AGREEMENT AND DECLARATION OF TRUST
OF
PIONEER MULTI-ASSET INCOME TRUST
(a Delaware Statutory Trust)
Dated as of September 17, 2019
TABLE OF CONTENTS
ARTICLE I - Name and Definitions
Section 1.1 Name..................................................... 1
Section 1.2 Definitions.............................................. 1
ARTICLE II - Nature and Purpose of Trust................................... 3
ARTICLE III -Registered Agent and Registered Office........................ 3
ARTICLE IV - Beneficial Interests; Shareholders
Section 4.1 Shares of Beneficial Interest............................ 4
Section 4.2 Issuance of Shares....................................... 4
Section 4.3 Rights of Shareholders................................... 4
Section 4.4 Ownership and Transfer of Shares......................... 5
Section 4.5 Voting by Shareholders................................... 6
Section 4.6 Meetings................................................. 6
Section 4.7 Quorum and Action........................................ 7
Section 4.8 Action by Written Consent in Lieu of Meeting of
Shareholders............................................. 7
Section 4.9 Classes of Shares........................................ 7
Section 4.10 Disclosure of Shareholder Holdings....................... 9
Section 4.11 Access to Trust Records.................................. 9
Section 4.12 Communications with Shareholders......................... 9
ARTICLE V - The Trustees
Section 5.1 Management of the Trust.................................. 10
Section 5.2 Qualification, Number and Class.......................... 10
Section 5.3 Term and Election........................................ 10
Section 5.4 Resignation, Retirement and Removal...................... 11
Section 5.5 Vacancies................................................ 11
ARTICLE VI - Powers of Trustees
Section 6.1 General Powers........................................... 11
Section 6.2 Certain Specific Powers.................................. 12
Section 6.3 Issuance and Repurchase of Shares........................ 15
Section 6.4 Delegation; Committees................................... 15
Section 6.5 Collection and Payment................................... 15
Section 6.6 Expenses................................................. 15
Section 6.7 Manner of Acting......................................... 15
Section 6.8 Bylaws................................................... 16
Section 6.9 Principal Transactions................................... 16
Section 6.10 Effect of Trustees' Determination........................ 16
ARTICLE VII - Service Providers............................................
Section 7.1 Investment Adviser and Administrators.................... 16
Section 7.2 Underwriter; Transfer Agent; Shareholder Servicing
Agent; Custodian......................................... 16
Section 7.3 Parties to Contract...................................... 17
Section 7.4 Further Authority of Trustees............................ 17
ARTICLE VIII - Distributions; Determination of Net Asset Value
Section 8.1 Distributions............................................ 17
Section 8.2 Determination of Net Asset Value; Valuation of Portfolio
Assets................................................... 18
Section 8.3 Reserves................................................. 18
Section 8.4 Determination by Trustees................................ 18
ARTICLE IX - Limitation of Liability and Indemnification
Section 9.1 No Personal Liability of and Indemnification of
Shareholders............................................. 18
Section 9.2 Limitation of Liability of Trustees and Others........... 19
Section 9.3 Reliance on Experts; Trustees Not Experts; No Bond or
Surety................................................... 20
Section 9.4 Liability of Third Persons Dealing with the Trust or
Trustees................................................. 20
Section 9.5 Indemnification and Advancement of Expenses.............. 20
Section 9.6 Further Indemnification.................................. 21
Section 9.7 Amendments and Modifications............................. 22
Section 9.8 Derivative and Direct Actions............................ 22
ARTICLE X - Duration, Term and Termination; Eligible Tender Offer;
Mergers, Sale of Assets and Other Transactions
Section 10.1 Duration, Term and Termination; Eligible Tender Offer.... 25
Section 10.2 Merger and Consolidation; Sale of Assets;
Reorganization; Certain Transactions..................... 27
Section 10.3 Conversion............................................... 29
Section 10.4 Combination of Classes................................... 29
ARTICLE XI - Amendments; Filings; Copies; Miscellaneous
Section 11.1 Amendments to Declaration and Certificate of Trust....... 30
Section 11.2 Filing of Certificate; Copies of Declaration;
Counterparts; Headings................................... 30
Section 11.3 Trustees May Resolve Ambiguities......................... 31
Section 11.4 Applicable Law; Forum Selection; Jury Waiver............. 31
Section 11.5 Statutory Trust Only..................................... 32
Section 11.6 Provisions in conflict with Law or Regulations........... 32
Section 11.7 Writings................................................. 32
-2-
AGREEMENT AND DECLARATION OF TRUST OF
PIONEER MULTI-ASSET INCOME TRUST
This AGREEMENT AND DECLARATION OF TRUST is made as of this 17th day of
September, 2019 by the Trustees hereunder.
NOW, THEREFORE, all cash, securities and other assets and properties, which
the Trust may from time to time acquire in any manner, will be held by the
Trust and managed upon the following terms and conditions.
ARTICLE I
NAME AND DEFINITIONS
Section 1.1. Name. This Trust shall be known as Pioneer Multi-Asset 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.
Section 1.2. Definitions. Whenever used herein, unless otherwise required by
the context or specifically provided, the following terms have the following
respective meanings:
(a) "Bylaws" means the Bylaws of the Trust referred to in Section 6.8
hereof, as from time to time amended, which Bylaws are expressly incorporated
by reference herein as part of the Trust's "governing instrument" within the
meaning of the Delaware Act (as defined below).
(b) "Certificate of Trust" means the certificate of trust of the Trust, as
filed with the Secretary of State of the State of Delaware in accordance with
the Delaware Act (as defined below), and as such certificate of trust may be
amended or amended and restated from time to time.
(c) "Class" means the one or more classes of Shares (as defined below) of
the Trust as may be established and designated as a Class from time to time by
the Trustees pursuant to Section 4.9 hereof.
(d) "Code" means the Internal Revenue Code of 1986 (or any successor
statute), as amended from time to time, and the rules and regulations
thereunder, as adopted or amended from time to time.
(e) "Commission" shall have the same meaning given to such term in the 1940
Act (as defined below).
(f) "Common Shares" shall mean a class of an unlimited number of common
shares of the Trust, having no par value.
(g) "Complaining Shareholder" shall refer to a Shareholder making a demand
or bringing a claim pursuant to Section 9.8 hereof.
(h) "Declaration" means this Agreement and Declaration of Trust as amended,
supplemented or amended and restated from time to time, which, together with
the Bylaws and any designations of Classes made in accordance with Section 4.9
hereof, shall constitute the Trust's "governing instrument" within the meaning
of the Delaware Act. Reference in this Agreement and Declaration of Trust to
"Declaration," "hereof," "herein," and "hereunder" shall be deemed to refer to
this Declaration rather than exclusively to the article or section in which
such words appear.
(i) "Delaware Act" shall refer to the Delaware Statutory Trust Act, as
amended from time to time.
(j) "He," "Him" and "His" shall include the feminine and neuter, as well as
the masculine, genders.
(k) "Interested Person" shall have the same meaning given to such term in
the 1940 Act (as defined below).
(l) "Majority Shareholder Vote" means the vote of a majority of the
outstanding voting securities as defined in the 1940 Act (as defined below).
(m) "1940 Act" refers to the Investment Company Act of 1940 (and any
successor statute) and the rules thereunder, all as amended from time to time,
as may apply to the Trust, including pursuant to any exemptive, interpretive or
other relief or guidance issued by the Commission or the staff of the
Commission under such Act.
(n) "Outstanding Shares" means those Shares (as defined below) shown from
time to time on the books of the Trust or its transfer agent as then issued and
outstanding, but shall not include Shares which have been redeemed,
repurchased, cancelled or terminated by the Trust.
(o) "Person" means and includes natural persons, corporations, partnerships,
limited partnerships, business trusts, limited liability partnerships,
statutory trusts, limited liability companies, trusts, associations, joint
ventures, estates, nominees and any other entity in its own or any
representative capacity, whether or not legal entities, and governments and
agencies and political subdivisions thereof, in each case whether domestic or
foreign.
(p) "Preferred Shares" shall refer to those shares that may be issued in one
or more series or classes pursuant to Section 4.9 hereof.
(q) "Principal Shareholder" and its "affiliate" or "associate" shall have
the meanings set forth in Section 10.2 hereof.
-2-
(r) "Prospectus" means the prospectus and statement of additional
information with respect to the Trust or one or more Classes thereof as the
context shall require, as contained in the most recent effective registration
statement filed with the Commission with respect to the Trust or one or more
such Classes thereof, as the same may be supplemented or modified from time to
time in accordance with the requirements of the federal securities laws.
(s) "Shareholder" means a record owner of Outstanding Shares.
(t) "Shares" means the units of interest into which the beneficial interest
in the Trust shall be divided from time to time, including the Common Shares
and any Preferred Shares that may be established and designated by the
Trustees, and includes fractions of Shares as well as whole Shares.
(u) "Statement" shall have the meaning set forth in Section 4.9 hereof.
(v) "Trust" refers to the Delaware statutory trust established under the
Delaware Act by this Declaration and the filing of the Certificate of Trust
with the Secretary of State of the State of Delaware.
(w) "Trust Property" means any and all property, real or personal, tangible
or intangible, which is owned or held by or for the account of the Trust.
(x) "Trustees" means, at any time, the person or persons who have signed
this Declaration and all other persons who may from time to time be duly
qualified and serving as Trustees in accordance with the provisions of Article
V hereof, in each case if they shall at that time continue in office in
accordance with the terms hereof, and reference herein to a Trustee or the
Trustees shall refer to such person or persons in his capacity or their
capacities as Trustees hereunder.
ARTICLE II
NATURE AND PURPOSE OF TRUST
The purpose of the Trust is to engage in, operate and carry on the business
of a closed-end management investment company, and to do any and all acts or
things as are necessary, convenient, appropriate, incidental or customary in
connection therewith, both within and without the State of Delaware, and
without limiting the foregoing or the other provisions hereof, the Trust may
exercise all powers conferred by the laws of the State of Delaware upon a
Delaware statutory trust formed pursuant to the Delaware Act.
ARTICLE III
REGISTERED AGENT AND REGISTERED OFFICE
The registered agent and office of the Trust in the State of Delaware are
Delaware Corporation Organizers, Inc., 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000. Unless otherwise required by applicable law, the Trust shall at all
times maintain at least one
-3-
resident agent who shall be either a citizen of the State of Delaware who
resides in such State or a Delaware corporation. The Trustees may change the
registered agent or registered office of the Trust from time to time by making
the appropriate filing or filings with the Secretary of State of the State of
Delaware.
ARTICLE IV
BENEFICIAL INTERESTS; SHAREHOLDERS
Section 4.1. Shares of Beneficial Interest. The beneficial interest in the
Trust shall be divided into such Shares of beneficial interest, of such
Classes, and of such designations and par values (if any) and with such rights,
preferences, privileges, limitations, restrictions and such other relative
terms as shall be determined by the Trustees, from time to time. The number of
Shares is unlimited. The Trustees shall have full power and authority to take
such action with respect to the Shares as the Trustees may deem desirable.
Section 4.2. Issuance of Shares. (a) Shares may be issued from time to time
to such Persons (including, without limitation, any Trustee, officer, or agent
of the Trust or any Person in which a Trustee, officer or agent of the Trust
has an interest) either for cash or for such other consideration (which may be
in any one or more instances a certain specified consideration or certain
specified considerations) and on such terms as the Trustees, from time to time,
may deem advisable, and the Trust may, in connection with an issuance of
Shares, acquire other assets (including the acquisition of assets subject to,
and in connection with, the assumption of liabilities), and all Shares so
issued hereunder, including without limitation Shares issued in connection with
a dividend in Shares or a split or reverse split of Shares, shall be fully paid
and nonassessable. The Trust shall have the right to refuse to issue Shares to
any Person at any time and for any reason or for no reason whatsoever.
(b) The Trust may issue Shares in fractional denominations to the same
extent as its whole Shares, and Shares in fractional denominations shall be
Shares having proportionately to the respective fractions represented thereby
all the rights of whole Shares, including, without limitation, the right to
vote, the right to receive dividends and distributions and the right to
participate upon termination of the Trust.
(c) Any Shares issued by the Trust which have been purchased, redeemed or
otherwise reacquired by the Trust shall be retired automatically and shall have
the status of unissued Shares.
Section 4.3. Rights of Shareholders. The ownership of the Trust Property of
every description and the right to conduct any business herein described is
vested exclusively in the Trust. The Shareholders shall have no right or title
in or to the Trust Property or to call for any partition or division of any
property, profits, rights or interests of the Trust and the Shareholders shall
have no interest therein other than the beneficial interest conferred by their
Shares. For the avoidance of doubt, Shareholders shall have no rights,
privileges, claims or remedies under any contract or agreement entered into by
-4-
the Trust with any service provider or other agent to or contractor with the
Trust, including, without limitation, any third party beneficiary rights,
except as may be expressly provided in any such contract or agreement. The
death, incapacity, dissolution, termination, or bankruptcy of a Shareholder
during the continuance of the Trust shall neither operate to terminate the
Trust nor entitle the representative of any such Shareholder to an accounting
or to take any action in court or elsewhere against the Trust or the Trustees,
but shall entitle such representative only to the rights of said Shareholder
under this Declaration. Neither the Trust nor the Trustees, nor any officer,
employee or agent of the Trust shall have any power to bind personally any
Shareholder, or 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, provided however that any sales loads or charges,
account fees or any other fees or charges not prohibited as charges to
Shareholders under applicable law shall not be deemed to be an assessment or
payment for the purposes of this Declaration. The Shares shall be personal
property giving only the rights specifically set forth in this Declaration. The
holders of Shares shall not, as such holders, have any right to acquire,
purchase or subscribe for any Shares or securities of the Trust that it may
hereafter issue or sell, other than such right, if any, as the Trustees may
determine. The holders of Shares shall not be entitled to exercise the rights
of objecting shareholders and shall have no appraisal rights with respect to
their Shares and, except as otherwise determined by the Trustees from time to
time, shall have no exchange or conversion rights with respect to their Shares.
Every Shareholder, by virtue of purchasing Shares and becoming a Shareholder,
shall be held to have expressly assented and agreed to the terms of this
Declaration, any By-Laws adopted hereunder and any other governing instrument
and shall be bound thereby.
Section 4.4. Ownership and Transfer of Shares. (a) The ownership and
transfer of Shares shall be recorded on the books of the Trust or, if there is
a transfer or similar agent with respect to such Shares, on the books and
records of such transfer or similar agent with respect to such Shares, which
records shall be maintained separately for each Class of the Trust. No
certificates representing the ownership of Shares shall be issued except as the
Trustees may otherwise determine from time to time. The Trustees may make such
rules or impose such restrictions as they consider necessary or appropriate for
the issuance of Share certificates, 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, shall be conclusive as to who are the holders of Shares and
as to the number of Shares held from time to time by each Shareholder. No
Shareholder shall be entitled to receive any payment of a dividend or
distribution, or to have notice given to him as provided herein or in the
Bylaws, until he has provided such information as shall be required to the
Trust or, as applicable, the Trust's transfer or similar agent with respect to
his Shares.
(b) In the event any certificates representing Outstanding Shares are at any
time outstanding, the Trustees may at any time or from time to time determine
that Shares shall no longer be represented by certificates, and in connection
therewith, upon written notice to any Shareholder holding certificates
representing Outstanding Shares, such certificates shall be cancelled, provided
that such cancellation shall not affect the ownership by such Shareholder of
such Shares, and following such cancellation,
-5-
ownership and transfer of such Shares shall be recorded by book entry on the
books of the Trust or its transfer or similar agent.
Section 4.5. Voting by Shareholders. (a) Shareholders shall not have the
power to vote on any matter except: (i) for the election or removal of Trustees
only to the extent and as provided in Article V hereof; (ii) with respect to a
sale of assets or reorganization or similar transaction only to the extent and
as provided in Section 10.2 hereof; (iii) with respect to the conversion of the
Trust to an "open-end company" to the extent and as provided in Section 10.3
hereof; and (iv) with respect to such additional matters relating to the Trust
as may be required by law, this Declaration or as the Trustees may consider and
determine necessary or desirable.
(b) Each whole Share outstanding on the record date established in
accordance with the Bylaws shall entitle the holder thereof to one vote as to
any matter on which the holder is entitled to vote, and each fractional Share
outstanding on the record date established in accordance with the Bylaws shall
be entitled to a proportionate fractional vote. There shall be no cumulative
voting in the election of Trustees or on any other matter submitted to a vote
of the Shareholders. Shares may be voted in person or by proxy. Until Shares of
the Trust or any Class are issued, the Trustees may exercise all rights of
Shareholders of the Trust or such Class and may take any action required or
permitted by law, this Declaration or the Bylaws of the Trust to be taken by
Shareholders of the Trust or Class.
Only Shareholders who are owners of record on the books of the Trust on the
applicable record date will be entitled to vote on a matter. For the avoidance
of doubt, the Trust shall be entitled to rely on any vote cast by a
Shareholder, and, without any further or independent investigation, shall deem
any vote cast by a Shareholder that holds of record Shares on behalf of one or
more beneficial owners of Shares to have been taken in accordance with all
applicable laws and regulations governing the relationship between the
Shareholder and its beneficial owners and/or any contractual provision or other
arrangement with any beneficial owner of Shares holding through such
Shareholder, regardless of the manner employed by such Shareholder in
determining how to vote such shares (including, for instance and without
limitation, through the use of so-called "echo voting").
(c) On any matter submitted to a vote of the Shareholders of the Trust, all
Shares of all Classes then entitled to vote shall be voted together, except
that (i) when required by the 1940 Act, this Declaration or any Statement as
defined in Section 4.9 below, to be voted by individual Class, Shares shall be
voted by individual Class, and (ii) when the Trustees have determined that the
matter affects only the interests of Shareholders of one or more Classes, only
Shareholders of such one or more Classes shall be entitled to vote thereon.
Section 4.6. Meetings. Meetings of the Shareholders of the Trust or any one
or more Classes thereof may be called and held from time to time for the
purpose of taking action upon any matter requiring the vote or authority of the
Shareholders as herein
-6-
provided or upon any other matter deemed by the Trustees to be necessary or
desirable. The Trustees may set forth in the Bylaws, or may otherwise
establish, provisions relating to the calling and holding of meetings
(including the holding of meetings by electronic or other similar means),
notice of meetings, record dates, place of meetings, conduct of meetings,
voting by proxy, postponement, adjournment or cancellation of meetings and
related matters.
Section 4.7. Quorum and Action. (a) The Trustees shall set forth in the
Bylaws the quorum required for the transaction of business by the Shareholders
at a meeting, which quorum requirement may vary by Class and by the action to
be taken at the meeting, which quorum shall in no event be less than the
holders of thirty percent (30%) of the Shares entitled to vote at such meeting
or on such action. If a quorum is present when a duly called and held meeting
is convened, the Shareholders present may continue to transact business until
adjournment, even though the withdrawal of a number of Shareholders originally
present leaves less than the proportion or number otherwise required for a
quorum.
(b) The Shareholders shall take action by the affirmative vote of the
holders of Shares entitled to vote and representing a majority of votes cast at
a meeting of Shareholders at which a quorum is present, except in the case of
the election of Trustees which shall only require a plurality of votes cast at
a meeting of Shareholders at which a quorum is present, and except as may be
otherwise required by applicable law or any provision of this Declaration, any
Statement or the Bylaws.
Section 4.8. Action by Written Consent in Lieu of Meeting of
Shareholders. Any action required or permitted to be taken at a meeting of the
Shareholders may be taken, if (but only if) so directed by the Trustees,
without a meeting by written action executed by Shareholders, as of a record
date specified in accordance with the Bylaws, holding not less than the minimum
number of Shares that would have been necessary to take the action at a
meeting, assuming that all of the Shareholders entitled to vote on that action
were present and voting at that meeting. The written action shall be effective
when it has been executed by the requisite number of Shareholders and delivered
to the secretary of the Trust, unless a different effective time is provided in
the written action. Such a consent may be executed and delivered by electronic
means in accordance with any procedures that may be adopted by the Trustees
from time to time.
Section 4.9. Classes of Shares. The Trust shall initially consist of one
Class of an unlimited number of Common Shares. The Trustees may from time to
time authorize the division of Shares of the Trust into additional Classes and
any such Classes may be further divided into series or sub-classes, and if so
divided, all references to Classes herein shall include references to any
series or sub-class thereof, except as the context may otherwise require. The
relative rights, preferences, privileges, limitations, restrictions and other
relative terms of a Class and any series or sub-class thereof shall be
established and designated by the Trustees and may be modified by the Trustees
from time to time. The Trustees may divide or combine Shares of any Class or
any series or sub-class thereof into a lesser or greater number, including,
without limitation, by a
-7-
division or combination accomplished by means of a stock split or a reverse
stock split, without thereby changing their proportionate beneficial interest
in the Trust; classify or reclassify any issued or unissued Shares of any
Class or any series or sub-class thereof into one or more Classes, series or
sub-classes; combine two or more Classes or series or sub-classes thereof into
a single Class or series or sub-class; terminate any one or more Classes or
series or sub-classes thereof; change the name or other designation of a
Class or series or sub-class thereof; and take such other action with respect
to the Classes or series or sub-classes thereof as the Trustees may deem
desirable. To the extent necessary or appropriate to give effect to the
preferences and special or relative rights and privileges of any Classes, or
series or sub-classes thereof, the Trustees may allocate assets, liabilities,
income and expenses to a particular Class or series or sub-class thereof or
apportion the same among two or more Classes or series or sub-classes thereof.
Except as may otherwise be specifically set forth in this Declaration or in a
Statement establishing and designating Classes of Shares, the Shares shall have
the powers, preferences, rights, qualifications, limitations and restrictions
described below:
(a) Common Shares.
(i) Subject to the rights of the holders of the Preferred Shares, if any,
in the event of the termination of the Trust, the holders of the Common
Shares shall be entitled to receive pro rata the net distributable assets of
the Trust.
(ii) The holders of the Common Shares shall not, as such holders, have
any right to acquire, purchase or subscribe for any Common Shares or
securities of the Trust which it may hereafter issue or sell, other than
such right, if any, as the Trustees in their discretion may determine.
(iii) Subject to the rights of the holders of the Preferred Shares, if
any, dividends or other distributions, when, as and if declared by the
Trustees, shall be shared equally by the holders of Common Shares on a share
for share basis. Any dividends or other distributions or any portion thereof
as declared and distributed may be paid in cash to the holder, or
alternatively, be reinvested in full and fractional Shares of the Trust as
directed by the Trustees, or, if so permitted by the Trustees, at the
election of the Shareholder.
(b) Preferred Shares. Preferred Shares may be issued from time to time in
one or more series or sub-classes with distinctive serial designations and
(i) may have such voting powers, full or limited; (ii) may be subject to
redemption or repurchase at such time or times and at such price or prices;
(iii) may be entitled to receive dividends (which may be cumulative or
noncumulative) at such rate or rates, on such conditions, and at such times,
and payable in preference to, or in such relation to, the dividends payable on
any other Class or series or sub-class; (iv) may have such rights upon the
termination of, or upon any distribution of the assets of, the Trust; (v) may
be made convertible into, or exchangeable for, Shares of any other Class or
series or sub-class of the Trust, at such price or prices or at such rates of
exchange and with such adjustments; and (vi) shall have such other relative,
participating, optional or other special rights, qualifications, limitations or
restrictions thereof, all as shall hereafter be stated and expressed in the
resolution or resolutions providing for the issue of such Preferred Shares
-8-
from time to time adopted by the Trustees (or a Committee thereof) in
accordance with subsection (c) below. Any of such matters may be made dependent
upon facts ascertainable outside this Declaration, or outside the resolution or
resolutions providing for the issue of such Preferred Shares.
(c) The division of Shares of the Trust into Shares of one or more Classes
in addition to the Common Shares, including any Preferred Shares issued
hereunder from time to time, shall be authorized by the vote of a majority of
the Trustees, or by a Committee thereof specifically so authorized by the
Trustees, and shall be evidenced by a written statement setting forth such
establishment and designation and the relative rights and preferences of such
Class or Classes, and the effective date of such establishment and designation
(the "Statement"), executed by such one or more officers of the Trust as shall
be authorized by the Trustees, or any authorized Committee thereof, and shall
further be filed in accordance with the provisions of Section 11.2 hereof.
Additions or modifications to a Statement, including, without limitation, any
termination of an existing Class, shall be made in the same manner as is
permitted for the establishment and designation of such Class. Unless otherwise
set forth in the Statement to the contrary, no such Statement shall constitute
an amendment to or a part of this Declaration.
Section 4.10. Disclosure of Shareholder Holdings. The holders of Shares or
other securities of the Trust shall upon demand disclose to the Trust 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; to comply with the requirements of any
other law or regulation; or as the Trustees may otherwise decide, and ownership
of Shares may be disclosed by the Trust if so required by applicable law or as
the Trustees may otherwise decide.
Section 4.11. Access to Trust Records. As provided in Section 3819 of the
Delaware Act, Shareholders shall only have such right to inspect the such
records, documents, accounts and books of the Trust as may be granted from time
to time by the Trustees, and subject to such reasonable standards (including
standards governing what information and documents are to be furnished at what
time and location and at whose expense) as may be established from time to time
by the Trustees.
Section 4.12. Communications with Shareholders. Any notices, reports,
statements, or communications with Shareholders of any kind required under this
Declaration, including any such communications with Shareholders or their
counsel or other representatives required under Section 9.8 hereof, or
otherwise made by the Trust or its agents on behalf of the Trust shall be
governed by the provisions pertaining thereto in the Bylaws.
-9-
ARTICLE V
THE TRUSTEES
Section 5.1. Management of the Trust. The business and affairs of the Trust
shall be managed under the direction of the Trustees, and they shall have all
powers necessary and desirable to carry out that responsibility, including,
without limitation, those powers described more fully in Article VI hereof.
Section 5.2. Qualification, Number and Class. Each Trustee shall be a
natural person. A Trustee need not be a citizen of the United States or a
resident of the State of Delaware. By action of three-quarters (3/4) of the
Trustees as may then be in office, the Trustees may from time to time establish
the number of Trustees. 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
resignation, retirement or removal of a Trustee pursuant to Section 5.4 hereof.
Section 5.3. Term and Election. Except as provided in Section 5.4 below, and
subject to the voting rights established with respect to a particular Class,
each Trustee shall hold office until his successor, if any, is elected,
qualified and serving as a Trustee hereunder. Any Trustee vacancy may be filled
by the affirmative vote or consent of three-quarters (3/4) of the Trustees then
in office, except as prohibited by the 1940 Act, or, if for any reason there
are no Trustees then in office, vacancies may be filled by the officers of the
Trust elected pursuant to Section 6.2(b)(iii) hereof, or may be filled in any
other manner permitted by the 1940 Act; provided that if the Shareholders of
any Class are entitled separately to elect one or more Trustees, a majority of
the remaining Trustees or the sole remaining Trustee entitled to be elected by
that Class may fill any vacancy among the number of Trustees elected by that
Class.
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 Trustees may also determine by resolution those Trustees in each
Class that shall be elected by Shareholders of a particular Class (e.g., by a
Class of Preferred Shares). The term of office of Class I 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 of 1933. The term of Class II 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 of 1933. The term of Class III
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 of 1933. 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
-10-
succeed the Trustees whose terms of office have expired. The Trustees shall be
elected at an annual meeting of the Shareholders or special meeting in lieu
thereof called for that purpose.
Section 5.4. Resignation, Retirement and Removal. Any Trustee may resign or
retire as a Trustee by an instrument in writing signed by him and delivered or
mailed to the Chair, if any, the president or the secretary, and such
resignation or retirement shall be effective upon such delivery, or at a later
date according to the terms of the instrument. Any Trustee who has attained a
mandatory retirement age or term limit established pursuant to, or who is
otherwise required to retire in accordance with, any written policy adopted
from time to time by at least three-quarters (3/4) of the Trustees shall,
automatically and without action of such Trustee or the remaining Trustees, be
deemed to have retired in accordance with the terms of such policy, effective
as of the date determined in accordance with such policy. Except as aforesaid,
any Trustee may be removed from office only (i) by action of at least a
majority of the remaining Trustees if such removal is approved by the action of
at least three-quarters (3/4) of the Outstanding Shares, except that any
Trustees elected or appointed with respect to a particular Class of Shares may
be removed only by the action of at least three-quarters (3/4) of the
Outstanding Shares of that Class, or (ii) by the action of at least
three-quarters (3/4) of the remaining Trustees, specifying the date when such
removal shall become effective. Except to the extent expressly provided in a
written agreement to which the Trust is a party or in a written policy adopted
by the Trustees, no resigning, retiring or removed Trustee shall have any right
to any compensation for any period following his resignation, retirement or
removal, or any right to damages on account of such resignation, retirement or
removal.
Section 5.5. Vacancies. The death, resignation, retirement, removal, or
incapacity of one or more of the Trustees, or all of them, shall not operate to
annul the Trust 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, or the number of Trustees as
fixed is reduced, the Trustees in office, regardless of their number, shall
have all the powers granted to the Trustees, and during the period during which
any such vacancy shall occur, only the Trustees then in office shall be counted
for the purposes of the existence of a quorum or any action to be taken by such
Trustees.
ARTICLE VI
POWERS OF TRUSTEES
Section 6.1. General Powers. The Trustees shall have exclusive and absolute
control over the Trust Property and over the business of the Trust but with
full powers of delegation, except as may otherwise be expressly prohibited by
this Declaration. The Trustees shall have the power to direct the business and
affairs of the Trust and carry on the Trust's operations and maintain offices
both within and outside the State of Delaware, and to do or authorize all such
other things and execute or authorize the execution of all such instruments as
they deem necessary, proper or desirable in order to promote the
-11-
interests of the Trust. With respect to any power or authority of the Trustees
hereunder, whether stated or implied, the Trustees shall have all further
powers and authority as may be necessary, incidental, relative, conducive,
appropriate or desirable for the accomplishment, carrying out or attainment of
any action authorized by the Trustees. In construing the provisions of this
Declaration, the presumption shall be in favor of a grant of power to the
Trustees. Without limiting the foregoing, the Trustees shall have power and
authority to cause the Trust to operate and carry on the business of an
investment company and the Trustees shall exercise all the powers as are
necessary, convenient, appropriate, incidental or customary in connection
therewith and may exercise all powers which are ordinarily exercised by the
trustees of a statutory trust. The enumeration of any specific power herein
shall not be construed as limiting the aforesaid general powers. Such powers of
the Trustees may be exercised without order of or resort to any court. Whenever
in this Declaration the Trustees are given authority to act on behalf of the
Trust or to direct, authorize or cause the Trust to take any action, such power
and authority shall apply, mutatis mutandis, to any action of the Trust on
behalf of any Class or series or sub-class thereof.
Section 6.2. Certain Specific Powers. (a) Investments. The Trustees shall
not in any way be bound or limited by present or future laws, rules,
regulations, or customs in regard to investments by fiduciaries, but shall have
full authority and power to authorize the Trust to make, invest and reinvest
in, to buy or otherwise acquire, to hold, for investment or otherwise, to
borrow, to sell, terminate, exercise or otherwise dispose of, to lend or to
pledge, to write, enter into, engage, trade or deal in any and all investments
or investment strategies as they may deem proper at any time and from time to
time to accomplish the purpose of the Trust. In furtherance of, and in no way
limiting, the foregoing, the Trustees shall have power and authority to
authorize the Trust:
(i) to exercise powers and rights of subscription or otherwise which in
any manner arise out of ownership of securities or other assets;
(ii) to hold any security or property in a form not indicating any trust,
whether in bearer, unregistered or other negotiable form or either in the
Trust's name or in the name of a custodian or a nominee or nominees;
(iii) to exercise all rights, powers and privileges of ownership or
interest in all securities and other assets included in the Trust Property,
including the right to vote thereon and otherwise act with respect thereto
and to do all acts for the preservation, protection, improvement and
enhancement in value of all such assets;
(iv) 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, tangible or intangible, including cash, securities, currencies,
any commodities, and any interest therein;
(v) to borrow money for any purpose and in this connection issue notes or
other evidence of indebtedness;
-12-
(vi) to secure borrowings by mortgaging, pledging or otherwise subjecting
as security all or any portion of the Trust Property;
(vii) to endorse, guarantee, or undertake the performance of any
obligation or engagement of any other Person;
(viii) to lend money or any other Trust Property;
(ix) to aid by further investment any corporation, company, trust,
association or firm, any obligation of or interest in which is included in
the Trust Property or in the affairs of which the Trustees have any direct
or indirect interest and to do all acts and things designed to protect,
preserve, improve or enhance the value of such obligation or interest;
(x) to guarantee or become surety on any or all of the contracts, stocks,
bonds, notes, debentures and other obligations of any such corporation,
company, trust, association or firm;
(xi) to consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer, any security or
property of which is held in the Trust;
(xii) to consent to any contract, lease, mortgage, purchase, or sale of
property by such corporation or issuer;
(xiii) to pay calls or subscriptions with respect to any security held in
the Trust; and
(xiv) to join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit
any security with, or transfer any security to, any such committee,
depositary or trustee, and to delegate to them such power and authority with
relation to any security (whether or not so deposited or transferred) as the
Trustees shall deem proper, and to agree to pay, and to pay, such portion of
the expenses and compensation of such committee, depositary or trustee as
the Trustees shall deem proper.
(b) Additional Powers. The Trustees shall have the power and authority on
behalf of the Trust:
(i) to employ, engage or contract with, and make payments to, such
Persons as the Trustees may deem desirable for the transaction of the
business of the Trust, including, without limitation, any Trustee or officer
of the Trust or any firm of which any such Trustee or officer is a member,
whether as agents or independent contractors of the Trust, or as delegates
of the Trustees, officers, or any other Person who may be involved with the
management of the business affairs of the Trust, to have such titles, and
such rights, powers and duties as the Trustees may determine from time to
time, to terminate any such employment, engagement or contract or other
relationship, and to delegate to any such Person
-13-
the supervision of any other Person that has been so employed, engaged or
contracted with;
(ii) to authorize the Trust to enter into joint ventures, partnerships
and any other combinations or associations;
(iii) to elect and remove such officers as they consider appropriate,
including, without limitation, a president and a secretary;
(iv) to authorize the Trust to indemnify any Person with whom the Trust
has dealings, including, without limitation, any service provider employed
pursuant to Article VII hereof, to such extent as the Trustees shall
determine;
(v) to authorize the Trust to purchase, and pay for out of Trust
Property, (A) insurance policies insuring the Shareholders, Trustees,
officers, employees and any other Persons, including, without limitation,
any service provider employed pursuant to Article VII hereof, against any or
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 the Trust would have the power to indemnify such Person against such
liability, (B) insurance for the protection of Trust Property, (C) insurance
as may be required by applicable law, or (D) such other insurance as the
Trustees shall deem advisable, in each case as the Trustees shall determine;
(vi) to authorize the Trust to establish pension, profit-sharing, share
purchase, deferred compensation and other retirement, incentive and benefit
plans, including the purchasing of life insurance and annuity contracts as a
means of providing such retirement and other benefits, for any Trustees,
officers, employees and agents of the Trust;
(vii) to authorize the Trust to guarantee indebtedness or contractual
obligations of others;
(viii) to determine and change the fiscal year of the Trust and the
method by which its accounts shall be kept;
(ix) to 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
(x) to engage in any other lawful act or activity in connection with or
incidental to any of the powers enumerated in this Declaration, to do
everything necessary, suitable or proper for the accomplishment of any
purpose or the attainment of any object or the furtherance of any power
herein set forth, either alone or in association with others, and to do
every other act or thing incidental or appurtenant to or growing out of or
connected with the aforesaid business or purposes, objects or powers.
-14-
(c) The foregoing enumeration of the powers and authority of the Trustees
shall be read as broadly and liberally as possible, it being the intent of the
foregoing in no way to limit the Trustees' powers and authority.
Section 6.3. Issuance and Repurchase of Shares. The Trustees shall have the
power to authorize the Trust to issue, sell, repurchase, redeem, retire,
cancel, acquire, hold, resell, reissue, dispose of, transfer, and otherwise
deal in Shares and in any options, warrants or other rights to purchase Shares
or any other interests in the Trust other than Shares.
Section 6.4. Delegation; Committees. The Trustees shall have power to
delegate from time to time to one or more of their number or to officers,
employees, agents or independent contractors 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,
except to the extent such delegation is prohibited by applicable law. Without
limiting the foregoing, and notwithstanding any provisions herein to the
contrary, the Trustees may by action of three-quarters (3/4) of the Trustees
then in office appoint committees consisting of one or more Trustees then in
office and such other members as the Trustees shall approve, which committees
may be empowered to act for and bind the Trustees and the Trust, as if the acts
of such committees were the acts of all the Trustees then in office.
Section 6.5. Collection and Payment. The Trustees shall have the power to
authorize the Trust or its agents to: collect all money or other property due
to the Trust; to pay all claims, including taxes, against the Trust Property;
to prosecute, defend, arbitrate, compromise or abandon any claims relating to
the Trust Property; to foreclose any security interest securing any
obligations, by virtue of which any money or other property is owed to the
Trust; and to enter into releases, agreements and other instruments; but the
Trustees shall have no liability for failing to authorize any of the foregoing.
Section 6.6. Expenses. The Trustees shall have the power to authorize the
Trust to incur and pay any expenses which, in the opinion of the Trustees, are
necessary or incidental to carry out any of the purposes of this Declaration,
to pay compensation from the funds of the Trust to themselves as Trustees and
to reimburse themselves from the funds of the Trust for their expenses and
disbursements. The Trustees shall fix the compensation of all officers,
employees and Trustees.
Section 6.7. Manner of Acting. Except as otherwise provided herein, under
applicable law or in the Bylaws, any action to be taken or determination made
by the Trustees may be taken or made by a majority of the Trustees present at a
meeting of Trustees (a quorum being present), including any meeting held by
means of a conference telephone circuit or similar communications equipment by
means of which all persons participating in the meeting can hear each other, or
by written consents of a majority of Trustees then in office. Any such action
or determination may be made by reference to
-15-
one or more documents or instruments or policies or procedures outside this
Declaration and outside the resolutions of the Trustees. Except as set forth
specifically in this Declaration, any action that may be taken by the Trustees
may be taken by them in their sole discretion and without the vote or consent
of Shareholders.
Section 6.8. Bylaws. The Trustees may adopt Bylaws not inconsistent with
this Declaration to provide for the conduct of the business of the Trust,
including, without limitation, the rights and powers of the Trust, its
Trustees, officers, employees and Shareholders, and shall have the exclusive
power to amend or repeal such Bylaws.
Section 6.9. Principal Transactions. Except in transactions not permitted by
the 1940 Act, or otherwise prohibited by Section 10.2(b) of this Declaration,
the Trustees may authorize the Trust to buy any securities or other assets from
or sell or lend any securities or other assets of the Trust to, any affiliate
of the Trust or any account managed by an affiliate of the Trust, any Trustee
or officer of the Trust or any firm of which any such Trustee or officer is a
member acting as principal, or have any such dealings with any service provider
employed pursuant to Article VII hereof.
Section 6.10. Effect of Trustees' Determination. Any action taken or
determination made by or pursuant to the direction of the Trustees in good
faith and consistent with the provisions of this Declaration shall be final and
conclusive and shall be binding upon the Trust, every holder at any time of
Shares and any other Person.
ARTICLE VII
SERVICE PROVIDERS
Section 7.1. Investment Adviser and Administrator. The Trust may enter into
contracts with one or more Persons, to act as investment adviser, investment
sub-adviser, manager, administrator, sub-administrator or other agent or
independent contractor to the Trust, and as such to perform such functions as
the Trustees may deem reasonable and proper, including, without limitation,
investment advisory, management, research, valuation of assets, clerical and
administrative functions, under such terms and conditions, and for such
compensation, as the Trustees may deem advisable. The Trustees may also
authorize or direct any adviser or sub-adviser to employ one or more
sub-advisers from time to time and any administrator to employ one or more
sub-administrators from time to time, upon such terms and conditions as shall
be approved by the Trustees.
Section 7.2. Underwriter; Transfer Agent; Shareholder Servicing Agent;
Custodian. The Trust may enter into a contract or contracts with one or more
Persons to act as underwriters, dealers or placement agents whereby the Trust
may either agree to sell Shares of the Trust or any Class to the other party or
parties to the contract or appoint such other party or parties its sales agent
or agents for such Shares or contractor for the sale of such Shares, all with
such other provisions as the Trustees may deem reasonable and proper, and the
Trust may from time to time enter into transfer agency, sub-transfer
-16-
agency and/or shareholder servicing contract(s), in each case with such terms
and conditions, and providing for such compensation, as the Trustees may deem
advisable.
All securities and cash of the Trust shall be held pursuant to a written
contract or contracts with one or more custodians and subcustodians or shall
otherwise be held in accordance with the 1940 Act.
Section 7.3. Parties to Contract. Any contract of the character described in
this Article VII may be entered into with any Person, including, without
limitation, the investment adviser, any investment sub-adviser or an affiliate
of the investment adviser or sub-adviser, although one or more of the Trustees,
officers, or Shareholders of the Trust may be an officer, director, trustee,
shareholder, or member of such other party to the contract, or otherwise
interested in such contract, and no such contract shall be invalidated or
rendered voidable by reason of the existence of any such relationship, nor
shall any Person holding such relationship be liable merely by reason of such
relationship for any loss or expense to the Trust under or by reason of said
contract or accountable for any profit realized directly or indirectly
therefrom. The same Person may be a party to more than one contract entered
into pursuant to this Article VII and any individual may be financially
interested or otherwise affiliated with Persons who are parties to any or all
of the contracts mentioned in this Article VII.
Section 7.4. Further Authority of Trustees. The authority of the Trustees
hereunder to authorize the Trust to enter into contracts or other agreements or
arrangements shall include the authority of the Trustees to modify, amend,
waive any provision of, supplement, assign all or a portion of, novate, or
terminate such contracts, agreements or arrangements. The enumeration of any
specific contracts in this Article VII shall in no way be deemed to limit the
power and authority of the Trustees as set forth in Section 6.2 hereof to
authorize the Trust to employ, contract with or make payments to such Persons
as the Trustees may deem desirable for the transaction of the business of the
Trust.
ARTICLE VIII
DISTRIBUTIONS; DETERMINATION OF NET ASSET VALUE
Section 8.1. Distributions. The Trustees may from time to time declare and
authorize the payment of, or may prescribe and set forth in a duly adopted vote
or votes of the Trustees, the bases and time or frequency, which may be monthly
or otherwise, for the declaration and payment of, such dividends and
distributions on Shares of a particular Class as they may deem necessary or
desirable, after providing for actual and accrued expenses and liabilities
(including such reserves as the Trustees may establish) determined in
accordance with good accounting practices. All dividends and distributions on
Shares of a particular Class shall be distributed pro rata to the Shareholders
of that Class in proportion to the number of Shares of that Class held by such
Shareholders at the date and time of record for the payment of such dividends
or distributions, subject to any variations with respect to Classes of Shares,
if any, and in a manner consistent with the 1940 Act and the Code. Such
distributions may be paid in
-17-
cash and/or in securities or other property, and the composition of any such
distribution shall be determined by the Trustees and may be different among
Shareholders (including differences among Shareholders in the same Class).
Section 8.2. Determination of Net Asset Value; Valuation of Portfolio
Assets. The Trustees may from time to time prescribe such bases and times for
determining the per Share net asset value of the Shares of the Trust or any
Class thereof and may prescribe or approve the procedures and methods for
determining the value of portfolio assets as they may deem necessary or
desirable.
Section 8.3. Reserves. The Trustees may set apart, from time to time, out of
any funds of the Trust or funds allocable to a Class thereof a reserve or
reserves for any proper purpose, and may abolish any such reserve.
Section 8.4. Determination by Trustees. The Trustees may make any
determinations they deem necessary with respect to the provisions of this
Article VIII, including, but not limited to, the following matters: the amount
of the assets, obligations, liabilities and expenses of the Trust; the amount
of the net income of the Trust from dividends, capital gains, interest or other
sources for any period and the amount of assets at any time legally available
for the payment of dividends or distributions; which items are to be treated as
income and which as capital; the amount, purpose, time of creation, increase or
decrease, alteration or cancellation of any reserves or charges and the
propriety thereof (whether or not any obligation or liability for which such
reserves or charges were created shall have been paid or discharged); the
market value, or any other price to be applied in determining the market value,
or the fair value, of any security or other asset owned or held by the Trust;
the number of Shares of the Trust issued or issuable; the net asset value per
Share; and any of the foregoing matters as it may pertain to any Class.
ARTICLE IX
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 9.1. No Personal Liability of and Indemnification of Shareholders.
No personal liability for any debt, liability or obligation or expense incurred
by, contracted for, or otherwise existing with respect to, the Trust or any
Class shall attach to any Shareholder or former Shareholder of the Trust. In
case any Shareholder or former Shareholder of the Trust shall be held to be
personally liable solely by reason of his being or having been a Shareholder
and not because of his acts or omissions or for some other reason, the
Shareholder or former Shareholder (or his 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 out of the assets
of the Trust to be held harmless from and indemnified against all loss and
expense arising from such liability; 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 any
Shares or for losses suffered by reason of any changes in value of any Trust
assets. The Trust shall, upon request by the Shareholder or former Shareholder,
assume the
-18-
defense of any claim made against the Shareholder for any act or obligation of
the Trust and satisfy any judgment thereon. Except as otherwise specifically
provided in this Declaration or in the By-Laws, the Trust shall have no
obligation to pay or reimburse on behalf of any Shareholder, or to indemnify
any Shareholder against, any fees, expenses or costs arising under any
circumstances, whether in connection with a proceeding of any kind or otherwise.
Section 9.2. Limitation of Liability of Trustees and Others. (a) Extent of
Duties. No Trustee, officer, or employee of the Trust shall owe any duty, or
have any related liability, to any Person whatsoever (including without
limitation any Shareholder) other than to the Trust, and this Declaration of
Trust eliminates any such duty arising at law (common or statutory) or in
equity and any related liability, to the extent that such duty or liability may
be so eliminated.
(b) No Liability to Third Parties. No person who is or has been a Trustee,
officer, or employee of the Trust shall be subject to any personal liability
whatsoever to any Person, other than the Trust, in connection with the affairs
of the Trust; and all Persons shall look solely to the Trust Property for
satisfaction of claims of any nature arising in connection with the affairs of
the Trust.
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.
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, agents or independent contractors,
whether past, present or future, shall be personally liable therefor.
(c) Limitation of Liability to Trust and Shareholders. No person who is or
has been a Trustee, officer or employee of the Trust shall be liable to the
Trust or to any Shareholder, Trustee, officer, employee, or agent of the Trust
for any action or failure to act (including without limitation the failure to
compel in any way any former or acting Trustee to redress any breach of trust)
except for his or her own bad faith, willful misfeasance, gross negligence or
reckless disregard of his or her duties involved in the conduct of the
individual's office, and for nothing else, and shall not be liable for errors
of judgment or mistakes of fact or law.
(d) No Liability for Acts of Others. Without limiting the foregoing
limitations of liability contained in this Section 9.2, a Trustee shall not be
responsible for or liable in any event for any neglect or wrongdoing of any
officer, employee, investment adviser, sub-adviser, principal underwriter,
custodian or other agent or independent contractor of
-19-
the Trust, nor shall any Trustee be responsible or liable for the act or
omission of any other Trustee (or for the failure to compel in any way any
former or acting Trustee to redress any breach of trust), except in the case of
such Trustee's own willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his or her office.
The provisions of this Section 9.2 do not address or limit any claim that
the Trust may have against any Person contracting with the Trust, or change any
obligation owed to the Trust under any contract or otherwise.
Section 9.3. Reliance on Experts; Trustees Not Experts; No Bond or
Surety. The Trustees may rely upon advice of counsel or other experts with
respect to the meaning and operation of this Declaration and their duties as
Trustees hereunder, and shall be under no liability for any act or omission in
accordance with such advice or for merely 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 or
oral reports made to the Trustees by any officer, employee or agent of the
Trust, any Trustee or committee of Trustees, or any counsel to the Trust, the
Trustees, any committee of Trustees or Trustee, or any independent registered
public accounting firm 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 hereunder. The appointment, designation or
identification (including in any proxy or registration statement or other
document) of a Trustee as chair of the Trustees, a member or chair of a
committee of the Trustees, an expert on any topic or in any area (including an
audit committee financial expert), or the lead independent Trustee, or as
having experience, attributes or skills in any area, or any other appointment,
designation or identification of a Trustee, shall not impose on that person any
standard of care or liability that is greater than that imposed on that person
as a Trustee in the absence of the appointment, designation or identification,
and no Trustee who has special attributes, skills, experience or expertise, or
is appointed, designated or identified as aforesaid, shall be held to a higher
standard of care by virtue thereof. In addition, no appointment, designation or
identification of a Trustee as aforesaid shall affect in any way that Trustee's
rights or entitlement to indemnification or advancement of expenses. The
Trustees shall not be required to give any bond as such, nor any surety if a
bond is required.
Section 9.4. Liability of Third Persons Dealing with the Trust or Trustees.
No third Person dealing with the Trust or the Trustees shall be bound to make
any inquiry concerning the validity of any transaction made or to be made by
the Trust or Trustees or to see to the application of any payments made or
property transferred to the Trust or upon its order.
Section 9.5. Indemnification and Advancement of Expenses. Subject to the
exceptions and limitations contained in this Section 9.5, every person who is,
or has been, a Trustee, officer, or employee of the Trust, including persons
who serve at the request of the Trust as directors, trustees, officers,
employees, agents or independent contractors of another organization in which
the Trust has an interest as a shareholder, creditor or
-20-
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,
officer, employee, agent or independent contractor and against amounts paid or
incurred by him in settlement thereof.
No indemnification shall be provided hereunder to a Covered Person to the
extent such indemnification is prohibited by applicable federal law.
The rights of indemnification herein provided may be insured against by
policies maintained by the Trust, shall be severable, shall not affect any
other rights to which any Covered Person may now or hereafter be entitled,
shall continue as to a person who has ceased to be such a Covered Person and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
Subject to applicable federal law, expenses of preparation and presentation
of a defense to any claim, action, suit or proceeding subject to a claim for
indemnification under this Section 9.5 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 Section 9.5.
To the extent that any determination is required to be made as to whether a
Covered Person engaged in conduct for which indemnification is not provided as
described herein, or as to whether there is reason to believe that a Covered
Person ultimately will be found entitled to indemnification, the Person or
Persons making the determination shall afford the Covered Person a rebuttable
presumption that the Covered Person has not engaged in such conduct and that
there is reason to believe that the Covered Person ultimately will be found
entitled to indemnification.
As used in this Section 9.5, the words "claim," "action," "suit" or
"proceeding" shall apply to all claims, demands, actions, suits,
investigations, regulatory inquiries, proceedings or any other occurrence of a
similar nature, whether actual or threatened and whether civil, criminal,
administrative or other, including appeals, and the words "liability" and
"expenses" shall include without limitation, attorneys' fees, costs, judgments,
amounts paid in settlement, fines, penalties and other liabilities.
Section 9.6. Further Indemnification. Nothing contained herein shall affect
any rights to indemnification to which any Covered Person or other Person may
be entitled by contract or otherwise under law or prevent the Trust from
entering into any contract to provide indemnification to any Covered Person or
other Person. Without limiting the foregoing, the Trust may, in connection with
the acquisition of assets subject to liabilities pursuant to Section 4.2 hereof
or a merger or consolidation pursuant to Section 10.2 hereof, assume the
obligation to indemnify any Person including a Covered Person or otherwise
contract to provide such indemnification, and such indemnification shall not be
subject to the terms of this Article IX.
-21-
Section 9.7. Amendments and Modifications. Without limiting the provisions
of Section 11.1(b) hereof, in no event will any amendment, modification or
change to the provisions of this Declaration or the Bylaws adversely affect in
any manner the rights of any Covered Person to (a) indemnification under
Section 9.5 hereof in connection with any proceeding in which such Covered
Person becomes involved as a party or otherwise by virtue of being or having
been a Trustee, officer or employee of the Trust or (b) any insurance payments
under policies maintained by the Trust, in either case with respect to any act
or omission of such Covered Person that occurred or is alleged to have occurred
prior to the time such amendment, modification or change to this Declaration or
the Bylaws.
Section 9.8. Derivative and Direct Actions. (a) Subject to the Delaware Act,
no Shareholder may bring a derivative or similar action or proceeding in the
right of the Trust or any Class to recover a judgment in its favor (a
"derivative action") unless each of the following conditions is met:
(i) Each Complaining Shareholder, as defined below, was a Shareholder of
the Trust or of the Class on behalf of or in the right or name of which the
action is proposed to be brought (the "affected Class"), at the time of the
action or failure to act complained of, or acquired the Shares afterwards by
operation of law from a Person who was a Shareholder at that time;
(ii) Each Complaining Shareholder was a Shareholder of the Trust or the
affected Class at the time the demand required by subparagraph (iii) below
was made;
(iii) Prior to the commencement of such derivative action, the
Complaining Shareholders have made a written demand on the Trustees
requesting that the Trustees cause the Trust to file the action itself on
behalf of the Trust or the affected Class (a "demand"), which demand
(A) shall be executed by or on behalf of no fewer than three Complaining
Shareholders, each of which shall be unaffiliated and unrelated (by blood or
by marriage) to any other Complaining Shareholder executing such written
demand; and (B) shall include at least the following:
(1) a detailed description of the action or failure to act complained
of, the facts upon which each such allegation is made and the reasonably
estimated damages or other relief sought;
(2) a statement to the effect that the Complaining Shareholders
believe in good faith that they will fairly and adequately represent the
interests of similarly situated Shareholders in enforcing the right of
the Trust or the affected Class and an explanation of why the
Complaining Shareholders believe that to be the case;
-22-
(3) a certification that the requirements of subparagraphs (i) and
(ii) of this paragraph (a) have been met, as well as information and
documentation reasonably designed to allow the Trustees to verify that
certification;
(4) a list of all other derivative or class actions in which any of
the Complaining Shareholders is or was a named plaintiff, the court in
which such action was filed, the date of filing, the name of all counsel
to any plaintiffs and the outcome or current status of such actions;
(5) a certification by each Complaining Shareholder of the number of
Shares of the Trust or the affected Class owned beneficially or of
record by such Complaining Shareholder at the time set forth in
subparagraphs (i) and (ii) of this paragraph (a) and an undertaking by
each Complaining Shareholder that such Complaining Shareholder will be a
Shareholder of the Trust or the affected Class as of the commencement of
and throughout the derivative action, and that during such period each
Complaining Shareholder will notify the Trust in writing of any sale,
transfer or other disposition by the Complaining Shareholders of any
such Shares within three business days thereof; and
(6) an acknowledgment of the provisions of paragraphs (e) and (f) of
this Section 9.8 below;
(iv) Shareholders who held (or subsequently acquired in accordance with
subparagraph (i) above) Shares of the affected Classes at the times
specified in subparagraphs (i) and (ii) above and who own, at the
commencement of the derivative action, Shares representing at least ten
percent (10%) of the Outstanding Shares of the Trust or the affected
Class must join in initiating the derivative action; and
(v) A copy of the proposed derivative complaint must be served on the
Trust, assuming the requirements of subparagraphs (i) through (iv) above
have already been met and the derivative action has not been barred in
accordance with paragraph (c) below.
(b) Within 90 calendar days of the receipt of a Shareholder demand submitted
in accordance with the requirements set forth above, those Trustees who are
independent for purposes of considering the demand or a committee comprised of
some or all of such Trustees (the "independent Trustees") will consider, with
the assistance of counsel who may be retained by such Trustees on behalf and at
the expense of the Trust, the merits of the claim and determine whether
maintaining a suit would be in the best interests of the Trust or the affected
Class, as applicable; provided, however, that the independent Trustees shall
not be required to consider a Shareholder demand that is not submitted in
accordance with the requirements set forth above. If, during this 90-day
period, those independent Trustees conclude that a determination as to the
maintenance of a suit cannot reasonably be made within the 90-day period, those
independent Trustees may extend the
-23-
90-day period by a period of time that the independent Trustees consider will
be sufficient to permit them to make such a determination, not to exceed 60
calendar days from the end of the initial 90-day period (such 90-day period, as
may be extended as provided hereunder, the "review period"). Notice of any such
decision to extend the review period shall be sent in accordance with the
provisions of Section 4.12 hereof to the Complaining Shareholders, or, the
Shareholders' counsel if represented by counsel, in writing within five
business days of any decision to extend the period. Trustees who are not
Interested Persons of the Trust are deemed independent for all purposes,
including for the purpose of approving or dismissing a derivative action. A
Trustee otherwise independent for purposes of considering the demand shall not
be considered not to be independent solely by virtue of (i) the fact that such
Trustee receives remuneration for his service as a Trustee of the Trust or as a
trustee or director of one or more investment companies with the same or an
affiliated investment adviser or underwriter, (ii) the amount of such
remuneration, (iii) the fact that such Trustee was identified in the demand as
a potential defendant or witness, or (iv) the fact that the Trustee approved
the act being challenged in the demand if the act resulted in no material
personal benefit to the Trustee or, if the Trustee is also a Shareholder, no
material personal benefit that is not shared pro rata with other Shareholders.
(c) If the demand has been properly made hereunder, and a majority of the
independent Trustees have considered the merits of the claim and have
determined that maintaining a suit would not be in the best interests of the
Trust or the affected Class, as applicable, the demand shall be rejected and
the Complaining Shareholders shall not be permitted to maintain a derivative
action unless they first sustain the burden of proof to the court that the
decision of the Trustees not to pursue the requested action was not a good
faith exercise of their business judgment on behalf of the Trust. If upon such
consideration a majority of the independent Trustees determine that such a suit
should be maintained, then the appropriate officers of the Trust shall cause
the Trust to commence that suit and such suit shall proceed directly rather
than derivatively or permit the Complaining Shareholders to proceed
derivatively, provided however that any counsel representing the interests of
the Trust or the affected Class shall be approved by the Trustees. The
Trustees, or the appropriate officers of the Trust, shall inform the
Complaining Shareholders of any decision reached under this paragraph (c) by
sending in accordance with the provisions of Section 4.12 hereof written notice
to each Complaining Shareholder, or the Shareholder's counsel, if represented
by counsel, within five business days of such decision having been reached.
(d) If notice of a decision has not been sent to the Complaining
Shareholders or the Shareholders' counsel within the time permitted by
paragraph (c) above, and subparagraphs (i) through (v) of paragraph (a) above
have been complied with, the Complaining Shareholders shall not be barred by
this Declaration from commencing a derivative action.
(e) Each Complaining Shareholder whose demand is rejected pursuant to
paragraph (c) above shall be responsible, jointly and severally, for the costs
and expenses (including attorneys' fees) incurred by the Trust in connection
with the Trust's
-24-
consideration of the demand if a court determines that the demand was made
without reasonable cause or for an improper purpose.
(f) The Trust shall be responsible for payment of attorneys' fees and legal
expenses incurred by a Shareholder bringing a derivative or direct action in
any circumstances only if required by law. The Trust shall not be obligated to
pay any attorneys' fees so incurred by a Shareholder other than fees that are
reasonable and that do not exceed an amount calculated using reasonable hourly
rates.
(g) No Shareholder may bring a direct action claiming injury as a
Shareholder of the Trust where the matters alleged (if true) would give rise to
a claim by the Trust, unless the Shareholder has suffered an injury distinct
from that suffered by the Trust. A Shareholder bringing a direct claim must be
a Shareholder of the Class with respect to which the direct action is brought
at the time of the injury complained of, or have acquired the Shares afterwards
by operation of law from a person who was a Shareholder at that time.
(h) Each Shareholder who commences or maintains a derivative or direct
action in violation of this Section 9.8 shall, jointly and severally, reimburse
the Trust for the costs and expenses (including attorneys' fees) incurred by
the Trust in connection with the action if the action is dismissed on the basis
of the failure to comply with this Section 9.8. If a court determines that any
derivative action has been brought without reasonable cause or for an improper
purpose, the costs and expenses (including attorneys' fees) incurred by the
Trust in connection with the action shall be borne, jointly and severally, by
each Shareholder who commenced the action.
ARTICLE X
DURATION, TERM AND TERMINATION; ELIGIBLE TENDER OFFER;
MERGERS, SALE OF ASSETS AND OTHER TRANSACTIONS
Section 10.1. Duration, Term and Termination; Eligible Tender Offer
(a) Unless (i) earlier dissolved, (ii) the term is extended pursuant to
paragraph (c) of this Section 10.1 or (iii) this Section 10.1 is amended
pursuant to paragraph (d) of this Section 10.1, the Trust shall have a limited
period of existence and shall dissolve at the close of business twelve
(12) years from the date of effectiveness of the Trust's initial registration
statement with the Commission ("Termination Date"), or, if applicable, at the
close of business on the Extended Termination Date (as defined below).
(b) After the close of business on the Termination Date, or, if applicable,
the Extended Termination Date (as defined below), if the Trust has not been
caused to have a perpetual existence pursuant to Section 10.1(d) of this
Article X, the Trustees shall proceed to wind up the affairs of, and liquidate,
the Trust in accordance with Section 10.1(e) of this Article X.
(c) Notwithstanding Section 10.1(a) of this Article X, the Trustees may
approve an extension of the dissolution date of the Trust to a date after the
Termination Date (i) for
-25-
one period that may in no event exceed one year following the Termination Date,
and (ii) for one additional period that may in no event exceed six months, in
each case without a vote of the Shareholders of the Trust (in each case, the
"Extended Termination Date"), upon the affirmative vote of a majority of the
Trustees then in office.
(d) Notwithstanding any other provision in this Declaration or
the By-Laws, if the Trust completes an Eligible Tender Offer (as defined
below), subject to the following sentences, this Section 10.1 of Article X may
be amended by the affirmative vote of a majority of the Trustees or by an
instrument signed by a majority of the Trustees, without a vote of the
Shareholders of the Trust, to eliminate the Termination Date and cause the
Trust to have a perpetual existence. Following an Eligible Tender Offer, the
Trust must have at least $100 million of net assets (the "Termination
Threshold"). If the Board of Trustees determines that the number of properly
tendered shares would result in the net assets of the Trust totaling less than
the Termination Threshold, the Eligible Tender Offer shall be terminated and no
Shares shall be repurchased pursuant to the Eligible Tender Offer and the Trust
shall terminate on the Termination Date.
As used in this Section 10.1 of Article X, an "Eligible Tender Offer" is
defined as a tender offer by the Trust to purchase 100% of the then outstanding
Shares of the Trust at a price equal to the net asset value per Share on the
expiration date of the tender offer, which expiration date shall be as of a
date within twelve months preceding the Termination Date. Notwithstanding any
other provision in this Declaration of Trust to the contrary, the Trust may
conduct an Eligible Tender Offer upon the affirmative vote of a majority of the
Trustees or by an instrument signed by a majority of the Trustees, without a
vote of the Shareholders of the Trust.
(e) Upon dissolution of the Trust or any Class, after paying or otherwise
providing for all charges, taxes, expenses and liabilities, whether due or
accrued or anticipated, as may be determined by the Trustees and as required by
the Delaware Act, which may include the establishment of a liquidating trust or
similar vehicle, the Trust shall, in accordance with such procedures as the
Trustees consider appropriate, reduce the remaining assets of the Trust or
assets of the Trust allocable to the particular Class thereof to distributable
form in cash or other securities, or any combination thereof, and distribute
the proceeds to the Shareholders of the Shares of the Trust or such Class in
the manner determined by the Trustees, provided that Shareholders of a
particular Class shall be entitled to receive a pro rata share of the net
assets of the Trust allocable to such Class only. Thereupon, the Trust or the
Class shall terminate, and the Trustees and the Trust shall be discharged of
any and all further liabilities and duties relating thereto or arising
therefrom, and the right, title, and interest of all parties with respect to
the Trust or such Class shall be canceled and discharged. Without limiting the
provisions of the immediately preceding sentence, in the event that following
the final distribution of the net assets of the Trust or affected Class, as the
case may be, the Trust or affected Class receives or is entitled to receive any
monies or other assets, the Trustees shall be under no obligation to distribute
or provide for the distribution of such monies or other assets to the
Shareholders of the Trust or affected Class, but may make such other
arrangements (including, without limitation, pursuant to any procedures that
the Trustees may approve)
-26-
for the disposition of such monies or other assets as they shall determine in
their sole discretion to be appropriate under the circumstances.
Notwithstanding the foregoing, at their discretion, the Trustees may abandon
any previously adopted plan to terminate the Trust or a Class at any time, with
or without approval of the Shareholders of the Trust or Class.
Section 10.2. Merger and Consolidation; Sale of Assets; Reorganization;
Certain Transactions. (a) Merger and Consolidation. Subject to applicable law,
the Trust may merge or consolidate with or into one or more statutory trusts or
other business entities or series or classes thereof formed or organized or
existing under the laws of Delaware or any other state or the United States or
any foreign country or other foreign jurisdiction by the affirmative vote of
three-quarters (3/4) of the Trustees. Pursuant to and in accordance with
(S)3815(f) of the Delaware Act, and notwithstanding anything to the contrary
contained in this Declaration, an agreement of merger or consolidation so
approved by the Trustees in accordance with this Section 10.2 may (a) effect
any amendment to the governing instrument of the Trust; or (b) effect the
adoption of a new governing instrument of the Trust if it is the surviving or
resulting trust in the merger or consolidation.
(b) Sales of Assets and Reorganizations. Upon the affirmative vote of
three-quarters (3/4) of the Trustees, the Trustees may authorize the Trust or
any Class thereof to sell, lease, transfer, pledge, exchange, convey or dispose
of all or substantially all of the Trust Property (or all or substantially all
of the Trust Property allocated to such Class), including its good will, to any
one or more business or statutory trusts or other business entities or series
or classes thereof (including another Class of the Trust) upon such terms and
conditions and for such consideration (which may include the assumption of some
or all of the outstanding obligations and liabilities, accrued or contingent,
whether known or unknown, of the Trust or such Class) as the Trustees may
determine.
(c) Notwithstanding the foregoing, in the event that a transaction of the
type described in paragraph (a) or paragraph (b) of this Section 10.2 is
required by applicable law to be approved by Shareholders of the Trust or any
Class of the Trust, such transaction shall require approval at a meeting of
Shareholders called for the purpose by a Majority Shareholder Vote, voted in
person or by proxy, of the Trust or such Class entitled to vote, or (b) by the
written consent, without a meeting, of the holders of Shares whose consents,
taken together, constitute a Majority Shareholder Vote of the Trust or the
Class entitled to vote; provided, however, that, if there are then Preferred
Shares outstanding, in the case of any of the foregoing transactions
constituting a plan of reorganization (as such term is used in the 1940 Act)
which adversely affects the Preferred Shares within the meaning of
Section 18(a)(2)(D) of the 1940 Act, and if approval by the holders of
Preferred Shares is therefore required under the 1940 Act, approval, adoption
or authorization of the action in question will also require a Majority
Shareholder Vote of the Preferred Shares voting as a separate class. The
foregoing provisions will apply, mutatis mutandis, to any such transaction
involving a series or sub-class of a Class.
-27-
(d) Certain Transactions. Notwithstanding any other provision of this
Declaration and subject to the exceptions provided in paragraph (iii) of this
subsection, the types of transactions described in paragraph (ii) of this
subsection (d) shall require the affirmative vote or consent of the holders of
three-quarters (3/4) of the Outstanding Shares entitled to vote, when a
Principal Shareholder (as defined in paragraph (i) of this subsection) is
determined in good faith by the Trustees to be a party to the transaction. Such
affirmative vote or consent shall be in addition to the vote or consent of the
Shareholders otherwise required by law, by this Declaration, or by the terms of
any Preferred Shares, whether now or hereafter authorized, or any agreement
between the Trust and any national securities exchange.
(i) The term "Principal Shareholder" shall mean any Person which is the
beneficial owner, directly or indirectly, of more than five percent (5%) of
the Outstanding Shares and shall include any affiliate or associate, as such
terms are defined below, of a Principal Shareholder, or persons acting in
concert. For the purposes of this Section, in addition to the Shares which a
Person beneficially owns directly, (a) any Person shall be deemed to be the
beneficial owner of any Shares (1) 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 (2) which
are beneficially owned, directly or indirectly (including Shares deemed
owned through application of clause (1) above), by any other Person with
which 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 as in effect on December 1, 1986, and
(b) the Outstanding Shares shall include Shares deemed owned through
application of clauses (1) and (2) 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.
(ii) This Section shall apply to the following transactions:
(1) the merger or consolidation of the Trust or any subsidiary of the
Trust with or into any Principal Shareholder;
(2) the issuance of any securities of the Trust to any Principal
Shareholder for cash other than pursuant to a dividend reinvestment or
similar plan available to all Shareholders;
(3) 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);
(4) the sale, lease or exchange to the Trust or any subsidiary
thereof, in exchange for securities of the Trust, of any assets of any
-28-
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).
(iii) The provisions of this subsection shall not be applicable to
(1) any transaction, including without limitation, any rights offering, made
available on a pro rata basis to all Shareholders of the Trust or class
thereof unless the Trustees specifically make such transaction subject to
this Section 10.2, (2) any of the transactions described in paragraph
(ii) of this subsection if three-quarters (3/4) of the Trustees shall have
approved a memorandum of understanding with such Principal Shareholder with
respect to and substantially consistent with such transaction, or (3) any
such transaction with any corporation of which a majority of the outstanding
shares of all classes of stock normally entitled to vote in elections of
directors is owned of record or beneficially by the Trust and its
subsidiaries.
(iv) The Trustees shall have the power and duty to determine for the
purposes of this subsection, on the basis of information known to the Trust,
whether (1) a Person beneficially owns more than five percent (5%) of the
outstanding Shares, (2) a Person is an "affiliate" or "associate" (as
defined above) of another or acting in concert with another, (3) 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 (4) the memorandum
of understanding referred to in paragraph (iii) hereof is substantially
consistent with the transaction covered thereby. Any such determination made
in good faith shall be conclusive and binding for all purposes of this
subsection.
Section 10.3. Conversion. Notwithstanding any other provision of this
Declaration, if the conversion of the Trust from a "closed-end company" to an
"open-end company," as those terms are defined in the 1940 Act, is required to
be approved by some or all of the Shareholders of the Trust under the 1940 Act,
such conversion shall require the affirmative vote of three-quarters (3/4) of
the Trustees then in office followed by (a) by the approval at a meeting of
Shareholders called for the purpose by a Majority Shareholder Vote, voted in
person or by proxy, or (b) by the written consent, without a meeting, of
holders of Shares whose consents, taken together, constitute a Majority
Shareholder Vote, provided that if there are Preferred Shares outstanding, a
Majority Shareholder Vote of the Preferred Shares voting as a separate class
shall also be required. 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 by the terms of any Statement relating to Preferred Shares, whether now or
hereafter authorized, or any agreement between the Trust and any national
securities exchange.
Section 10.4. Combination of Classes. The authority of the Trustees under
this Article X with respect to the merger, consolidation, sale of assets or
reorganization of any
-29-
Class of the Trust is in addition to the authority of the Trustees under
Section 4.9 hereof to combine two or more Classes of the Trust into a single
Class.
ARTICLE XI
AMENDMENTS; FILINGS; MISCELLANEOUS
Section 11.1. Amendments to Declaration and Certificate of Trust. (a) The
Trustees may by vote of a majority of the Trustees then in office amend or
otherwise supplement the Declaration by making an amendment, a Declaration
supplemental hereto or an amended and restated Declaration, provided, however,
that an amendment to any provision of Articles V, IX or X, or Sections 6 or
11.1 hereof shall require the vote of three-quarters (3/4) of the Trustees then
in office. Notwithstanding the foregoing, the Trustees may not amend this
Declaration to alter the number of votes of the Trustees required for the
Trustees to take action under any provision of this Declaration unless at least
an equivalent number of votes of the Trustees has authorized such amendment.
(b) Nothing contained in this Declaration shall permit the amendment of this
Declaration to impair any exemption from or limitation of personal liability of
any Person who is or has been a Shareholder, Trustee, officer or employee of
the Trust, or limit the rights to indemnification, advancement of expenses or
insurance provided in Article IX with respect to actions or omissions of
persons entitled to indemnification, advancement of expenses or insurance under
such Article prior to such amendment.
(c) The Trustees may not amend this Declaration to alter the percentage of
voting Shares required to approve any action which requires a specific
Shareholder vote under this Declaration unless at least an equivalent
percentage of Shareholder votes has authorized such amendment.
(d) The Trust's Certificate of Trust may be amended at any time for any
purpose as the Trustees may determine and such amendment shall be signed by one
or more of the Trustees or by an officer of the Trust as duly authorized by
vote of a majority of the Trustees then in office.
Section 11.2. Filing of Certificate; Copies of Declaration; Counterparts;
Headings. Any amendment to the Certificate of Trust shall be filed with the
Secretary of State of the State of Delaware. The original or a copy of this
instrument and of each amendment and/or restatement hereto shall be kept in the
office of the Trust where it may be inspected by any Shareholder. Anyone
dealing with the Trust may rely on a certificate by an officer or Trustee of
the Trust as to whether or not any such amendments or restatements 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 or Trustee of the Trust to be a copy of this instrument or of any such
amendments or restatements. This instrument may be executed in any number of
counterparts, each of which shall be deemed an original. Headings are placed
herein for convenience of reference only, and in case of any conflict, the text
of this instrument, rather than the headings, shall control.
-30-
Section 11.3. Trustees May Resolve Ambiguities. The Trustees may construe
any of the provisions of this Declaration insofar as the same may appear to be
ambiguous or inconsistent with any other provisions hereof, and any such
construction hereof by the Trustees in good faith shall be conclusive as to the
meaning to be given to such provisions.
Section 11.4. Applicable Law; Forum Selection; Jury Waiver. (a) The Trust
set forth in this instrument is created under and is to be governed by and
construed and administered according to the laws of the State of Delaware,
without reference to its conflicts of law rules, as a Delaware statutory trust
under the Delaware Act, and without limiting the provisions hereof, the Trust
specifically reserves the right to exercise any of the powers and privileges
afforded to statutory trusts or actions that may be engaged in by statutory
trusts under the Delaware Act, and the absence of a specific reference herein
to any such power, privilege, or action shall not imply that the Trust may not
exercise such power or privilege or take such actions.
(b) Notwithstanding the first sentence of Section 11.4(a) hereof, there
shall not be applicable to the Trust, the Trustees, or this Declaration any
provisions of the laws (statutory or common) of the State of Delaware (other
than the Delaware Act) or any other state pertaining to trusts, including by
way of illustration and without limitation, laws that relate to or regulate:
(i) the filing with any court or governmental body or agency of trustee
accounts or schedules of trustee fees and charges; (ii) affirmative
requirements to post bonds for trustees, officers, agents, or employees of a
trust; (iii) the necessity for obtaining a court or other governmental approval
concerning the acquisition, holding, or disposition of real or personal
property; (iv) fees or other sums applicable to trustees, officers, agents or
employees of a trust; (v) the allocation of receipts and expenditures to income
or principal; (vi) restrictions or limitations on the permissible nature,
amount, or concentration of trust investments or requirements relating to the
titling, storage, or other manner of holding of trust assets; (vii) the
establishment of fiduciary or other standards or responsibilities or
limitations on the acts or powers or liabilities or authorities and powers of
trustees if such laws are inconsistent with the authorities and powers or the
limitation on liability of the Trustees set forth or referenced in this
Declaration; or (viii) any requirements that a trust have any initial
beneficiary or any initial corpus. Section 3540 of Title 12 of the Delaware
Code shall not apply to the Trust.
(c) No provision of this Declaration shall be effective to require a waiver
of compliance with any provision of the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended or the 1940 Act, or of any valid
rule, regulation or order of the Commission thereunder.
(d) Subject to the Delaware Act, any action commenced by a Shareholder
(i) directly against (x) the Trust or a Class thereof, (y) its Trustees,
officers, or employees, related to, arising out of or concerning the Trust, is
business or operations, and/or (z) otherwise related to, arising out of or
concerning the Trust, its business or operations or
-31-
(ii) derivatively in the right or name of, or on behalf of the Trust or a
Class thereof (collectively, the "Covered Actions"), shall be brought only in
the U.S. District Court for the District of Massachusetts, or if such action
may not be brought in that court, then such action shall be brought in
Massachusetts Superior Court, Business Litigation Session, in Boston,
Massachusetts (each, a "Designated Court"). The Trust, its Trustees, officers,
employees and Shareholders each (a) consent to jurisdiction in the Designated
Courts; (b) waive any objection to venue in either Designated Court and
(c) waive any objection that either Designated Court is an inconvenient forum.
Except to the extent prohibited by applicable law, if any Shareholder shall
commence a Covered Action in any court other than a Designated Court without
the written consent of the Trust, then each such Shareholder shall be
obligated, jointly and severally, to reimburse the Trust and any Trustee or
officer of the Trust made a party to such proceeding for the costs and expenses
(including attorneys' fees) incurred by the Trust and any Trustee or officer of
the Trust in connection with any successful motion to dismiss, stay or transfer
such action on the basis of the failure to comply with this Section 11.4(d).
(e) In any Covered Action, there shall be no right to a jury trial. THE
RIGHT TO A TRIAL BY JURY IS EXPRESSLY WAIVED TO THE FULLEST EXTENT PERMITTED BY
LAW.
Section 11.5. Statutory Trust Only. 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 venturers.
Section 11.6. Provisions in Conflict with Law or Regulations. (a) The
provisions of this Declaration are severable, and if the Trustees shall
determine, with the advice of counsel, that any such provision, in whole or in
part, conflicts with the 1940 Act, the regulated investment company provisions
of the Code, and the regulations thereunder, the Delaware Act or with other
applicable laws and regulations, the conflicting provision, or the conflicting
part or parts thereof, shall be deemed not to constitute 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 whole or in part, in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision, or such part or parts
thereof, 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.
Section 11.7. Writings. To the fullest extent permitted by applicable law,
except as the Trustees may otherwise determine:
-32-
(a) any requirements in this Declaration or in the Bylaws that any action be
taken by means of any writing, including, without limitation, any written
instrument, any written consent or any written agreement, shall be deemed to be
satisfied by means of any electronic record in such form that is acceptable to
the Trustees provided such form is capable of conversion into a written form
within a reasonable time; and
(b) any requirements in this Declaration or in the Bylaws that any writing
be signed shall be deemed to be satisfied by any electronic signature in such
form that is acceptable to the Trustees.
-33-
IN WITNESS WHEREOF, the undersigned, being the Trustees of the Trust, have
executed this instrument as of the date first written above.
/s/ Xxxx X. Xxxxxxxxxxx, Xx.
--------------------------------------------
Xxxx X. Xxxxxxxxxxx, Xx. as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ Xxxxx Xxxxxx
--------------------------------------------
Xxxxx Xxxxxx, as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxxxxx X. Xxxxxxxx, as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ Xxxxxxxx X.X. Xxxxxx
--------------------------------------------
Xxxxxxxx X. X. Xxxxxx, as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ Xxxx X. Xxxxx
--------------------------------------------
Xxxx X. Xxxxx, as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxxxx X. Xxxxxxx, as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Xxxxxx X. Xxxxx, as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ Xxxxxxxxxx X. Xxxxx
--------------------------------------------
Xxxxxxxxxx X. Xxxxx, as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ Xxxx X. Xxxxxxxxx
--------------------------------------------
Xxxx X. Xxxxxxxxx, as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxx, as Trustee
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
-34-
