Exhibit a
AGREEMENT AND DECLARATION OF TRUST
of
ING PILGRIM SENIOR INCOME FUND
a Delaware Business Trust
Principal Place of Business:
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
TABLE OF CONTENTS
Page
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ARTICLE I................................................................. 1
NAME AND DEFINITIONS...................................................... 1
Section 1.1. Name....................................................... 1
Section 1.2. Definitions................................................ 1
(a) 1940 Act................................................... 1
(b) Affiliate.................................................. 1
(c) Associate.................................................. 1
(d) Bylaws..................................................... 1
(e) Class...................................................... 1
(f) Commission................................................. 2
(g) Declaration of Trust....................................... 2
(h) Fund....................................................... 2
(i) Fund Property.............................................. 2
(j) Interested Person.......................................... 2
(k) Investment Manager......................................... 2
(l) Person..................................................... 2
(m) Principal Shareholder...................................... 2
(n) Principal Underwriter...................................... 2
(o) Series" or "Series of Shares".............................. 2
(p) Shareholder................................................ 2
(q) Shares..................................................... 2
(r) Trustees................................................... 2
ARTICLE II................................................................ 3
PURPOSE OF FUND........................................................... 3
ARTICLE III............................................................... 3
SHARES.................................................................... 3
Section 3.1. Division of Beneficial Interest............................ 3
Section 3.2. Ownership of Shares........................................ 3
Section 3.3. Investments in the Fund.................................... 4
Section 3.4. Status of Shares and Limitation of Personal Liability...... 4
Section 3.5. Power of Board of Trustees to Change Provisions
Relating to Shares........................................ 4
Section 3.6. Establishment and Designation of Classes................... 5
Section 3.7. Establishment and Designation of Series.................... 6
Section 3.8. Indemnification of Shareholders............................ 8
ARTICLE IV................................................................ 8
THE BOARD OF TRUSTEES..................................................... 8
Section 4.1. Number, Election and Tenure................................ 8
Section 4.2. Effect of Death, Resignation, ETC.......................... 9
Section 4.3. Powers..................................................... 9
Section 4.4. Payment of Expenses by the Fund............................ 12
Section 4.5. Payment of Expenses by Shareholders........................ 12
Section 4.6. Ownership of Assets of the Fund............................ 12
Section 4.7. Service Contracts.......................................... 13
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ARTICLE V................................................................. 14
SHAREHOLDERS' VOTING POWERS AND MEETINGS.................................. 14
Section 5.1. Voting Powers.............................................. 14
Section 5.2. Meetings................................................... 14
Section 5.3. Quorum and Required Vote................................... 15
Section 5.4. Action by Written Consent.................................. 15
Section 5.5. Record Dates............................................... 15
Section 5.6. Additional Provisions...................................... 16
ARTICLE VI................................................................ 16
REDEMPTIONS AND REPURCHASES OF SHARES..................................... 16
Section 6.1. Redemption and Repurchase of Shares........................ 16
Section 6.2. Price...................................................... 16
Section 6.3. Payment.................................................... 16
ARTICLE VII............................................................... 16
NET ASSET VALUE AND DISTRIBUTIONS......................................... 16
Section 7.1. Determination of Net Asset Value, Net Income,
and Distributions......................................... 16
ARTICLE VIII.............................................................. 17
COMPENSATION AND LIMITATION OF LIABILITY OF TRUSTEES...................... 17
Section 8.1. Compensation............................................... 17
Section 8.2. Indemnification and Limitation of Liability................ 17
Section 8.3. Trustee's Good Faith Action, Expert Advice,
No Bond or Surety......................................... 17
Section 8.4. Insurance.................................................. 18
ARTICLE IX................................................................ 18
MISCELLANEOUS............................................................. 18
Section 9.1. Liability of Third Persons Dealing with Trustees........... 18
Section 9.2. Termination of Fund or Series.............................. 18
Section 9.3. Merger, Consolidation, Sale of Assets...................... 18
Section 9.4. Amendments................................................. 18
Section 9.5. Filing of Copies, References, Headings..................... 19
Section 9.6. Applicable Law............................................. 19
Section 9.8. Business Trust Only........................................ 20
ARTICLE X................................................................. 20
PRINCIPAL SHAREHOLDERS TRANSACTIONS....................................... 20
Section 10.1 Vote Required.............................................. 20
Section 10.2 Beneficial Owners.......................................... 20
Section 10.3 Covered Transactions....................................... 21
Section 10.4 Exceptions................................................. 21
Section 10.5 Determination by Trustees.................................. 21
Section 10.6 Limitation on Amendment.................................... 21
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AGREEMENT AND DECLARATION OF TRUST
OF
ING PILGRIM SENIOR INCOME FUND
This AGREEMENT AND DECLARATION OF TRUST is made and entered into as of the
date set forth below by the Trustees named hereunder for the purpose of forming
the ING Pilgrim Senior Income Fund, a Delaware business trust (the "Fund") in
accordance with the provisions hereinafter set forth;
NOW, THEREFORE, the Trustees hereby direct that a Certificate of Trust be
filed with the office of the Secretary of State of the State of Delaware and do
hereby declare that the Trustees will hold IN TRUST all cash, securities and
other assets which the Fund now possesses or may hereafter acquire from time to
time in any manner and manage and dispose of the same upon the following terms
and conditions for the pro rata benefit of the holders of Shares in this Fund.
ARTICLE I.
Name and Definitions
Section 1.1. Name. This trust shall be known as "ING Pilgrim Senior Income
Fund" and the Trustees shall conduct the business of the Fund 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:
(a) The "1940 Act" refers to the Investment Company Act of 1940 and the
Rules and Regulations thereunder, all as amended from time to time;
(b) The term "Affiliate" shall have the meaning given it in Rule 12b-2 of
the Securities Exchange Act of 1934;
(c) The term "Associate" shall have the meaning given it in Rule 12b-2 of
the Securities Exchange Act of 1934;
(d) "Bylaws" shall mean the Bylaws of the Fund as amended from time to time
and incorporated herein by reference;
(e) "Class" or "Class of Shares" refers to the division of Shares into two
or more classes;
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(f) The term "Commission" shall have the meaning given it in Section
2(a)(7) of the 1940 Act;
(g) "Declaration of Trust" shall mean this Agreement and Declaration of
Trust, as amended or restated from time to time;
(h) The "Fund" refers to the Delaware business trust established by this
Agreement and Declaration of Trust, as amended from time to time;
(i) The "Fund Property" means any and all property, real or personal,
tangible or intangible, which is owned or held by or for the account of the
Fund;
(j) The term "Interested Person" shall have the meaning given it in Section
2(a)(19) of the 1940 Act and the rules thereunder;
(k) "Investment Manager" or "Manager" means a party furnishing services to
the Fund pursuant to any contract described in Section 4.7(a) hereof;
(l) "Person" means and includes individuals, corporations, partnerships,
limited liability companies, trusts, associations, joint ventures, estates and
other entities, whether or not legal entities, and governments and agencies and
political subdivisions thereof, whether domestic or foreign;
(m) "Principal Shareholder" means any corporation, person or other entity
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 of a
Principal Shareholder;
(n) The term "Principal Underwriter" shall have the meaning given it in
Section 2(a)(29) of the 1940 Act;
(o) "Series" or "Series of Shares" refers to the division of Shares
representing any Class into two or more series.
(p) "Shareholder" means a record owner of outstanding Shares;
(q) "Shares" means the shares of beneficial interest into which the
beneficial interest in the Fund shall be divided from time to time and includes
fractions of Shares as well as whole Shares;
(r) "Trustees" refers to the persons who have signed this Agreement and
Declaration of Trust, so long as they continue in office in accordance with the
terms hereof, and all other persons who may from time to time be duly elected or
appointed to serve on the Board of Trustees in accordance with the provisions
hereof, and reference herein to a Trustee or the Trustees shall refer to such
person or persons in their capacity as Trustees hereunder.
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ARTICLE II.
Purpose of Fund
The purpose of the Fund is to conduct, operate and carry on the business of
a management investment company registered under the 1940 Act.
ARTICLE III.
Shares
Section 3.1. Division of Beneficial Interest. The beneficial interest in
the Fund shall at all times be divided into an unlimited number of Shares. The
Shares of the Fund shall initially be divided into two classes of stock
consisting of (i) a class of common stock, par value $.01 per Share, which shall
be further divided into four series of common stock, designated as Class A,
Class B, Class C and Class Q Common Stock (and such other series of common stock
as may be authorized from time to time by the Trustees in their sole discretion
without Shareholder approval ("Common Stock")) and (ii) a class of preferred
stock which may be divided into one or more series of Preferred Stock and with
such par value as may be authorized from time to time by the Trustees in their
sole discretion without Shareholder approval ("Preferred Stock"). The different
Classes shall be established and designated, and the variations in the relative
rights and preferences as between the different Classes, shall be fixed and
determined by the Trustees.
Subject to the provisions of Section 3.6 and Section 3.7 hereof, each Share
shall have voting rights as provided in Article V hereof, and holders of the
Shares shall be entitled to receive dividends, when, if and as declared with
respect thereto in the manner provided in Section 7.1 hereof. No Shares shall
have any priority or preference over any other Share of the same Class or Series
with respect to dividends or distributions, including distributions upon
termination of the Fund made pursuant to Section 9.2 hereof or of a Class or
Series. All dividends and distributions shall be made ratably among all
Shareholders of a particular Class or Series from the assets held with respect
to such Class or Series according to the number of Shares of such Class or
Series held of record by such Shareholder on the record date for any dividend or
distribution or on the date of termination. Shareholders shall have no
preemptive or other right to subscribe to any additional Shares or other
securities issued by the Fund. The Trustees may from time to time in their sole
discretion and without the need for Shareholder approval divide or combine the
Shares of any particular Class or Series into a greater or lesser number of
Shares and increase or decrease the par value of the Shares of any Class or
Series without thereby materially changing the proportionate beneficial interest
of the Shares of that Class or Series in the assets held by the Fund with
respect to that Class or Series or materially affecting the rights of Shares of
any other Class or Series.
Section 3.2. Ownership of Shares. The ownership of Shares shall be recorded
on the books of the Fund or a transfer or similar agent for the Fund, which
books shall be maintained separately for the Shares of each Class and, if
appropriate, Series. No certificates certifying the ownership of Shares shall be
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issued except as the Board of Trustees may otherwise determine from time to
time. The Trustees may make such rules as they consider appropriate for the
transfer of Shares of each Class or Series and similar matters. The record books
of the Fund as kept by the Fund or any transfer or similar agent, as the case
may be, shall be conclusive as to who are the Shareholders of each Class or
Series and as to the number of Shares of each Class or Series held from time to
time by each.
Section 3.3. Investments in the Fund. Investments may be accepted by the
Fund from such Persons, at such times, on such terms, and for such consideration
as the Trustees from time to time may authorize. In the case of Common Stock,
each investment in the Fund's Class of Common Stock shall be credited to the
individual Shareholder's account in the form of full and fractional Shares of
the Fund, of such Series as the purchaser shall select, at the net asset value
per Share next determined for such Series after receipt of the investment;
provided, however, that the Trustees may, in their sole discretion, impose a
sales charge upon investments in the Fund.
Section 3.4. Status of Shares and Limitation of Personal Liability. Shares
shall be deemed to be personal property giving only the rights provided in this
instrument. Every Shareholder by virtue of having become a Shareholder shall be
held to have expressly assented and agreed to the terms hereof and to have
become a party hereto. The death of a Shareholder during the existence of the
Fund shall not operate to terminate the Fund, nor entitle the representative of
any deceased Shareholder to an accounting or to take any action in court or
elsewhere against the Fund or the Trustees, but entitles such representative
only to the rights of said deceased Shareholder under this Fund. Ownership of
Shares shall not entitle the Shareholder to any title in or to the whole or any
part of the Fund Property or right to call for a partition or division of the
same or for an accounting, nor shall the ownership of Shares constitute the
Shareholders as partners. Neither the Fund nor the Trustees, nor any officer,
employee or agent of the Fund, shall have any power to bind personally any
Shareholders, nor, except as specifically provided herein, to call upon any
Shareholder for the payment of any sum of money or assessment whatsoever other
than such as the Shareholder may at any time personally agree to pay.
Section 3.5. Power of Board of Trustees to Change Provisions Relating to
Shares. Notwithstanding any other provisions of this Declaration of Trust and
without limiting the power of the Board of Trustees to amend the Declaration of
Trust as provided elsewhere herein, the Board of Trustees shall have the power
to amend this Declaration of Trust or any resolution of the Trustees
establishing the terms of any Class or Series , at any time and from time to
time, in such manner as the Board of Trustees may determine in their sole
discretion, without the need for Shareholder action, so as to add to, delete,
replace or otherwise modify any provisions relating to the Shares contained in
this Declaration of Trust or any resolution of the Trustees, allocate or
reallocate assets, liabilities or expenses attributable to a Class or Series,
change the designation of any Class or Series hereby or hereafter created or
otherwise change the special or relative rights of any Class or Series, provided
that before adopting any such amendment without Shareholder approval, the Board
of Trustees shall determine that it is consistent with the fair and equitable
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treatment of all Shareholders and that Shareholder approval is not otherwise
required by the 1940 Act or other applicable law or by the terms of any
resolution of the Trustees, contract or document establishing the terms of any
Class or Series of Shares.
Subject to the foregoing Paragraph, the Board of Trustees may amend the
Declaration of Trust to amend any of the provisions set forth in paragraphs (a)
through (i) of Section 3.6 hereof.
Section 3.6. Establishment and Designation of Classes. As contemplated by
Section 3.1, the variations in the relative rights and preferences as between
the Classes of Common Stock and Preferred Stock shall be fixed and determined by
the Trustees; provided, that all Common Stock or Preferred Stock of the Fund or
of any Series shall be identical to all other Common Shares of the Fund or
Preferred Stock of the same Series, as the case may be, except that, to the
extent permitted by the 1940 Act, there may be variations between different
Classes as to allocation of expenses, right of redemption, special and relative
rights and preferences as to dividends and distributions and on liquidation,
conversion rights, and conditions under which the several Classes shall have
separate voting rights. Any Class of Preferred Stock shall have such rights and
preferences and priorities over the Common Stock as may be established by the
terms thereof. All references to Shares in this Declaration shall be deemed to
be Shares of any or all Classes as the context may require.
The following provisions shall be applicable to any division of Shares of
the Fund into one or more Classes or Series:
1. All provisions herein relating to the Shares, or any Class of Shares
of the Fund, shall apply equally to each Class of Shares of the Fund
or of any Series of the Fund, except as the context requires
otherwise.
2. The number of Shares of each Class that may be issued shall be
unlimited. The Trustees may classify or reclassify any Shares or any
Class of any Shares into one or more other Classes that may be
established and designated from time to time. The Fund may purchase
and hold Shares as treasury shares, reissue such treasury shares for
such consideration and on such terms as the Trustees may determine, or
cancel any Shares of any Class acquired by the Fund at the Trustees'
discretion from time to time.
3. Liabilities, expenses, costs, charges and reserves related to the
distribution of, and other identified expenses that should properly be
allocated to, the Shares of a particular Class or Series within the
Class may be charged to and borne solely by such Class or Series, and
the bearing of expenses solely by a Class of Shares or Series may be
appropriately reflected (in a manner determined by the Trustees) and
cause differences in the net asset value attributable to, and the
dividend, redemption and liquidation rights of, the Shares of
different Classes or Series. Each allocation of liabilities, expenses,
costs, charges and reserves by the Trustees shall be conclusive and
binding upon the Shareholders of all Classes for all purposes.
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4. The establishment and designation of any Class or Series of Shares
shall be effective upon resolution by a majority of the Trustees,
adopting a resolution which sets forth such establishment and
designation and the relative rights and preferences of such Class or
Series. Each such resolution shall be incorporated herein by reference
upon adoption. The Trustees may, by resolution of a majority of the
Trustees, abolish any Class or Series and the establishment and
designation thereof.
Section 3.7. Establishment and Designation of Series. The establishment and
designation of any Series of Shares within a Class shall be effective upon the
resolution by a majority of the Trustees, adopting a resolution which sets forth
such establishment and designation and the relative rights and preferences of
such Series. Each such resolution shall be incorporated herein by reference upon
adoption.
Shares of each Series of Common Stock established pursuant to this Section
3.6, unless otherwise provided in the resolution establishing such Series, shall
have the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series of Common Stock. All
consideration received by the Fund for the issue or sale of Shares of a
particular Series of Common Stock, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof from whatever source derived, including, without limitation,
any proceeds derived from the sale, exchange or liquidation of such assets, and
any funds or payments derived from any reinvestment of such proceeds in whatever
form the same may be, shall irrevocably be held with respect to that Series for
all purposes, subject only to the rights of creditors, and the prior rights of
the holders of the Fund's Preferred Stock and shall be so recorded upon the
books of account of the Fund. Such consideration, assets, income, earnings,
profits and proceeds thereof, from whatever source derived, including, without
limitation, any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of such
proceeds, in whatever form the same may be, are herein referred to as "assets
held with respect to" that Series. In the event that there are any assets,
income, earnings, profits and proceeds thereof, funds or payments which are not
readily identifiable as assets held with respect to any particular Series
(collectively "General Assets"), the Trustees shall allocate such General Assets
to, between or among any one or more of the Series of Common Stock in such
manner and on such basis as the Trustees, in their sole discretion, deem fair
and equitable, and any General Asset so allocated to a particular Series shall
be held with respect to that Series. Each such allocation by the Trustees shall
be conclusive and binding upon the Shareholders of all Series of Common Stock
for all purposes.
(b) Liabilities Held with Respect to a Particular Series of Common Stock.
The assets of the Fund held with respect to each particular Series of Common
Stock shall be charged against the liabilities of the Fund held with respect to
that Series and all expenses, costs, charges and reserves attributable to that
Series, and any general liabilities of the Fund which are not readily
identifiable as being held with respect to any particular Series shall be
allocated and charged by the Trustees to and among any one or more of the Series
in such manner and on such basis as the Trustees in their sole discretion deem
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fair and equitable. The liabilities, expenses, costs, charges, and reserves so
charged to a Series are herein referred to as "liabilities held with respect to"
that Series. Each allocation of liabilities, expenses, costs, charges and
reserves by the Trustees shall be conclusive and binding upon the holders of all
Series of Common Stock for all purposes. All Persons who have extended credit
which has been allocated to a particular Series, or who have a claim or contract
which has been allocated to any particular Series, shall look, and shall be
required by contract to look exclusively, to the assets of that particular
Series for payment of such credit, claim, or contract. In the absence of an
express contractual agreement so limiting the claims of such creditors,
claimants and contract providers, each creditor, claimant and contract provider
will be deemed nevertheless to have impliedly agreed to such limitation unless
an express provision to the contrary has been incorporated in the written
contract or other document establishing the claimant relationship.
(c) Dividends, Distributions, Redemptions, and Repurchases of Common Stock.
Notwithstanding any other provisions of this Declaration of Trust, including,
without limitation, Article VII, no dividend or distribution including, without
limitation, any distribution paid upon termination of the Fund or of any Series
of Common Stock, nor any redemption or repurchase of, the Shares of any such
Series shall be effected by the Fund other than from the assets held with
respect to such Series, nor, except as specifically provided in Section 3.8
hereof, shall any Shareholder of any particular Series otherwise have any right
or claim against the assets held with respect to any other Series of Common
Stock except to the extent that such Shareholder has such a right or claim
hereunder as a Shareholder of such other Series. The Trustees shall have full
discretion, to the extent not inconsistent with the 1940 Act, to determine which
items shall be treated as income and which items as capital; and each such
determination and allocation shall be conclusive and binding upon the
Shareholders.
(d) Equality. All the Shares of each particular Series of Common Stock
shall represent an equal proportionate undivided interest in the assets held
with respect to that Series (subject to the liabilities held with respect to
that Series and such rights and preferences as may have been established and
designated with respect to each Series as may be permitted by the 1940 Act), and
each Share of any particular Series shall be equal to each other Share of that
Series.
(e) Fractions. Any fractional Share of a Series shall carry proportionately
all the rights and obligations of a whole share of that Series, including rights
with respect to voting, receipt of dividends and distributions, redemption of
Shares and termination of the Fund.
(f) Exchange Privilege. The Trustees shall have the authority to provide
that the holders of Shares of any Series of Common Stock shall have the right to
exchange said Shares for Shares of one or more other Series of Shares of Common
Stock in accordance with such requirements and procedures as may be established
by the Trustees.
(g) Combination of Series. The Trustees shall have the authority, without
the approval of the Shareholders of any Series unless otherwise required by
applicable law, or by the terms establishing a Series, to combine the assets and
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liabilities held with respect to any two or more Series into assets and
liabilities held with respect to a single Series.
(h) Elimination of Series. At any time that there are no Shares outstanding
of any particular Series previously established and designated, the Trustees may
by resolution of a majority of the Trustees abolish that Series and rescind the
establishment and designation thereof.
Section 3.8. Indemnification of Shareholders. If any Shareholder or former
Shareholder shall be exposed to liability by reason of a claim or demand
relating to his or her being or having been a Shareholder, and not because of
his or her acts or omissions, the Shareholder or former Shareholder (or his or
her heirs, executors, administrators, or other legal representatives or in the
case of a corporation or other entity, its corporate or other general successor)
shall be entitled to be held harmless from and indemnified out of the assets of
the Fund against all loss and expense arising from such claim or demand.
ARTICLE IV.
The Board of Trustees
Section 4.1. Number, Election and Tenure. The number of Trustees
constituting the Board of Trustees shall be fixed from time to time by a written
instrument signed, or by resolution approved at a duly constituted meeting, by a
majority of the Board of Trustees, provided, however, that the number of
Trustees shall in no event be fewer than one (1) nor more than fifteen (15). The
Board of Trustees, by action of a majority of the Trustees at a duly constituted
meeting, may fill vacancies in the Board of Trustees, appoint Trustees to the
extent that the 1940 Act requires that a specified number of Trustees represent
the holders of a class of senior security or remove Trustees with or without
cause. The Shareholders may elect Trustees at any meeting of Shareholders called
by the Trustees for that purpose by a vote, and in accordance with the
procedures, as set forth in the Bylaws and in compliance with the provisions of
the 1940 Act to the extent it requires that a specified number of Trustees
represent the holders of a class of senior security. Each Trustee shall serve
during the continued lifetime of the Fund until he or she dies, resigns, is
declared bankrupt or incompetent by a court of appropriate jurisdiction, or is
removed, or, if sooner, until the next meeting of Shareholders called for the
purpose of electing Trustees and until the election and qualification of his or
her successor. Any Trustee may resign at any time by written instrument signed
by him and delivered to any officer of the Fund or to a meeting of the Trustees.
Such resignation shall be effective upon receipt unless specified to be
effective at some other time. Except to the extent expressly provided in a
written agreement with the Fund, no Trustee resigning and no Trustee removed
shall have any right to any compensation for any period following his or her
resignation or removal, or any right to damages on account of such removal. A
meeting of Shareholders for the purpose of electing one or more Trustees may be
called (i) by the Trustees upon their own vote, or (ii) upon the demand of
Shareholders owning a majority of the Shares of the Fund entitled to vote on the
election of a particular Trustee.
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Section 4.2. Effect of Death, Resignation, ETC. of a Trustee. The death,
declination, resignation, retirement, removal, or incapacity of one or more
Trustees, or all of them, shall not operate to annul the Fund or to revoke any
existing agency created pursuant to the terms of this Declaration of Trust.
Whenever a vacancy in the Board of Trustees shall occur, until such vacancy is
filled as provided in Section 4.1 hereof, the Trustees in office, regardless of
their number, shall have all the powers granted to the Trustees and shall
discharge all the duties imposed upon the Trustees by this Declaration of Trust.
As conclusive evidence of such vacancy, a written instrument certifying the
existence of such vacancy may be executed by an officer of the Fund or by a
majority of the Board of Trustees. In the event of the death, declination,
resignation, retirement, removal, or incapacity of all the Trustees within a
short period of time and without the opportunity for at least one Trustee being
able to appoint additional Trustees to fill vacancies, the Fund's Investment
Manager is empowered to appoint new Trustees subject to the provisions of
Section 16(a) of the 1940 Act.
Section 4.3. Powers. Subject to the provisions of this Declaration of
Trust, the business of the Fund shall be managed by the Board of Trustees, and
such Board shall have all powers necessary or convenient to carry out that
responsibility including the power to engage in securities transactions of all
kinds on behalf of the Fund. Trustees in all instances shall act as principals,
and are and shall be free from the control of the Shareholders. The Trustees
shall have full power and authority to do any and all acts and to make and
execute any and all contracts and instruments that they may consider necessary
or appropriate in connection with the administration of the Fund. Without
limiting the foregoing, the Trustees may: adopt Bylaws not inconsistent with
this Declaration of Trust providing for the regulation and management of the
affairs of the Fund and may amend and repeal them; fill vacancies in or remove
from their number, and may elect and remove such officers and appoint and
terminate such agents as they consider appropriate; appoint from their own
number and establish and terminate one or more committees consisting of one or
more Trustees which may exercise the powers and authority of the Board of
Trustees to the extent that the Trustees determine; employ one or more
custodians of the assets of the Fund and may authorize such custodians to employ
subcustodians and to deposit all or any part of such assets in a system or
systems for the central handling of securities or with a Federal Reserve Bank,
retain a transfer agent or a shareholder servicing agent, or both; provide for
the issuance and distribution of Shares by the Fund directly or through one or
more Principal Underwriters or otherwise; redeem, repurchase and transfer Shares
pursuant to applicable law; set record dates for the determination of
Shareholders with respect to various matters; declare and pay dividends and
distributions to Shareholders from the assets of the Fund; establish from time
to time in accordance with Sections 3.6 and 3.7, any Class or Series of Shares;
and in general delegate such authority as they consider desirable to any officer
of the Fund, to any committee of the Trustees and to any agent or employee of
the Fund or to any such custodian, transfer or shareholder servicing agent, or
Principal Underwriter. Any determination as to what is in the interests of the
Fund made by the Trustees in good faith shall be conclusive. In construing the
provisions of this Declaration of Trust, the presumption shall be in favor of a
grant of power to the Trustees. Unless otherwise specified or required by law,
any action by the Board of Trustees shall be deemed effective if approved or
taken by a majority of the Trustees then in office. Any action required or
permitted to be taken at any meeting of the Board of Trustees, or any committee
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thereof, may be taken without a meeting if all members of the Board of Trustees
or committee (as the case may be) consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of the Board of Trustees,
or committee.
Without limiting the foregoing, the Fund shall have power and authority:
(a) To invest and reinvest cash, to hold cash uninvested, and to subscribe
for, invest in, reinvest in, purchase or otherwise acquire, own, hold, pledge,
sell, assign, transfer, exchange, distribute, write options on, lend or
otherwise deal in or dispose of contracts for the future acquisition or delivery
of fixed income or other securities, and securities of every nature and kind,
including, without limitation, all types of bonds, loans, debentures, stocks,
preferred stocks, negotiable or non-negotiable instruments, obligations,
evidences of indebtedness, certificates of deposit or indebtedness, commercial
paper, repurchase agreements, bankers' acceptances, and other securities of any
kind, issued, created, guaranteed, or sponsored by any and all Persons,
including, without limitation, states, territories, and possessions of the
United States and the District of Columbia and any political subdivision,
agency, or instrumentality thereof, any foreign government or any political
subdivision of the U.S. Government or any foreign government, or any
international instrumentality, or by any bank or savings institution, or by any
corporation or organization organized under the laws of the United States or of
any state, territory, or possession thereof, or by any corporation or
organization organized under any foreign law, or in "when issued" contracts for
any such securities, and to exercise any and all rights, powers, and privileges
of ownership or interest in respect of any and all such investments of every
kind and description, including, without limitation, the right to consent and
otherwise act with respect thereto, with power to designate one or more Persons
to exercise any of said rights, powers, and privileges in respect of any of said
instruments;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, lease, or write
options with respect to or otherwise deal in any property rights relating to any
or all of the assets of the Fund, subject to any requirements of the 1940 Act;
(c) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and deliver
proxies or powers of attorney to such person or persons as the Trustees shall
deem proper, granting to such person or persons such power and discretion with
relation to securities or property as the Trustees shall deem proper;
(d) To exercise powers and right of subscription or otherwise which in any
manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating that it is
trust property, whether in bearer, unregistered or other negotiable form, or in
its own name or in the name of a custodian or subcustodian or a nominee or
nominees or otherwise or to authorize the custodian or a subcustodian or a
nominee or nominees to deposit the same in a securities depository, subject in
each case to proper safeguards according to the usual practice of investment
companies or any rules or regulations applicable thereto;
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(f) To consent to, or participate in, any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security which is
held in the Fund; to consent to any contract, lease, mortgage, purchase or sale
of property by such corporation or issuer; and to pay calls or subscriptions
with respect to any security held in the Fund;
(g) 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;
(h) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Fund or any matter in controversy, including but not limited to
claims for taxes;
(i) To enter into joint ventures, general or limited partnerships and any
other combinations or associations;
(j) To borrow funds or other property in the name of the Fund exclusively
for Fund purposes;
(k) To endorse or guarantee the payment of any notes or other obligations
of any Person; to make contracts of guaranty or suretyship, or otherwise assume
liability for payment thereof;
(l) To purchase and pay for entirely out of Fund Property such insurance as
the Trustees may deem necessary or appropriate for the conduct of the business,
including, without limitation, insurance policies insuring the assets of the
Fund or payment of distributions and principal on its portfolio investments, and
insurance policies insuring the Shareholders, Trustees, officers, employees,
agents, investment advisers, principal underwriters, or independent contractors
of the Fund, individually against all claims and liabilities of every nature
arising by reason of holding Shares, holding, being or having held any such
office or position, or by reason of any action alleged to have been taken or
omitted by any such Person as Trustee, officer, employee, agent, investment
adviser, principal underwriter, or independent contractor, including any action
taken or omitted that may be determined to constitute negligence, whether or not
the Fund would have the power to indemnify such Person against liability; and
(m) To adopt, establish and carry out pension, profit-sharing, share bonus,
share purchase, savings, thrift and other retirement, incentive and benefit
plans, trusts and provisions, including the purchasing of life insurance and
annuity contracts as a means of providing such retirement and other benefits,
for any or all of the Trustees, officers, employees and agents of the Fund.
The Fund shall not be limited to investing in obligations maturing before
the possible termination of the Fund. The Fund shall not in any way be bound or
limited by any present or future law or custom in regard to investment by
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fiduciaries. The Fund shall not be required to obtain any court order to deal
with any assets of the Fund or take any other action hereunder.
Section 4.4. Payment of Expenses by the Fund. The Trustees are authorized
to pay or cause to be paid out of the principal or income of the Fund, or partly
out of the principal and partly out of income, and to charge or allocate the
same to, between or among such one or more of the Classes or Series that may be
established or designated pursuant to Section 3.6 or Section 3.7 hereof, as they
deem fair, all expenses, fees, charges, taxes and liabilities incurred or
arising in connection with the Fund, or in connection with the management
thereof, including, but not limited to, the Trustees' compensation and such
expenses and charges for the services of the Fund's officers, employees,
investment adviser, principal underwriter, auditors, counsel, custodian,
transfer agent, Shareholder servicing agent, and such other agents or
independent contractors and such other expenses and charges as the Trustees may
deem necessary or proper to incur.
Section 4.5. Payment of Expenses by Shareholders. The Trustees shall have
the power, as frequently as they may determine, to cause each Shareholder, or
each Shareholder of any particular Class or Series, to pay directly, in advance
or arrears, for charges of the Fund's custodian or transfer, Shareholder
servicing or similar agent, an amount fixed from time to time by the Trustees,
by setting off such charges due from such Shareholder from declared but unpaid
dividends owed such Shareholder and/or by reducing the number of shares in the
account of such Shareholder by that number of full and/or fractional Shares
which represents the outstanding amount of such charges due from such
Shareholder.
Section 4.6. Ownership of Assets of the Fund. Title to all of the assets of
the Fund shall at all times be considered as vested in the Fund, except that the
Trustees shall have power to cause legal title to any Fund Property to be held
by or in the name of one or more of the Trustees, or in the name of the Fund, or
in the name of any other Person as nominee, on such terms as the Trustees may
determine. The right, title and interest of the Trustees in the Fund Property
shall vest automatically in each Person who may hereafter become a Trustee. Upon
the resignation, removal or death of a Trustee, he or she shall automatically
cease to have any right, title or interest in any of the Fund Property, and the
right, title and interest of such Trustee in the Fund Property shall vest
automatically in the remaining Trustees. Such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered.
Section 4.7. Service Contracts.
(a) Subject to such requirements and restrictions as may be set forth in
the Bylaws, the Trustees may, at any time and from time to time, contract for
exclusive or nonexclusive advisory, management and/or administrative services
for the Fund with any corporation, trust, association or other organization; and
any such contract may contain such other terms as the Trustees may determine,
including without limitation, authority for the Investment Manager or
administrator to determine from time to time without prior consultation with the
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Trustees what investments shall be purchased, held, sold or exchanged and what
portion, if any, of the assets of the Fund shall be held uninvested and to make
changes in the Fund's investments, or such other activities as may specifically
be delegated to such party.
(b) The Trustees may also, at any time and from time to time, contract with
any corporation, trust, association or other organization, appointing it
exclusive or nonexclusive distributor or Principal Underwriter for the Shares or
other securities to be issued by the Fund. Every such contract shall comply with
such requirements and restrictions as may be set forth in the Bylaws; and any
such contract may contain such other terms as the Trustees may determine.
(c) The Trustees are also empowered, at any time and from time to time, to
contract with any corporation, trust, association or other organization,
appointing it or them the custodian, transfer agent and/or shareholder servicing
agent for the Fund. Every such contract shall comply with such requirements and
restrictions as may be set forth in the Bylaws or stipulated by resolution of
the Trustees.
(d) The Trustees are further empowered, at any time and from time to time,
to contract with any entity to provide such other services to the Fund, as the
Trustees determine to be in the interests of the Fund.
(e) The fact that:
(i) any of the Shareholders, Trustees, or officers of the Fund is a
shareholder, director, officer, partner, trustee, employee, Manager,
Principal Underwriter, distributor, or affiliate or agent of or for any
corporation, trust, association, or other organization, or for any parent
or affiliate of any organization with which an advisory, management or
administration contract, or principal underwriter's or distributor's
contract, or transfer, shareholder servicing or other type of service
contract may have been or may hereafter be made, or that any such
organization, or any parent or affiliate thereof, is a Shareholder or has
an interest in the Fund, or that
(ii) any corporation, trust, association or other organization with
which an advisory, management or administration contract or principal
underwriter's or distributor's contract, or transfer, shareholder servicing
or other type of service contract may have been or may hereafter be made
also has an advisory, management or administration contract, or principal
underwriter's or distributor's contract, or transfer, shareholder servicing
or other service contract with one or more other corporations, trust,
associations, or other organizations, or has other business or interests,
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Fund from voting upon or executing the
same, or create any liability or accountability to the Fund or its Shareholders,
provided approval of each such contract is made pursuant to the requirements of
the 1940 Act.
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ARTICLE V.
Shareholders' Voting Powers and Meetings
Section 5.1. Voting Powers. The Shareholders shall have power to vote only
(i) for the election or removal of Trustees as provided in Section 4.1 hereof,
and (ii) with respect to such additional matters relating to the Fund as may be
required by this Declaration of Trust, the Bylaws, the terms of any contract,
document or resolution of the Trustees establishing the terms of any Class or
Series of Shares, by applicable law, or any registration of the Fund with the
Commission (or any successor agency) or any state, or as the Trustees may
consider necessary or desirable. Each whole Share shall be entitled to one vote
as to any matter on which it is entitled to vote and each fractional Share shall
be entitled to a proportionate fractional vote. There shall be no cumulative
voting in the election of Trustees. Shares may be voted in person or by proxy. A
proxy with respect to Shares held in the name of two or more persons shall be
valid if executed by any one of them unless at or prior to exercise of the proxy
the Fund receives a specific written notice to the contrary from any one of
them. A proxy purporting to be executed by or on behalf of a Shareholder shall
be deemed valid unless challenged at or prior to its exercise and the burden of
proving invalidity shall rest on the challenger.
On any matter submitted to a vote of Shareholders, all Shares of the Fund
then entitled to vote shall be voted as one class except (i) when required by
the 1940 Act and (ii) when the Trustees have determined that the matter either
affects only the interest of one Class or one or more Series within a Class or
affects such Class or Series adversely, then either Shareholders of such Class
or Series shall be the only Class or Series entitled to vote thereon or they
shall be entitled to vote separately as a Class or Series. Consistent with the
foregoing, holders of any Preferred Stock shall vote separately as a class (i)
on the adoption of any plan of reorganization that would adversely affect the
Preferred Stock, (ii) with respect to any action requiring a vote of security
holders pursuant to Section 13(a) of the 1940 Act, as amended, (iii) for the
election of Trustees representing the holders of Preferred Stock as required by
Section 18(a)(2) of the 1940 Act, and (iv) on any other matter as required by
law or as provided by the Trustees.
Section 5.2. Meetings. Meetings of the Shareholders may be called by the
Trustees or the Shareholders for the purpose of electing Trustees as provided in
Section 4.1 hereof. Meetings of the Shareholders may be called by the Trustees
for any other purpose as may be prescribed by law, by this Declaration of Trust
or by the Bylaws, or for the purpose of taking action upon any other matter
deemed by the Trustees to be necessary or desirable. A meeting of Shareholders
may be held at any place designated by the Trustees. Written notice of any
meeting of Shareholders shall be given or caused to be given by the Trustees in
accordance with the Bylaws.
Section 5.3. Quorum and Required Vote. Except when a larger quorum is
required by applicable law, by the Bylaws or by this Declaration of Trust, forty
percent (40%) of the Shares entitled to vote shall constitute a quorum at a
Shareholders' meeting. When any one or more Classes or Series is to vote as a
single class separate from any other Shares, forty percent (40%) of the Shares
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of each such Class or Series entitled to vote shall constitute a quorum at a
Shareholders' meeting of that Class or Series. Any meeting of Shareholders may
be adjourned from time to time by a majority of the votes properly cast upon the
question of adjourning a meeting to another date and time, whether or not a
quorum is present, and the meeting may be held as adjourned as provided in the
Bylaws. When a quorum is present at any meeting, a majority of the Shares voted
shall decide any questions and a plurality shall elect a Trustee, except when a
larger vote is required by any provisions of this Declaration of Trust or the
Bylaws or by applicable law.
Section 5.4. Action by Written Consent. Any action taken by Shareholders
may be taken without a meeting if Shareholders holding a majority of the Shares
entitled to vote on the matter (or such larger proportion thereof as shall be
required by any express provision of this Declaration of Trust or by the Bylaws)
and holding a majority (or such larger proportion as aforesaid) of the Shares of
any Class or Series entitled to vote separately on the matter consent to the
action in writing and such written consents are filed with the records of the
meetings of Shareholders. Such consent shall be treated for all purposes as a
vote taken at a meeting of Shareholders.
Section 5.5. Record Dates. For the purpose of determining the Shareholders
of any Class or Series who are entitled to vote or act any meeting or any
adjournment thereof or to give consent to any action without a meeting, the
Trustees may from time to time fix a date, which shall be not more than ninety
(90) days nor fewer than seven (7) days before the date of any meeting of
Shareholders, as the record date for determining the Shareholders of such series
or class having the right to notice of and to vote at such meeting and any
adjournment thereof, and in such case only Shareholders of record on such record
date shall have such right, notwithstanding any transfer of Shares on the books
of the Fund after the record date. For the purpose of determining the
Shareholders of any Class or Series who are entitled to receive payment of any
dividend or of any other distribution, the Trustees may from time to time fix a
date, which shall be before the date for the payment of such dividend or such
other payment, as the record date for determining the Shareholders of such Class
or Series having the right to receive such dividend or distribution. Without
fixing a record date, the Trustees may for voting and/or distribution purposes
close the register or transfer books for one or more Class or Series for all or
any part of the period between a record date and a meeting of Shareholders or
the payment of a distribution. Nothing in this Section shall be construed as
precluding the Trustees from setting different record dates for different
Classes or Series.
Section 5.6. Additional Provisions. The Bylaws may include further
provisions for Shareholders' votes and meetings and related matters.
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ARTICLE VI.
Redemptions and Repurchases of Shares
Section 6.1. Redemption and Repurchase of Shares. From time to time the
Fund may redeem or repurchase its Shares, all upon such terms and conditions as
may be determined by the Trustees and subject to any applicable provisions of
the 1940 Act or any exemption therefrom. The Fund may require Shareholders to
pay a withdrawal charge, a sales charge, or any other form of charge to the
Fund, to the underwriter or to any other person designated by the Trustees upon
redemption or repurchase of Shares in such amount as shall be determined from
time to time by the Trustees. The Fund may also charge a redemption or
repurchase fee in such amount as may be determined from time to time by the
Trustees.
The Fund shall repurchase or redeem the Shares upon the appropriately
verified written application of the record holder thereof (or upon such other
form of request as the Trustees may determine) at such office or agency as may
be designated from time to time for that purpose by the Fund. The Trustees may
from time to time specify additional conditions, not inconsistent with the 1940
Act or any exemption therefrom, regarding the redemption or repurchase of Shares
in the Fund.
Section 6.2. Price. Subject to Section 6.1 hereof, Shares of Common Stock
may be redeemed or repurchased at their net asset value or at such other price
as is in compliance with the 1940 Act or any exemption therefrom, which may be
reduced by any redemption fee, withdrawal charge, or sales charge authorized by
the Trustees. Net asset value shall be determined as set forth in Section 7.1
hereof as of such time as the Trustees shall have theretofore prescribed by
resolution. Subject to Section 6.1, Shares of Preferred Stock may be redeemed on
such terms as are stipulated in the document or resolution of the Trustees
establishing their terms.
Section 6.3. Manner of Payment. Payment for Shares redeemed or repurchased
shall be made in cash or in property out of the assets of the relevant Class or
Series of the Fund to the Shareholder of record at such time and in the manner,
not inconsistent with the 1940 Act or other applicable laws.
ARTICLE VII.
Net Asset Value and Distributions
Section 7.1. Determination of Net Asset Value, Net Income, and
Distributions. Subject to Section 3.6 hereof, the Trustees, in their sole
discretion, may prescribe and shall set forth in the Bylaws or in a duly adopted
resolution of the Trustees such bases and time for determining the per Share or
net asset value of the Shares of Common Stock or net income attributable to the
Shares of Common Stock, and the declaration and payment of dividends and
distributions on the Shares of each Class and Series, as they may deem necessary
or desirable.
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ARTICLE VIII.
Compensation and Limitation of Liability of Trustees
Section 8.1. Compensation. The Trustees as such shall be entitled to
reasonable compensation from the Fund, and they may fix the amount of such
compensation. Nothing herein shall in any way prevent the employment of any
Trustee for advisory, management, legal, accounting, investment banking or other
services and payment for the same by the Fund.
Section 8.2. Indemnification and Limitation of Liability. The Trustees
shall not be responsible or liable in any event for any neglect or wrong-doing
of any officer, agent, employee, Manager or Principal Underwriter of the Fund,
nor shall any Trustee be responsible for the act or omission of any other
Trustee, and the Fund out of its assets shall indemnify, defend and hold
harmless each and every Trustee from and against any and all claims and demands
whatsoever arising out of or related to each Trustee's performance of his or her
duties as a Trustee of the Fund; PROVIDED, HOWEVER, that the Fund shall not
indemnify a Trustee against liability caused by reason of willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of his or her office.
Every note, bond, contract, instrument, certificate or undertaking, and
every other act or thing whatsoever issued, executed or done by or on behalf of
the Fund or the Trustees or any of them, in connection with the Fund shall be
conclusively deemed to have been issued, executed or done only in or with
respect to their or his or her capacity as Trustees or a Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
Section 8.3. Trustee's Good Faith Action; Expert Advice; No Bond or Surety.
The exercise by the Trustees of their powers and discretion hereunder shall be
binding upon everyone interested. A Trustee shall be liable to the Fund and to
any Shareholder solely for his or her own willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of Trustee, and shall not be liable for errors of judgment or mistakes of
fact or law. In performing their duties, the Trustees may rely on any
information, advice, opinion, report or statement (including without limiting
the generality of the foregoing any financial statement or other financial data
and any interpretation of the meaning and operation of the Fund's governing
documents), prepared or presented by an officer or employee of the Fund, or
prepared or presented by a lawyer, certified public accountant or other person
as a matter which a Trustee believes to be within the person's professional or
expert competence and the Trustees shall be under no liability for any act or
omission in accordance with any such information advice, opinion, report or
statement nor failing to rely on or follow such information, advice, opinion,
report or statement. The Trustees shall not be required to give any bond as
such, nor any surety if a bond is required.
Section 8.4. Insurance. The Trustees shall be entitled and empowered to the
fullest extent permitted by law to purchase with Fund assets insurance for
liability and for all expenses reasonably incurred or paid or expected to be
paid by a Trustee in connection with any claim, action, suit or proceeding in
which he or she becomes involved by virtue of his or her capacity or former
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capacity with the Fund, whether or not the Fund would have the power to
indemnify him or her against such liability under the provisions of this
Article.
ARTICLE IX.
Miscellaneous
Section 9.1. Liability of Third Persons Dealing with Trustees. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Fund or upon its
order.
Section 9.2. Termination of Fund or Series. Unless terminated or liquidated
as provided herein, the Fund shall continue without limitation of time. The
Fund, and any Class or Series may be terminated or liquidated by the Trustees
without any action by the Shareholders upon written notice to the affected
Shareholders.
Upon termination of the Fund (or any Class or Series, as the case may be),
after paying or otherwise providing for all charges, taxes, expenses and
liabilities held, severally, with respect to such Class or Series, as the case
may be, whether due or accrued or anticipated as may be determined by the
Trustees, the Fund shall, in accordance with such procedures as the Trustees
consider appropriate, reduce the remaining assets held severally, with respect
to such Class and Series, to distributable form in cash or shares or other
securities, or any combination thereof, and distribute the proceeds held with
respect to such Class and Series to the Shareholders of that Class or Series,
ratably according to the number of Shares of that Class or Series held by the
several Shareholders on the date of termination.
Section 9.3. Merger, Consolidation, Sale of Assets. The Trustees may cause
(i) the Fund or one or more of its Classes or Series to be merged into or
consolidated with another business trust or any other business entity, (ii) the
Shares of the Fund or any Class or Series to be converted into beneficial
interests in another business trust (or class or series thereof) created
pursuant to this Section 9.3, (iii) the Shares to be exchanged under or pursuant
to any state or federal statute, or (iv) the sale, lease, exchange, transfer,
pledge or other disposition of all or any of the assets of the Fund or any Class
or Series in their sole discretion and without Shareholder approval except as
required by Article X of this Declaration of Trust.
Section 9.4. Amendments.
(a) This Declaration of Fund may be restated and/or amended at any time by
an instrument in writing signed by a majority of the Trustees and, if required,
by approval of such amendment by Shareholders in accordance with Section 5.3
hereof. Any such restatement and/or amendment hereto shall be effective
immediately upon execution and approval. The Certificate of Trust of the Fund
may be restated and/or amended by a similar procedure, and any such restatement
and/or amendment shall be effective immediately upon filing with the Office of
the Secretary of State of the State of Delaware or upon such future date as may
be stated therein.
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(b) Notwithstanding Section 9.4 (a), Section 9.2 and 9.3 of this Article IX
may be amended only as contemplated by Section 10.6 herein.
Section 9.5. Filing of Copies, References, Headings. The original or a copy
of this instrument and of each restatement and/or amendment hereto shall be kept
at the office of the Fund where it may be inspected by any Shareholder. Anyone
dealing with the Fund may rely on a certificate by an officer of the Fund as to
whether or not any such restatements and/or amendments have been made and as to
any matters in connection with the Fund hereunder; and, with the same effect as
if it were the original, may rely on a copy certified by an officer of the Fund
to be a copy of this instrument or of any such restatements and/or amendments.
In this instrument and in any such restatements and/or amendments, references to
this instrument, and all expressions like "herein," "hereof" and hereunder,"
shall be deemed to refer to this instrument as amended or affected by any such
restatements and/or amendments. Headings are placed herein for convenience of
reference only and shall not be taken as a part hereof or control or affect the
meaning, construction or effect of this instrument. Whenever the singular number
is used herein, the same shall include the plural; and the neuter, masculine and
feminine genders shall include each other, as applicable. This instrument may be
executed in any number of counterparts each of which shall deemed an original.
Section 9.6. Applicable Law. This Agreement and Declaration of Trust is
created under and is to be governed by and construed and administered according
to the laws of the State of Delaware and the Delaware Business Trust Act, as
amended from time to time (the "Act"). The Fund shall be a Delaware business
trust pursuant to such Act, and without limiting the provisions hereof, the Fund
may exercise all powers which are ordinarily exercised by such a business trust.
Section 9.7. Provisions in Conflict with Law or Regulations.
(a) The provisions of the Declaration of Trust are severable, and if the
Trustees shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the regulated investment company
provisions of the Internal Revenue Code of 1986, as amended (or any successor
statute) or with other applicable laws and regulations, the conflicting
provision shall be deemed never to have constituted a part of the Declaration of
Trust; PROVIDED, HOWEVER, that such determination shall not affect any of the
remaining provisions of the Declaration of Trust or render invalid or improper
any action taken or omitted prior to such determination.
(b) If any provision of the Declaration of Trust shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of the
Declaration of Trust in any jurisdiction.
Section 9.8. Business Trust Only. It is the intention of the Trustees to
create a business trust pursuant to the Act, and thereby to create only the
relationship of Trustee and beneficial owners within the meaning of the Act
between the Trustees and each Shareholder. It is not the intention of the
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Trustees to create a general partnership, limited partnership, joint stock
association, corporation, bailment, or any form of legal relationship other than
a business trust pursuant to the Act. Nothing in this Declaration of Trust shall
be construed to make the Shareholders, either by themselves or with the
Trustees, partners or members of a joint stock association.
ARTICLE X.
Principal Shareholders Transactions
Section 10.1 Vote Required. Notwithstanding any other provision of this
Declaration of Trust and subject to the exceptions provided in paragraph 10.4 of
this Article X, when a Principal Shareholder is a party to one of the types of
transactions described in paragraph 10.3 of this Article X, the affirmative vote
or consent of the holders of not fewer than two-thirds of each Class and Series
of Shares outstanding and entitled to vote (with each such Class and Series
separately voting thereon or consenting thereto as a separate Class and Series),
shall be required. Such affirmative vote or consent shall be in addition to the
vote or consent of the holders of Shares otherwise required by law or hereafter
authorized by any agreement between the Fund and any national securities
exchange.
Section 10.2 Beneficial Owners. For the purposes of this Article X, in
addition to the Shares which a corporation, person or other entity beneficially
owns directly, (a) any corporation, person or other entity shall be deemed to be
the beneficial owner of any Shares (i) which it has the right to acquire
pursuant to any agreement or upon exercise of conversion rights or warrants, or
otherwise (but excluding Share options granted by the Fund) or (ii) which are
beneficially owned, directly or indirectly (including Shares deemed owned
through application of clause (i) above), by any other corporation, person or
entity with which it or its Affiliate or Associate has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of Shares, or which is its Affiliate, or Associate, and (b) the
outstanding Shares shall include Shares deemed owned through application of
clauses (i) and (ii) above but shall not include any other Shares which may be
issuable pursuant to any agreement, or upon exercise of conversion rights or
warrants, or otherwise.
Section 10.3 Covered Transactions. This Article X shall apply to the
following transactions:
(i) The merger or consolidation of the Fund or any subsidiary of the
Fund with or into any Principal Shareholder.
(ii) The issuance of any securities of the Fund to any Principal
Shareholder for cash.
(iii) The sale, lease or exchange of all or any substantial part of
the assets of the Fund, 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
-20-
series of similar transactions within a twelve-month period or assets sold
in the ordinary course of business).
(iv) The sale, lease or exchange to the Fund or any subsidiary
thereof, in exchange for securities of the Fund, of any assets of any
Principal Shareholder (except assets having an aggregate fair market value
of less than $1,000,000, aggregating for the purposes of such computation
all assets sold, leased or exchanged in any series of similar transactions
within a twelve-month period).
Section 10.4 Exceptions. The provisions of this Article X shall not be
applicable to (i) any of the transactions described in paragraph 10.3 of this
Article X if the Trustees shall by resolution have approved such transaction, or
(ii) any such transaction with any corporation of which a majority of the
outstanding shares of stock normally entitled to vote in elections of directors
is owned of record or beneficially by the Fund and its subsidiaries.
Section 10.5 Determination by Trustees. The Trustees shall have the power
and duty to determine for the purposes of this Article X, on the basis of
information known to the Fund, whether (i) a corporation, person or entity
beneficially owns more than five percent (5%) of the outstanding Shares, (ii) a
corporation, person or entity is an Affiliate or Associate of another, (iii) the
assets being acquired or leased to or by the Fund or any subsidiary thereof,
constitute a substantial part of the assets of the Fund and have an aggregate
fair market value of less than $1,000,000, and (iv) the memorandum of
understanding referred to in paragraph (d) hereof is substantially consistent
with the transaction covered thereby. Any such determination shall be conclusive
and binding for all purposes of this Article X.
Section 10.6 Limitation on Amendment. Notwithstanding Section 9.4 hereof,
this Article X may only be amended by the affirmative vote or consent of the
holders of two-thirds of each Class and Series of the Shares outstanding and
entitled to vote (with each Class and Series separately voting thereon or
consenting thereto as a separate Class or Series), unless such amendment is
unanimously recommended by the Trustees, in which case the vote or written
consent of the holders of a majority of the outstanding Shares of the Fund
(which voting securities shall, unless otherwise provided by the Trustees, or
required by the 1940 Act or other applicable law, vote together on the matter as
a single class) shall be sufficient to authorize such amendment.
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IN WITNESS WHEREOF, the Trustees named below do hereby make and enter into
this Agreement and Declaration of Trust as of the 15th day of December, 2000.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxxx
--------------------------------- ---------------------------------
Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxxxx
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx 0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
The principal place of business of the Fund is 0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx,
Xxxxxxxxxx, XX 00000.
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