EXHIBIT 4.
PORTIONS OF AMENDED AND RESTATED AGREEMENT
AND DECLARATION OF TRUST
RELATING TO SHAREHOLDERS' RIGHTS
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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, without par value, each of which shall represent an
equal proportionate interest in the Trust with each other Share, none
having priority or preference over another. The number of Shares
authorized shall be unlimited. 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.
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No Preemptive Rights
Section 4. Shareholders shall have no preemptive or other right to
subscribe to any additional Shares or other securities issued by the
Trust.
Status of Shares and Limitation of Personal Liability
Section 5. Shares shall be deemed to be personal property giving only
the rights provided in this instrument. Every Shareholder by virtue of
having become a Shareholder shall be held to have expressly assented and
agreed to the terms hereof and to have become a party hereto. The death
of a shareholder during the continuance of the Trust shall not operate
to terminate the same nor entitle the representative of any deceased
Shareholder to an accounting or to take any action in court or elsewhere
against the Trust or the Trustees, but only to the rights of said
decedent under this Trust. Ownership of Shares shall not entitle the
Shareholder to any title in or to the whole or any part of the Trust
property or right to call for a partition or division of the same or for
an accounting, nor shall the ownership of shares constitute the
Shareholders partners. Neither the Trust nor the Trustees, nor any
officer, employee or agent of the Trust shall have any power to bind
personally any Shareholder, nor except as specifically provided herein
to call upon any Shareholder for the payment of any sum of money or
assessment whatsoever other than such as the Shareholder may at any time
personally agree to pay.
ARTICLE IV
The Trustees
Election
Section 1. In each year beginning in 1988, at the annual meeting of
Shareholders or at any special meeting held in lieu thereof, or at any
special meeting held before 1988, the Shareholders shall fix the number
of and elect a Board of not less than three Trustees, each of whom shall
serve until the next annual meeting or special meeting in lieu thereof
and until the election and qualification of his or her successor, or
until he or she sooner dies, resigns or is removed. The initial
Trustees, each of whom shall serve until the first meeting of
Shareholders at which Trustees are elected and until his or her
successor is elected and qualified, or until he or she sooner dies,
resigns or is removed shall be Xxxxxx Xxxxxx and Xxxx X'Xxxxx and such
other persons as the Trustee or Trustees then in office shall, prior to
any sale of Shares pursuant to public offering, appoint.
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Advisory, Management and Distribution
Section 6. Subject to a favorable Majority Shareholder Vote, the
Trustees may, at any time and from time to time, contract for exclusive
or nonexclusive advisory and/or management services with any
corporation, trust, association or other organization (the "Manager"),
every such contract to comply with such requirements and restrictions as
may be set forth in the Bylaws; 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 the Manager or any other corporation, trust,
association or other organization, appointing it exclusive or
nonexclusive distributor or principal underwriter for the Shares, every
such contract to comply with such requirements and restrictions as may
be set forth in the Bylaws; 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:
(i) 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, with which an
advisory or management contract, or principal underwriter's or
distributor's contract, or transfer, Shareholder servicing or other
agency contract may have been or may hereafter be made, or that any such
organization, or any parent or affiliate thereof, is a Shareholder or
has an interest in the Trust, or that
(ii) any corporation, trust, association or other organization with
which an advisory or management contract or principal underwriter's or
distributor's contract, or transfer, Shareholder servicing or other
agency contract may have been or may hereafter be made also has an
advisory or management contract, or transfer, Shareholder servicing or
other agency contract with one or more other corporation, trusts,
associations, or other organizations, or has other business or interests
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or
executing the same or create any liability or accountability to the
Trust or its Shareholders.
ARTICLE V
Shareholders' Voting Powers and Meetings
Voting Powers
Section 1. The Shareholders shall have power to vote only (i) for the
election of Trustees as provided in Article IV, Section 1, (ii) with
respect to any Manager as provided in Article IV, Section 6, (iii) with
respect to any termination of this Trust to the extent and as provided
in Article IX, Section 4, (iv) with respect to any merger, consolidation
or sale of assets of the Trust to the extent and as provided in Article
IX, Section 5, (v) with respect to any conversion of the Trust as
provided in Article IX, Section 6, (vi) with respect to any amendment of
this Declaration of Trust to the extent and as provided in Article IX,
Section 9, (vii) to the same extent as the stockholders of a
Massachusetts business corporation as to whether or not 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 (viii) with respect to such additional matters
relating to the Trust as may be required by this Declaration of Trust,
the Bylaws or any registration of the Trust with the 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 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 rest on the challenger. Until Shares
are issued, the Trustees may exercise all rights of Shareholders and may
take any action required by law, this Declaration of Trust or Bylaws to
be taken by Shareholders.
Voting Power and Meetings
Section 2. There shall be an annual meeting of the Shareholders on the
date fixed in the Bylaws at the office of the Trust in Boston,
Massachusetts, or at such other place as may be designated in the call
thereof, which call shall be made by the Trustees. In the event that
such meeting is not held in any year on the date fixed in the Bylaws,
whether the omission be by overnight or otherwise, a subsequent special
meeting may be called by the Trustees and held in lieu of the annual
meeting with the same effect as though held on such date. Special
meetings may also be called by the Trustees from time to time for the
purpose of taking action upon any matter requiring the vote or authority
of the Shareholders as herein provided or upon any other matter deemed
by the Trustees to be necessary or desirable. Written notice of any
meeting of Shareholders shall be given or caused to be given by the
Trustees by mailing such notice at least seven days before such meeting,
postage prepaid, stating the time, place and purpose of the meeting, to
each Shareholder entitled to vote at such meeting at the Shareholder's
address as it appears on the records of the Trust. If the Trustees
shall fail to call or give notice of any meeting of Shareholders for a
period of 30 days after written application by Shareholders holding at
least 25% of the then outstanding shares entitled to vote at such
meeting requesting a meeting to be called for a purpose requiring action
by the Shareholders as provided herein or in the Bylaws, then
Shareholders holding at least 25% of the then outstanding shares
entitled to vote at such meeting may call and give notice of such
meeting, and thereupon the meeting shall be held in the manner provided
for herein in case of call thereof by the Trustees. Notice of a meeting
need not be given to any Shareholder if a written waiver of notice,
executed by him or her before or after the meeting, is filed with the
records of the meeting, or, to any Shareholder who attends the meeting
without protesting prior thereto or at its commencement the lack of
notice to him or her.
Quorum and Required Vote
Section 3. A majority of Shares entitled to vote shall be a quorum for
the transaction of business at a Shareholders' meeting but any lesser
number 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. Except
when a larger vote is required by any provision of this Declaration of
Trust or the Bylaws, a majority of the Shares voted shall decide any
questions and a plurality shall elect a Trustee.
Action by Written Consent
Section 4. Any action taken by Shareholders may be taken without a
meeting if a majority of Shareholders entitled to vote on the matter (or
such larger proportion thereof as shall be required by any express
provision of this Declaration of Trust or the Bylaws) 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 Bylaws may include further provisions of Shareholders'
votes and meeting and related matters.
ARTICLE VI
Distributions
The Trustees may each year, or more frequently if they so determine,
distribute to the Shareholders such amounts as the Trustees may
determine. Any amounts shall be distributed pro rata in proportion to
the number of Shares held by each Shareholder. Such distributions shall
be made in cash or Shares or a combination thereof as determined by the
Trustees. Any such distribution paid in Shares will be paid at the net
asset value thereof as determined in accordance with the Bylaws.
* * *
ARTICLE VIII
Indemnification
* * *
Shareholders
Section 4. In case any Shareholder 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 and 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.
ARTICLE IX
Miscellaneous
Trustees, Shareholders, etc. Not Personally Liable; Notice
Section 1. All persons extending credit to, contracting with or having
any claim against the Trust or a particular series of Shares shall look
only to the assets of the Trust or the assets of that particular series
of Shares 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 therefore. Nothing in this Declaration of Trust shall
protect any Trustee against any liability to which such Trustee would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct
of the office of Trustee.
Every note, bond, contract, instrument, certificate or undertaking made
or issued by the Trustees or by any officer or officers shall give
notice that this Declaration of Trust is on 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 or by them as Trustee or
Trustees or as officer or officers and not individually and that the
obligations of such instrument are not binding upon any of them or the
Shareholders individually but are binding only upon the assets and
property of the Trust, and may contain such further recital as he or she
or they may deem appropriate, but the omission thereof shall not operate
to bind any Trustee or Trustees or officer or officers or Shareholder or
Shareholders individually.
* * *
Duration and Termination of Trust
Section 4. Unless terminated as provided herein, the Trust shall
continue without limitation of time. The Trust may be terminated at any
time by vote of Shareholders holding at least 66 2/3% of the Shares
entitled to vote (provided, however, if such termination is recommended
by two-thirds of the Trustees the vote of a majority of shares entitled
to vote shall be sufficient authorization) or by the Trustees by written
notice to the Shareholders. Upon termination of the Trust, after paying
or otherwise providing for all charges, taxes, expense and liabilities,
whether due or accrued or anticipated, of the Trust or as may be
determined by the Trustees, the Trust shall in accordance with such
procedures as the Trustees consider appropriate reduce the remaining
assets to distributable form in cash or shares or other securities, or
other combination thereof, and distribute the proceeds to the
Shareholders, ratably according to the number of Shares held by the
several Shareholders on the date of termination.
Merger, Consolidation and Sale of Assets
Section 5. 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 its assets, including its good
will, upon such terms and conditions and for such consideration when and
as authorized at any meeting of Shareholders called for the purpose, or
may liquidate or dissolve when and as authorized, by the affirmative
vote of the holders of not less than two-thirds of the Shares entitled
to vote, provided, however, that if such merger, consolidation, sale,
lease or exchange is recommended by two-thirds of the Trustees, the vote
of the holders of a majority of the Shares entitled to vote shall be
sufficient authorization. Nothing contained herein shall be construed
as requiring approval of the Shareholders for any sale of assets in the
ordinary course of business of the Trust.
Conversion
Section 6. The Fund 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
January 1, 1987, 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 two-thirds of the Fund's outstanding
Shares entitled to vote, except that if such proposal is recommended by
two-thirds of the total number of the Trustees then in office or such
proposal is voted upon after the beginning of the fiscal year commencing
in 1992 such proposal may be adopted by a vote of a majority of the
Fund's outstanding Shares entitled to vote. In addition, commencing
with the beginning of the fiscal year commencing in 1992, and in each
fiscal year thereafter, if Shares of the Fund have traded on the
principal securities exchange where listed at an average discount 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 fiscal
year, the Trustees will submit to the shareholders at the next
succeeding annual meeting, or within six months thereafter if the Fund
does not then hold annual meetings, a proposal to convert the Fund from
a "closed-end company" to an "open-end company," as those terms are
defined above, together with the necessary amendments to this
Declaration of Trust to permit such a conversion. Upon the adoption of
such 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.
Filing of Copies, References, Headings
Section 7. 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",
"hereof" and "hereunder" shall be deemed to refer to this instrument as
amended or affected by any such amendments. Headings are placed herein
for convenience of reference only and shall not be taken as part hereof
or control or affect the meaning, construction or effect of this
instrument. This instrument may be executed in any number of
counterparts each of which shall be deemed an original.
* * *
Amendments
Section 9. 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 to do so by vote of Shareholders holding a majority of the
Shares entitled to vote, except that an amendment amending or affecting
the provisions of Section 1 of Article IV, Sections 5 and 6 of this
Article IX or of this sentence shall require the vote of Shareholders
holding two-thirds of the Shares entitled to vote. Amendments having
the purpose of changing the name of the Trust or of supplying any
omission, curing any ambiguity or curing, correcting or supplementing
any defective or inconsistent provision contained herein shall not
require authorization by Shareholder vote.
