contract with one or more other
corporations, trusts, associations, or other organizations, or has
other businesses or interests
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same or create any liability or accountability to the Trust or its Shareholders.
ARTICLE V
Shareholders Voting Powers and Meetings
Voting Powers
Section 1. The Shareholders shall have the power to vote only: (a) for
the election or removal of Trustees as provided in Article IV, Section 1; (b)
with respect to any investment adviser or manager as provided in Article IV,
Section 6; (c) with respect to any termination or reorganization of the Trust to
the extent and as provided in Article IX, Section 1; (d) with respect to any
amendment of this Declaration of Trust to the extent and as provided in Article
IX, Section 4; (e) with respect to any conversion of the Trust as provided in
Article IX, Section 5; (f) to the same extent as the stockholders of a
Massachusetts business corporation as to whether or not a court action,
proceeding or claim should or should not be brought or maintained derivatively
or as a class action on behalf of the Trust or the Shareholders; and (g) with
respect to such additional matters relating to the Trust as may be required by
law, the 1940 Act, this Declaration of Trust, the By-Laws or any registration of
the Trust with the Securities and
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Exchange Commission (or any successor agency) or any state, or as the Trustees
may consider necessary or desirable.
Each whole Share shall be entitled to one vote as to any matter on
which it is entitled to vote and each fractional Share shall be entitled to a
proportionate fractional vote. There shall be no cumulative voting in the
election of Trustees. Shares may be voted in person or by proxy.
A proxy with respect to Shares held in the name of two or more persons
shall be valid if executed by any one of them unless at or prior to the exercise
of the proxy the Trust receives a specific written notice to the contrary from
any one of them. A proxy purporting to be executed by or on behalf of a
Shareholder shall be deemed valid unless challenged at or prior to its exercise
and the burden of proving invalidity shall resist on the challenger.
Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required by law, this Declaration of Trust
or by the By-Laws to be taken by Shareholders.
Shareholders' Meetings
Section 2. Meetings of Shareholders may be called and held from time to
time for the purpose of taking action upon any matter requiring the vote of
authority of the Shareholders as herein provided or upon any other matter deemed
by the Trustees to be necessary or desirable. Such meetings shall be held at the
principal office of the Trust as set forth in the By-Laws of the Trust, or at
any such other place within the United States as may be designated in the call
thereof, which call shall be made by the Trustees or the President of the Trust.
Meetings of Shareholders may be called by the Trustees or such other person or
persons as may be specified in the By-Laws upon written application by
Shareholders holding at least twenty-five percent (25%) (or ten percent (10%) if
the purpose of the meeting is to determine if a Trustee is to be removed from
office) of the Shares then outstanding requesting a meeting be called for a
purpose requiring action by the Shareholders as provided herein or in the
By-Laws which purpose shall be specified in any such written application.
Shareholders shall be entitled to at least seven days written notice of
any meeting of the Shareholders.
Quorum and Required Vote
Section 3. The presence at a meeting of Shareholders in person or by
proxy of Shareholders entitled to vote at least thirty percent (30%) of all
votes entitled to be cast at the meeting shall be a quorum for the transaction
of business at a Shareholders' meeting. Any lesser number, however, shall be
sufficient for adjournments. Any adjourned session or sessions may be held
within a reasonable time after the date set for the original meeting without the
necessity of further notice.
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Except when a larger vote is required by any provisions of the 1940
Act, this Declaration of Trust or the By-Laws, a majority of the Shares voted on
the matter shall decide such matter and a plurality shall elect a Trustee.
Action of Written Consent
Section 4. Any action taken by Shareholders may be taken without a
meeting if Shareholders entitled to vote more than fifty percent (50%) of the
votes entitled to be cast on the matter consent to the action in writing and
such written consents are filed with the records of the meetings of
Shareholders. Such consent shall be treated for all purposes as a vote taken at
a meeting of Shareholders.
Additional Provisions
Section 5. The By-Laws may include further provisions for Shareholders'
votes and meetings and related matters not inconsistent with the provisions
hereof.
ARTICLE VI
Distributions, Determination of Net Asset Value,
Repurchases, Tenders and Other Share Acquisitions
Distributions
Section 1. The Trustees may in their sole discretion from time to time
distribute to the Shareholders such income and gains accrued or realized, as the
Trustees may determine, after providing for actual and accrued expenses and
liabilities (including such reserves as the Trustees may establish) determined
in accordance with this Declaration of Trust and good accounting practices. The
Trustees shall have full discretion to determine which items shall be treated as
income and which items as capital and their determination shall be binding upon
the Shareholders. Distributions, if any be made, shall be in Shares, in cash or
otherwise and on a date or dates determined by the Trustees. At any time and
from time to time in their discretion, the Trustees may distribute to the
Shareholders as of a record date or dates determined by the Trustees, in Shares,
in cash or otherwise all or part of any gains realized on the sale or
disposition of property of the Trust or otherwise, or all or part of any other
principal of the Trust. Each distribution pursuant to this Section 1 shall be
made ratably according to the number of Shares held by the several Shareholders
on the applicable record date, and provided that no distributions need be made
on Shares purchased pursuant to orders received, or for which payment is made,
after such time or times as the Trustees may determine. Any distribution paid in
Shares will be paid at the net asset value thereof as determined in accordance
with this Declaration of Trust or at such other value as may be specified by the
By-Laws as the Trustees may from time to time determine subject to applicable
laws and regulations then in effect. The Trustees have the power, in their
discretion, to distribute for any year amount sufficient to enable the Trust to
qualify as a "regulated investment company" under the Internal Revenue Code of
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1986 as amended (or any successor thereto) to avoid any liability for federal
income tax in respect of that year.
Determination of Net Asset Value
Section 2. The term "net asset value" of each Share as of any
particular time shall be the quotient obtained by dividing the value, as at such
time, of the net assets of the Trust (i.e., the value of the assets of the Trust
less the liabilities of the Trust, exclusive of liabilities represented by the
Shares of the Trust) by the total number of Shares outstanding at such time, all
determined and computed in accordance with the Trust's current prospectus.
The Trustees, or any officers, of officers or agent of the Trust
designated for the purpose by the Trustees shall determine the net asset value
of the Shares and the Trustees shall fix the time or times as of which the net
asset value of the Shares shall be determined and shall fix the periods during
which any such net asset value shall be effective as to sales, and other
transactions in the shares, except as such times and periods for any such
transaction may be fixed by other provisions of this Declaration of Trust or by
the By-Laws.
Determinations in accordance with this Section 2 made in good faith
shall be binding on all parties concerned.
Repurchases, Tenders and Other Share Acquisitions
Section 3. Shares of the Trust may be reacquired by the Trust through
repurchases in the open market, through tender offers to shareholders under such
conditions as the Trustees deem appropriate, or by other acquisitions of any
nature deemed desirable or in the best interest of the Trust.
ARTICLE VII
Compensation and Limitation of Liability of Compensation
Section 1. The Trustees as such shall be entitled to reasonable
compensation from the Trust if the rate thereof is prescribed by such Trustees.
Nothing herein shall in any way prevent the employment of any Trustee for
advisory, management, legal, accounting, investment banking or other services
and payment for the same by the Trust, it being recognized that such employment
may result in such Trustee being considered an Affiliated Person or an
Interested Person.
Limited of Liability
Section 2. The Trustees shall not be responsible or liable in any event
for any neglect or wrongdoing of any officer, agent, employee, investment
advisor or manager, principal underwriter or custodian, nor shall any Trustee be
responsible for the act or omission of any other Trustee. Nothing in this
Declaration of Trust shall protect any Trustee against any liability
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to which such Trustee would otherwise by subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee.
Every note, bond, contract, instrument, certificate, Share or
undertaking and every other act or thing whatsoever executed or done by or on
behalf of the Trust or the Trustees or any of them in connection with the Trust
shall be conclusively deemed to have been executed or done only in or with
respect to their or his capacity as Trustees or Trustee and neither such
Trustees or Trustee nor the Shareholders shall be personally liable thereon.
Every note, bond, contract, instrument, certificate or undertaking made
or issued by the Trustees or by any officers or officer shall give notice that
this Declaration of Trust is one file with the Secretary of The Commonwealth of
Massachusetts and shall recite that the same was executed or made by or on
behalf of the Trust by them as Trustees or Trustee or as officers or officer and
not individually and that the obligations of such instrument are not binding
upon any of them or the Shareholders individually but are binding only upon the
assets and property of the Trust and may contain such further recital as he or
they may deem appropriate, but the omission thereof shall not operate to bind
any Trustees or Trustee or officers or officer or Shareholders or Shareholder
individually.
All persons extending credit to, contracting with or having any claim
against the Trust shall look only to the assets of the Trust for payment under
such credit, contract or claim; and neither the Shareholders nor the Trustees,
nor any of the Trust's officers, employees or agents, whether past, present or
future, shall be personally liable therefor.
Trustees' Good Faith Action, Expert Advice, No Bond or Surety
Section 3. The exercise by the Trustees of their powers and discretions
hereunder shall be binding upon everyone interested. A Trustee shall be liable
only for his own willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of Trustee, and
for nothing else, and shall not be liable for errors of judgment or mistakes of
fact or law. The Trustees may take advice of counsel or other experts with
respect to the meaning and operation of this Declaration of Trust and their
duties as Trustees hereunder, and shall be under no liability for any act or
omission in accordance with such advice or for failing to follow such advice. In
discharging their duties, the Trustees, when acting in good faith, shall be
entitled to rely upon the books of account of the Trust and upon written reports
made to the Trustees by any officer appointed by them, any independent public
accountant and (with respect to the subject matter of the contract involved) any
officer, partner or responsible employee of any other party to any contract
entered into pursuant to Section 2 of Article IV. The Trustees shall not be
required to give any bond as such, nor any surety if a bond is required.
Liability of Third Persons Dealing with Trustees
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Section 4. No person dealing with the Trustees shall be bound to make
any inquiry concerning the validity of any transaction made or to be made by the
Trustees or to see to the application of any payments made or property
transferred to the Trust or upon its order.
ARTICLE VIII
Indemnification
Subject to the exceptions and limitations contained in this Article,
every person who is, or has been, a Trustee or officer of the Trust (including
persons who serve at the request of the Trust as directors, officers or trustees
of another organization in which the Trust has an interest as a shareholder,
creditor or otherwise) hereinafter referred to as a "Covered Person," shall be
indemnified by the Trust to the fullest extent permitted by law against
liability and against all expenses reasonably incurred or paid by him in
connection with any claim, action, suit or proceeding in which he becomes
involved as a party or otherwise by virtue of his being or having been such a
Trustee, director or officer and against amounts paid or incurred by him in
settlement thereof.
No indemnification shall be provided hereunder to a Covered Person:
(a) against any liability to the Trust or its Shareholders by
reason of a final adjudication by the court or other body before which the
proceeding was brought that he engaged in willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his
office;
(b) with respect to any matter as to which he shall have been
finally adjudicated not to have acted in good faith in the reasonable belief
that his action was in the best interests of the Trust; or
(c) in the event of a settlement or other disposition not
involving a final adjudication (as provided in paragraph (a) or (b) and
resulting in a payment by a Covered Person, unless there has been either a
determination that such Covered Person did not engage in willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of his office by the court or other body approving the settlement or
other disposition or a reasonable determination, based on a review of readily
available facts (as opposed to a full trial-type inquiry) that he did not engage
in such conduct:
(i) by a vote of a majority of the
Disinterested Trustees acting on the
matter (provided that a majority of
the Disinterested Trustees then in
office act on the matter); or
(ii) by written opinion of independent
legal counsel.
The rights of indemnification herein provided may be insured against by
policies maintained by the Trust, shall be severable, shall not affect any other
rights to which any
17
Covered Person may now or thereafter be entitled, continue as a person who has
ceased to be such a covered person and shall insure to the benefit of the heirs,
executors and administrators of such a person. Nothing contained herein shall
affect any rights to indemnification to which Trust personnel other than Covered
Persons may be entitled by contract or otherwise under law.
Expenses of preparation and presentation of a defense to any claim,
action, suit or proceeding subject to a claim for indemnification under this
Article shall be advanced by the Trust prior to final disposition thereof upon
receipt of an undertaking by or on behalf of the recipient to repay such amount
if it is ultimately determined that he is not entitled to indemnification under
this Article, provided that either:
(d) such undertaking is secured by a surety bond or some other
appropriate security or the Trust shall be insured against losses arising out of
any such advances; or
(e) a majority of the Disinterested Trustees acting on the
matter (provided that a majority of the Disinterested Trustees then in office
act on the matter) or independent legal counsel in a written opinion shall
determine, based upon a review of the readily available facts (as opposed to a
full trial-type inquiry), that there is reason to believe that the recipient
ultimately will be found entitled to indemnification.
As used in this Article, a "Disinterested Trustee" is one (a) who is
not an "interested person" of the Trust, as defined in the 1940 Act (including
anyone who has been exempted from being an "interested person" by any rule,
regulation or order of the Commission), and (b) against whom none of such
actions, suits or other proceedings or another action, suit or other proceeding
on the same or similar grounds in then or has been pending.
As used in this Article, the words "claim," "action," "suit" or
"proceeding" shall apply to all claims, actions, suits proceedings (civil,
criminal or other, including appeals), actual or threatened; and the words
"liability" and "expenses" shall include without limitation, attorneys fees,
costs, judgments, amounts paid in settlement, fines penalties and other
liabilities.
In case any Shareholders or former Shareholder shall be held to be
personally liable solely by reason of his or her being or having been a
Shareholder and not because of his or her acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his or her heirs, executors,
administrators or other legal representatives or in the case of a corporation or
other entity, its corporate or other general successor) shall be entitled to be
held harmless from and indemnified against all loss expense arising from such
liability but only out of the assets of the particular series of Shares of which
he or she is or was a Shareholder; provided, however, there shall be no
liability or obligation of the Trust arising hereunder to reimburse any
Shareholder for taxes paid by reason of such Shareholder's ownership of Shares
or for losses suffered by reason of any changes in value of any Trust assets.
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ARTICLE IX
Miscellaneous
Duration, Termination and Reorganization of Trust
Section 1. Unless terminated as provided herein, the Trust shall
continue without limitation of time. The Trust may be terminated at any time by
the Trustees by written notice to the Shareholders without a vote of the
shareholders of the Trust or by the vote of the Shareholders entitled to vote
more than fifty percent (50%) of the votes entitled to be cast on the matter.
Upon termination of the Trust after paying or otherwise providing for
all charges, taxes, expenses and liabilities, whether due or accrued or
anticipated, the Trust shall in accordance with such procedures as the Trustees
consider appropriate reduce the remaining assets of the Trust to distributable
form in cash or other securities, or any combination thereof, and distribute the
proceeds to the Shareholders of the series involved, ratably according to the
number of Shares of the Trust held by the several Shareholders of the Trust on
the date of termination.
At any time by the affirmative vote of the Shareholders of the Trust
entitled to vote more than fifty percent (50%) of the votes entitled to be cast
on the matter, the Trustees may sell, convey and transfer the assets of the
Trust, to another trust, partnership, association or corporation organized under
the laws of any state of the United States in exchange for cash, shares or other
securities with such transfer being made subject to, or with the assumption by
the transferee of, the liabilities belonging to the Trust. Following such
transfer, the Trustees shall distribute such cash, shares or other securities
among the Shareholders of the Trust and if all of the assets of the Trust have
been so distributed, the Trust shall be terminated.
Filing of Copies, References, Headings
Section 2. The original or a copy of this instrument and of each
amendment hereto shall be kept at the office of the Trust where it may be
inspected by any Shareholder. A copy of this instrument and of each amendment
hereto shall be filed by the Trust with the Secretary of The Commonwealth of
Massachusetts and with the Boston City Clerk, as well as any other governmental
office where such filing may from time to time be required. Anyone dealing with
the Trust may rely on a certificate by an officer of the Trust as to whether or
not any such amendments have been made and as to any matters in connection with
the Trust hereunder; and, with the same effect as if it were the original, may
rely on a copy certified by an officer of the Trust to be a copy of this
instrument or of any such amendments. In this instrument and in any such
amendment, references to this instrument, and all expressions like "herein," and
"hereof," and "hereunder," shall be deemed to refer to this instrument as
amended from time to time. Headings are placed herein for convenience of
reference only and shall not be taken as a part hereof or control or affect the
meaning, construction or effect of this instrument. The instrument may be
executed in any number of counterparts each of which shall be deemed an
original.
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Applicable Laws
Section 3. This Declaration of Trust is made in The Commonwealth of
Massachusetts and it is created under and is to be governed by and construed and
administered according to the laws of said Commonwealth. The Trust shall be of
the type commonly called a Massachusetts business trust, and without limiting
the provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a trust.
Amendments
Section 4. This Declaration of Trust may be amended at any time by an
instrument in writing signed by a majority of the then Trustees when authorized
so to do by vote of Shareholders holding more than fifty percent (50%) of the
Shares entitled to vote. Amendments having the purpose of changing the name of
the Trust or any series or of supplying any omission, curing any ambiguity or
curing, correcting or supplementing any provision which is defective or
inconsistent with the 1940 Act or with the requirements of Internal Revenue Code
of 1986 and the regulations thereunder for the Trust's obtaining the most
favorable treatment thereunder available for the Trust's obtaining the most
favorable treatment thereunder available to regulated investment companies shall
not require authorization by Shareholder vote.
Conversion
Section 5. The Trust may be converted at any time from a "closed-end
company" to an "open-end company" as those terms are defined in Section 5(a)(2)
and 5(a)(1), respectively, of the 1940 Act as in effect on March 14, 1988, upon
the approval of such a proposal, together with the necessary amendments to the
Declaration of Trust to permit such a conversion, by the holders of a majority
of the Trust's outstanding Shares entitled to vote, and in each fiscal year
thereafter, if Shares of the Trust have traded on the principal securities
exchange where listed at an average discount from net asset value of more than
ten percent (10%), determined on the basis of the discount as of the end of the
last trading day in each week during the period of twelve (12) calendar weeks
preceding the beginning of each such year, the Trustees will submit to the
Shareholders at the next succeeding meeting, or within six months thereafter if
sooner, a proposal to convert the Trust from a "closed-end company" to an
"open-end company" as those terms are defined above, together with the necessary
amendments to this proposal and related amendments by the Fund's outstanding
shares entitled to vote, the Fund 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.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal
for himself and his assigns, as of the day and year first above written.
/s/ XXXXXX X. XXXXXXX
Xxxxxx X. Xxxxxxx, Trustee
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STATE OF ILLINOIS
County of Xxxx
Then personally appeared the above-named Xxxxxx X. Xxxxxxx who
acknowledged the foregoing instrument to be his free act and deed, before me
this 14th day of March 1988.
/s/
Notary Public
My Commission Expires:_________
