EXHIBIT a.1
CALAMOS CONVERTIBLE AND HIGH INCOME FUND
AGREEMENT AND DECLARATION OF TRUST
This AGREEMENT AND DECLARATION OF TRUST is made on March 12, 2003 by
the undersigned (together with all other persons from time to time duly elected,
qualified and serving as Trustees in accordance with the provisions of Article
II hereof, the "Trustees") for the purpose of forming a Delaware statutory trust
in accordance with the provisions hereinafter set forth;
NOW, THEREFORE, the Trustees declare that all money and property
contributed to the Trust shall be held and managed IN TRUST pursuant to this
Agreement and Declaration of Trust.
ARTICLE I
NAME AND DEFINITIONS
Section 1. Name. The name of the Trust created by this Agreement and
Declaration of Trust is "Calamos Convertible and High Income Fund" and the
Trustees shall conduct the business of the Trust under that name or any other
name or names as they may from time to time determine.
Section 2. Definitions. Unless otherwise provided or required by the
context:
(a) "Administrator" means the party, other than the Trust, to
the contract described in Article III, Section 3 hereof.
(b) "By-Laws" means the By-Laws of the Trust adopted by the
Trustees, as amended from time to time, which By-Laws are expressly herein
incorporated by reference as part of the "governing instrument" within the
meaning of the Delaware Act.
(c) "Class" means any class of Shares of any Series
established and designated under or in accordance with the provisions of Article
V.
(d) "Commission," "Interested Person" and "Principal
Underwriter" have the meanings provided in the 1940 Act. Except as such term may
be otherwise defined by the Trustees in conjunction with the establishment of
any Series of Shares, the term "vote of a majority of the shares outstanding and
entitled to vote" shall have the same meaning as is assigned to the term "vote
of a majority of the outstanding voting securities" in the 1940 Act.
(e) "Covered Person" means a person so defined in Article IV,
Section 2.
(f) "Custodian" means any Person other than the Trust who has
custody of any Trust Property as required by Section 17(f) of the 1940 Act, but
does not include a system for the central handling of securities described in
said Section 17(f).
(g) "Declaration" shall mean this Agreement and Declaration of
Trust, as amended or restated from time to time. Reference in this 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.
(h) "Delaware Act" means the Delaware Statutory Trust Act, 12
Del. C.ss.ss.3801, et seq., as amended from time to time.
(i) "Distributor" means the party or parties, other than the
Trust, to the contract described in Article III, Section 1 hereof.
(j) "His" shall include the feminine and neuter, as well as
the masculine, genders.
(k) "Investment Adviser" means the party, other than the
Trust, to the contract described in Article III, Section 2 hereof.
(l) "Net Asset Value" means the net asset value of each Series
of the Trust, determined as provided in Article VI, Section 3.
(m) "Person" means and includes individuals, corporations,
partnerships, 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.
(n) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(o) "Series" means a series of Shares established and
designated under or in accordance with the provisions of Article V, each of
which shall be accounted for and maintained as a separate series or portfolio of
the Trust.
(p) "Shareholder" means a record owner of Outstanding Shares;
(q) "Shares" means the equal proportionate transferable units
of interest into which the beneficial interest of each Series and Class, as
applicable, of the Trust is divided from time to time (including whole Shares
and fractions of Shares). "Outstanding Shares" means Shares shown in the books
of the Trust or its transfer agent as then issued and outstanding, but does not
include Shares which have been repurchased or redeemed by the Trust and which
are held in the treasury of the Trust.
(r) "Transfer Agent" means any Person other than the Trust who
maintains the Shareholder records of the Trust, such as the list of
Shareholders, the number of Shares credited to each account, and the like.
(s) "Trust" means Calamos Convertible and High Income Fund
established hereby, and reference to the Trust, when applicable to one or more
Series, refers to that Series.
(t) "Trustee" means the person who has signed this Declaration
of Trust, so long as he shall continue in office in accordance with the terms
hereof, and all other persons who
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may from time to time be duly qualified and serving as Trustees in accordance
with Article II, in all cases in their capacities as Trustees hereunder.
(u) "Trust Property" means any and all property, real or
personal, tangible or intangible, which is from time to time owned or held by or
for the account of the Trust or any Series or the Trustees on behalf of the
Trust or any Series, each and every asset of which shall be allocated and belong
to a specific series to the exclusion of all other series.
(v) The "1940 Act" means the Investment Company Act of 1940,
as amended from time to time, including the rules and regulations of the
Commission thereunder and any order or orders thereunder which may from time to
time be applicable to the Trust.
ARTICLE II
THE TRUSTEES
Section 1. Management of the Trust. The business and affairs of the
Trust shall be managed by or under the direction of the Trustees, and they shall
have all powers necessary or desirable to carry out that responsibility. The
Trustees may execute all instruments and take all action they deem necessary or
desirable to promote the interests of the Trust. Any determination made by the
Trustees in good faith as to what is in the interests of the Trust shall be
conclusive. In construing the provisions of this Declaration, the presumption
shall be in favor of a grant of power to the Trustees.
Section 2. Powers. The Trustees in all instances shall act as
principals, free of the control of the Shareholders. The Trustees shall have
full power and authority to take or refrain from taking any action and to
execute any contracts and instruments that they may consider necessary or
desirable in the management of the Trust. The Trustees shall not in any way be
bound or limited by current or future laws or customs applicable to trust
investments, but shall have full power and authority to make any investments
which they, in their sole discretion, deem proper to accomplish the purposes of
the Trust. The Trustees may exercise all of their powers without recourse to any
court or other authority. Subject to any applicable limitation herein or in the
By-Laws or resolutions of the Trust, the Trustees shall have power and
authority, without limitation:
(a) To operate as and carry on the business of an investment
company, and exercise all the powers necessary and appropriate to the conduct of
such operations.
(b) To invest in, hold for investment, or reinvest in, cash;
securities of any type, including, but not limited to, common, preferred and
preference stocks; warrants; subscription rights; profit-sharing interests or
participations and all other contracts for or evidence of equity interests;
bonds, debentures, bills, time notes and all other evidences of indebtedness;
negotiable or non-negotiable instruments; government securities, including
securities of any state, municipality or other political subdivision thereof, or
any governmental or quasi-governmental agency or instrumentality; and money
market instruments including bank certificates of deposit, finance paper,
commercial paper, bankers' acceptances and all kinds of repurchase agreements,
of any corporation, company, trust, association, firm or other business
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organization however established, and of any country, state, municipality or
other political subdivision, or any governmental or quasi-governmental agency or
instrumentality; or any other security, property or instrument in which the
Trust or any of its Series shall be authorized to invest.
(c) To acquire (by purchase, subscription or otherwise), to
hold, to trade in and deal in, to acquire any rights or options to purchase or
sell, to sell or otherwise dispose of, to lend and to pledge any such
securities, to enter into repurchase agreements, reverse repurchase agreements,
firm commitment agreements, forward foreign currency exchange contracts,
interest rate mortgage or currency swaps and interest rate caps, floors and
collars, to purchase and sell options on securities, securities indices,
currency, swaps and other financial assets, futures contracts and options on
futures contracts of all descriptions and to engage in all types of hedging,
risk-management or income enhancement transactions.
(d) To exercise all rights, powers and privileges of ownership
or interest in all securities, repurchase agreements 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 securities, repurchase
agreements and other assets.
(e) 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, including cash or foreign currency, and any interest therein.
(f) To borrow money or other property in the name of the Trust
exclusively for Trust purposes and in this connection issue notes or other
evidence of indebtedness; to secure borrowings by mortgaging, pledging or
otherwise subjecting as security the Trust Property; and to endorse, guarantee,
or undertake the performance of any obligation or engagement of any other Person
and to lend Trust Property.
(g) 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; to do all acts and things designed to protect, preserve,
improve or enhance the value of such obligation or interest; and to guarantee or
become surety on any or all of the contracts, stocks, bonds, notes, debentures
and other obligations of any such corporation, company, trust, association or
firm.
(h) To adopt By-Laws not inconsistent with this Declaration
providing for the conduct of the business of the Trust and to amend and repeal
them to the extent such right is not reserved to the Shareholders.
(i) To elect and remove with or without cause such officers
and appoint and terminate such agents as they deem appropriate.
(j) To employ as custodian of any assets of the Trust, subject
to any provisions herein or in the By-Laws, one or more banks, trust companies
or companies that are members of a national securities exchange, or other
entities permitted by the Commission to serve as such.
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(k) To retain one or more transfer agents and shareholder
servicing agents, or both.
(l) To provide for the distribution of Shares either through a
Principal Underwriter as provided herein or by the Trust itself, or both, or
pursuant to a distribution plan of any kind.
(m) To set record dates in the manner provided for herein or
in the By-Laws.
(n) To delegate such authority as they consider desirable to
any officers of the Trust and to any agent, independent contractor, manager,
investment adviser, custodian or underwriter.
(o) To hold any security or other property (i) in a form not
indicating any trust, whether in bearer, book entry, unregistered or other
negotiable form, or (ii) either in the Trust's or Trustees' own name or in the
name of a custodian or a nominee or nominees, subject to safeguards according to
the usual practice of statutory trusts or investment companies.
(p) To establish separate and distinct Series with separately
defined investment objectives and policies and distinct investment purposes, and
with separate Shares representing beneficial interests in such Series, and to
establish separate Classes, all in accordance with the provisions of Article V.
(q) To the full extent permitted by Section 3804 of the
Delaware Act, to allocate assets, liabilities and expenses of the Trust to a
particular Series and assets, liabilities and expenses to a particular Class or
to apportion the same between or among two or more Series or Classes, provided
that any liabilities or expenses incurred by a particular Series or Class shall
be payable solely out of the assets belonging to that Series or Class as
provided for in Article V, Section 4.
(r) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or concern whose
securities are held by the Trust; to consent to any contract, lease, mortgage,
purchase, or sale of property by such corporation or concern; and to pay calls
or subscriptions with respect to any security held in the Trust.
(s) To compromise, arbitrate, or otherwise adjust claims in
favor of or against the Trust or any matter in controversy including, but not
limited to, claims for taxes.
(t) To make distributions of income, capital gains, returns of
capital (if any) and redemption proceeds to Shareholders in the manner
hereinafter provided for.
(u) To establish committees for such purposes, with such
membership, and with such responsibilities as the Trustees may consider proper,
including a committee consisting of fewer than all of the Trustees then in
office, which may act for and bind the Trustees and the Trust with respect to
the institution, prosecution, dismissal, settlement, review or investigation of
any action, suit or proceeding, pending or threatened to be brought before any
court, administrative agency or other adjudicatory body.
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(v) To issue, sell, repurchase, redeem, cancel, retire,
acquire, hold, resell, reissue, dispose of and otherwise deal in Shares; to
establish terms and conditions regarding the issuance, sale, repurchase,
redemption, cancellation, retirement, acquisition, holding, resale, reissuance,
disposition of or dealing in Shares; and, subject to Articles V and VI, to apply
to any such repurchase, redemption, retirement, cancellation or acquisition of
Shares any funds or property of the Trust or of the particular Series with
respect to which such Shares are issued.
(w) To invest part or all of the Trust Property (or part or
all of the assets of any Series), or to dispose of part or all of the Trust
Property (or part or all of the assets of any Series) and invest the proceeds of
such disposition, in securities issued by one or more other investment companies
registered under the 1940 Act (including investment by means of transfer of part
or all of the Trust Property in exchange for an interest or interest in such one
or more investment companies) all without any requirement of approval by
Shareholders. Any such other investment company may (but need not) be a trust
(formed under the laws of any state) which is classified as a partnership for
federal income tax purposes.
(x) To sell or exchange any or all of the assets of the Trust,
subject to Article IX, Sections 4, 6 and 7.
(y) To enter into joint ventures, partnerships and any other
combinations and associations.
(z) 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.
(aa) To purchase and pay for entirely out of Trust 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 Trust or payment of distributions and principal on its portfolio
investments, and, subject to applicable law and any restrictions set forth in
the By-Laws, insurance policies insuring the Shareholders, Trustees, officers,
employees, agents, investment advisers, Principal Underwriters, or independent
contractors of the Trust, 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 Trust would have the power to indemnify such Person against
liability.
(bb) To adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans and trusts, including the purchasing of
life insurance and annuity contracts as a means of providing such retirement and
other benefits, for any or all of the Trustees, officers, employees and agents
of the Trust.
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(cc) 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 attorneys 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 and property as the Trustees shall deem
proper.
(dd) To enter into contracts of any kind and description.
(ee) To interpret the investment policies, practices or
limitations of any Series or Class.
(ff) To guarantee indebtedness and contractual obligations of
others.
(gg) To carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary or
desirable to accomplish any purpose or to further any of the foregoing powers,
and to take every other action incidental to the foregoing business or purposes,
objects or powers.
The clauses above shall be construed as objects and powers, and the
enumeration of specific powers shall not limit in any way the general powers of
the Trustees. Any action by one or more of the Trustees in their capacity as
such hereunder shall be deemed an action on behalf of the Trust or the
applicable Series, and not an action in an individual capacity. No one dealing
with the Trustees shall be under any obligation to make any inquiry concerning
the authority of the Trustees, or to see to the application of any payments made
or property transferred to the Trustees or upon their order. In construing this
Declaration, the presumption shall be in favor of a grant of power to the
Trustees.
Section 3. Certain Transactions. Except as prohibited by applicable
law, the Trustees may, on behalf of the Trust, buy any securities from or sell
any securities to, or lend any assets of the Trust to, 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 investment adviser, administrator,
distributor or transfer agent for the Trust or with any Interested Person of
such person. The Trust may employ any such person or entity in which such person
is an Interested Person, as broker, legal counsel, registrar, investment
adviser, administrator, distributor, transfer agent, dividend disbursing agent,
custodian or in any other capacity upon customary terms.
Section 4. Initial Trustee(s); Election and Number of Trustees. The
initial Trustee(s) shall be the persons initially signing this Declaration. The
number of Trustees (other than the initial Trustees) shall be fixed from time to
time by a majority of the Trustees then in office; provided, that there shall be
at least one (1) Trustee and no more than fifteen (15).
Section 5. Term of Office of Trustees; Classes.
(a) Subject to the voting rights established with respect to a
particular Series or Class, each Trustee shall hold office for life or until his
successor is elected and duly qualified or the Trust terminates. Notwithstanding
the foregoing but subject to the voting rights established with respect to a
particular Series or Class, (1) any Trustee may resign by delivering to the
other Trustees or to any Trust officer a written resignation effective upon such
delivery or
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a later date specified therein; (2) any Trustee may be removed with cause at any
time by a written instrument signed by at least three-quarters of the then
Trustees, specifying the effective date of removal; (3) any Trustee who requests
to be retired, or who is declared bankrupt or has become physically or mentally
incapacitated or is otherwise unable to serve, may be retired by a written
instrument signed by a majority of the other Trustees, specifying the effective
date of retirement; and (4) any Trustee may be removed, with or without cause,
by a vote of at least a majority of the then Trustees if such removal is
approved by the holders of at least three-quarters of the Outstanding Shares
entitled to vote with respect to the election of such Trustee and present in
person or by proxy at a meeting of the Shareholders called for such purpose.
(b) The Board of Trustees shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as nearly
as may be possible, of one-third of the total number of trustees constituting
the entire Board of Trustees. Within the limits above specified, the number of
the Trustees in each class shall be determined by resolution of the Board of
Trustees. The term of office of the 1st class shall expire on the date of the
1st annual meeting of Shareholders or special meeting in lieu thereof following
the effective date of the Registration Statement relating to the Shares under
the Securities Act. The term of the 2nd class shall expire on the date of the
2nd annual meeting of Shareholders or special meeting in lieu thereof following
the effective date of the Registration Statement relating to the Shares under
the Securities Act. The term of the 3rd class shall expire on the date of the
3rd annual meeting of Shareholders or special meeting in lieu thereof following
the effective date of the Registration Statement relating to the Shares under
the Securities Act. Upon expiration of the term of office of each class as set
forth above, the number of Trustees in such class, as determined by the Board of
Trustees, shall be elected for a term expiring on the date of the 3rd annual
meeting of Shareholders or special meeting in lieu thereof following such
expiration to succeed the Trustees whose terms of office expire. The Trustees
shall be elected at an annual meeting of the Shareholders or special meeting in
lieu thereof called for that purpose.
Section 6. Vacancies; Appointment of Trustees. Whenever a vacancy shall
exist in the Board of Trustees, regardless of the reason for such vacancy, the
remaining Trustees shall appoint any person as they determine in their sole
discretion to fill that vacancy, consistent with the limitations under the 1940
Act, provided, that if the Shareholders of any Class or Series of Shares are
entitled separately to elect one or more Trustees, a majority of the remaining
Trustees or the sole remaining Trustee elected by that Class or Series may fill
any vacancy among the number of Trustees elected by that Class or Series. Such
appointment shall be made by a written instrument signed by a majority of the
Trustees or by a resolution of the Trustees, duly adopted and recorded in the
records of the Trust, specifying the effective date of the appointment. The
Trustees may appoint a new Trustee as provided above in anticipation of a
vacancy expected to occur because of the retirement, resignation or removal of a
Trustee, or an increase in number of Trustees, provided that such appointment
shall become effective only at or after the expected vacancy occurs. As soon as
any such Trustee has accepted his appointment in writing, the trust estate shall
vest in the new Trustee, together with the continuing Trustees, without any
further act or conveyance, and he shall be deemed a Trustee hereunder. The
Trustees' power of appointment is subject to Section 16(a) of the 1940 Act.
Whenever a vacancy in the number of Trustees shall occur, until such vacancy is
filled as provided in this Article II, 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 the Declaration. The
death, declination to
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serve, resignation, retirement, removal or incapacity of one or more 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 of Trust.
Section 7. Chairman. The Trustees may appoint one of their number to be
Chairman of the Board of Trustees. The Chairman shall preside at all meetings of
the Trustees, shall be responsible for the execution of policies established by
the Trustees and the administration of the Trust, and may be the chief
executive, financial and/or accounting officer of the Trust. If the Trustees do
not appoint a Chairman, the President shall perform the duties and have the
responsibilities hereunder.
Section 8. Action by the Trustees.
(a) Except as expressly provided in this Agreement, the
Trustees shall act by majority vote at a meeting duly called at which a quorum
is present, including a meeting held by conference telephone, teleconference or
other electronic media or communication equipment by means of which all persons
participating in the meeting can communicate with each other; or by written
consent of a majority of Trustees (or such greater number as may be required by
applicable law) without a meeting. A majority of the Trustees shall constitute a
quorum at any meeting. Meetings of the Trustees may be called orally or in
writing by the President or by any one of the Trustees or as set forth in the
By-Laws. Notice of the time, date and place of all Trustees' meetings shall be
given to each Trustee as set forth in the By-Laws; provided, however, that no
notice is required if the Trustees provide for regular or stated meetings.
Notice need not be given to any Trustee who attends the meeting without
objecting to the lack of notice or who signs a waiver of notice either before or
after the meeting. Except as expressly provided in this Agreement, the Trustees
by majority vote may delegate to any Trustee or Trustees or committee authority
to approve particular matters or take particular actions on behalf of the Trust.
Any written consent or waiver may be provided and delivered to the Trust by
facsimile or other similar electronic mechanism.
(b) A Trustee who with respect to the Trust is not an
Interested Person shall be deemed to be independent and disinterested when
making any determinations or taking any action as a Trustee, whether pursuant to
the 1940 Act, the Delaware Act or otherwise.
Section 9. Ownership of Trust Property. The Trust Property of the Trust
and of each Series shall be held separate and apart from any assets now or
hereafter held in any capacity other than as Trustee hereunder by the Trustees
or any successor Trustees. Legal title in and beneficial ownership of all of the
assets of the Trust shall at all times be considered as vested in the Trust,
except that the Trustees may cause legal title in and beneficial ownership of
any Trust Property to be held by, or in the name of one or more of the Trustees
acting for and on behalf of the Trust, or in the name of any person as nominee
acting for and on behalf of the Trust. No Shareholder shall be deemed to have a
severable ownership in any individual asset of the Trust or of any Series or any
right of partition or possession thereof, but each Shareholder shall have, as
provided in Article V, a proportionate undivided beneficial interest in the
Trust or Series or Class thereof represented by Shares. The Shares shall be
personal property giving only the rights specifically set forth in this Trust
Instrument. The Trust, or at the determination of the Trustees one or more of
the Trustees or a nominee acting for and on behalf of the Trust, shall be deemed
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to hold legal title and beneficial ownership of any income earned on securities
of the Trust issued by any business entities formed, organized, or existing
under the laws of any jurisdiction, including the laws of any foreign country.
Upon the resignation or removal of a Trustee, or his otherwise ceasing to be a
Trustee, he shall execute and deliver such documents as the remaining Trustees
shall require for the purpose of conveying to the Trust or the remaining
Trustees any Trust Property held in the name of the resigning or removed
Trustee. Upon the incapacity or death of any Trustee, his legal representative
shall execute and deliver on his behalf such documents as the remaining Trustees
shall require as provided in the preceding sentence.
Section 10. Effect of Trustees Not Serving. The death, resignation,
retirement, removal, incapacity or inability or refusal to serve of the
Trustees, or any one of them, shall not operate to annul the Trust or to revoke
any existing agency created pursuant to the terms of this Declaration.
Section 11. Trustees, Etc. as Shareholders. Subject to any restrictions
in the By-Laws, any Trustee, officer, agent or independent contractor of the
Trust may acquire, own and dispose of Shares to the same extent as any other
Shareholder; the Trustees may issue and sell Shares to and buy Shares from any
such person or any firm or company in which such Person is interested, subject
only to any general limitations herein.
Section 12. Series Trustees. In connection with the establishment of
one or more Series or Classes, the Trustees establishing such Series or Class
may appoint, to the extent permitted by the Delaware Act, separate Trustees with
respect to such Series or Classes (the "Series Trustees"). Series Trustees may,
but are not required to, serve as Trustees of the Trust or any other Series or
Class of the Trust. The Series Trustees shall have, to the exclusion of any
other Trustee of the Trust, all the powers and authorities of Trustees hereunder
with respect to such Series or Class, but shall have no power or authority with
respect to any other Series or Class. Any provision of this Declaration relating
to election of Trustees by Shareholders only shall entitle the Shareholders of a
Series or Class for which Series Trustees have been appointed to vote with
respect to the election of such Series Trustees and the Shareholders of any
other Series or Class shall not be entitled to participate in such vote. In the
event that Series Trustees are appointed, the Trustees initially appointing such
Series Trustees shall, without the approval of any Outstanding Shares, amend
either the Declaration or the By-Laws to provide for the respective
responsibilities of the Trustees and the Series Trustees in circumstances where
an action of the Trustees or Series Trustees affects all Series of the Trust or
two or more Series represented by different Trustees.
ARTICLE III
CONTRACTS WITH SERVICE PROVIDERS
Section 1. Underwriting Contract. The Trustees may in their discretion
from time to time enter into an exclusive or non-exclusive underwriting or
distribution contract or contracts providing for the sale of the Shares whereby
the Trustees may either agree to sell the Shares to the other party to the
contract or appoint such other party as their sales agent for the Shares, and in
either case on such terms and conditions, if any, as may be prescribed in the
By-Laws, and such further terms and conditions as the Trustees may in their
discretion determine not
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inconsistent with the provisions of this Article III or of the By-Laws; and such
contract may also provide for the repurchase of the Shares by such other party
as agent of the Trustees.
Section 2. Advisory or Management Contract. The Trustees may in their
discretion from time to time enter into one or more investment advisory or
management contracts or, if the Trustees establish multiple Series, separate
investment advisory or management contracts with respect to one or more Series
whereby the other party or parties to any such contracts shall undertake to
furnish the Trust or such Series management, investment advisory,
administration, accounting, legal, statistical and research facilities and
services, promotional or marketing activities, and such other facilities and
services, if any, as the Trustees shall from time to time consider desirable and
all upon such terms and conditions as the Trustees may in their discretion
determine. Notwithstanding any provisions of the Declaration, the Trustees may
authorize the Investment Adviser(s) or persons to whom the Investment Adviser(s)
delegates certain or all of its duties, or any of them, under any such contracts
(subject to such general or specific instructions as the Trustees may from time
to time adopt) to effect purchases, sales, loans or exchanges of portfolio
securities and other investments of the Trust on behalf of the Trustees or may
authorize any officer, employee or Trustee to effect such purchases, sales,
loans or exchanges pursuant to recommendations of such Investment Adviser(s), or
any of them (and all without further action by the Trustees). Any such
purchases, sales, loans and exchanges shall be deemed to have been authorized by
all of the Trustees.
Section 3. Administration Agreement. The Trustees may in their
discretion from time to time enter into an administration agreement or, if the
Trustees establish multiple Series or Classes, separate administration
agreements with respect to each Series or Class, whereby the other party to such
agreement shall undertake to manage the business affairs of the Trust or of a
Series or Class thereof of the Trust and furnish the Trust or a Series or a
Class thereof with office facilities, and shall be responsible for the ordinary
clerical, bookkeeping and recordkeeping services at such office facilities, and
other facilities and services, if any, and all upon such terms and conditions as
the Trustees may in their discretion determine.
Section 4. Service Agreement. The Trustees may in their discretion from
time to time enter into service agreements with respect to one or more Series or
Classes of Shares whereby the other parties to such Service Agreements will
provide administration and/or support services pursuant to administration plans
and service plans, and all upon such terms and conditions as the Trustees in
their discretion may determine.
Section 5. Transfer Agent. The Trustees may in their discretion from
time to time enter into a transfer agency and shareholder service contract
whereby the other party to such contract shall undertake to furnish transfer
agency and shareholder services to the Trust. The contract shall have such terms
and conditions as the Trustees may in their discretion determine not
inconsistent with the Declaration. Such services may be provided by one or more
Persons.
Section 6. Custodian. The Trustees may appoint or otherwise engage one
or more banks or trust companies or any other entity satisfying the requirements
of the 1940 Act, to serve as Custodian with authority as its agent, but subject
to such restrictions, limitations and other requirements, if any, as may be
contained in the By-Laws of the Trust. The Trustees may also authorize the
Custodian to employ one or more sub-custodians, including such foreign banks and
11
securities depositories as meet the requirements of applicable provisions of the
1940 Act, and upon such terms and conditions as may be agreed upon between the
Custodian and such sub-custodian, to hold securities and other assets of the
Trust and to perform the acts and services of the Custodian, subject to
applicable provisions of law and resolutions adopted by the Trustees.
Section 7. Affiliations of Trustees or Officers, Etc. The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust or any Series
thereof is a shareholder, director, officer, partner, trustee, employee,
manager, adviser or distributor of or for any partnership, corporation, trust,
association or other organization or of or for any parent or affiliate of any
organization, with which a contract of the character described in this Article
III or for services as Custodian, Transfer Agent or disbursing agent or for
related services may have been or may hereafter be made, or that any such
organization, or any parent or affiliate thereof, is a Shareholder of or has an
interest in the Trust, or that (ii) any partnership, corporation, trust,
association or other organization with which a contract of the character
described in Sections 1, 2, 3 or 4 of this Article III or for services as
Custodian, Transfer Agent or disbursing agent or for related services may have
been or may hereafter be made also has any one or more of such contracts with
one or more other partnerships, corporations, trusts, associations or other
organizations, or has other business or interests, shall not affect the validity
of any such contract or disqualify any Shareholder, Trustee or officer of the
Trust from voting upon or executing the same or create any liability or
accountability to the Trust or its Shareholders.
ARTICLE IV
COMPENSATION, LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 1. Compensation. The Trustees as such shall be entitled to
reasonable compensation from the Trust, 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 Trust.
Section 2. Limitation of Liability. All persons contracting with or
having any claim against the Trust or a particular Series shall look only to the
assets of all Series or such particular Series for payment under such contract
or claim; and neither the Trustees nor, when acting in such capacity, any of the
Trust's officers, employees or agents, whether past, present or future, shall be
personally liable therefor. Every written instrument or obligation on behalf of
the Trust or any Series shall contain a statement to the foregoing effect, but
the absence of such statement shall not operate to make any Trustee or officer
of the Trust liable thereunder. Provided they have exercised reasonable care and
have acted under the reasonable belief that their actions are in the best
interest of the Trust, the Trustees and officers of the Trust shall not be
responsible or liable for any act or omission or for neglect or wrongdoing of
them or any officer, agent, employee, investment adviser or independent
contractor of the Trust, but nothing contained in this Declaration or in the
Delaware Act shall protect any Trustee or officer of the Trust against liability
to the Trust or to Shareholders to which he would otherwise be subject by reason
of willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office.
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Section 3. Indemnification.
(a) Subject to the exceptions and limitations contained in
subsection (b) below:
(i) every person who is, or has been, a Trustee or an
officer, employee or agent of the Trust (including any
individual who serves at its request as director, officer,
partner, employee, trustee, agent or the like of another
organization in which it has any interest as a shareholder,
creditor or otherwise) ("Covered Person") shall be indemnified
by the Trust or the appropriate Series 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
a Covered Person and against amounts paid or incurred by him
in the settlement thereof; and
(ii) as used herein, the words "claim," "action,"
"suit," or "proceeding" shall apply to all claims, actions,
suits or proceedings (civil, criminal, administrative,
investigative or other, including appeals), actual or
threatened, and the words "liability" and "expenses" shall
include, without limitation, attorneys' fees, costs,
judgments, amounts paid in settlement, fines, penalties and
other liabilities.
(b) No indemnification shall be provided hereunder to a
Covered Person:
(i) who shall have been adjudicated by a court or
body before which the proceeding was brought (A) to be liable
to the Trust or its Shareholders by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his office, or (B)
not to have acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best
interests of the Trust; or
(ii) in the event of a settlement, unless there has
been a determination that such Covered Person did not engage
in willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of
his office; (A) by the court or other body approving the
settlement; (B) by at least a majority of those Trustees who
are neither Interested Persons of the Trust nor are parties to
the matter based upon a review of readily available facts (as
opposed to a full trial-type inquiry); (C) by written opinion
of independent legal counsel based upon a review of readily
available facts (as opposed to a full trial-type inquiry) or
(D) by a vote of a majority of the Outstanding Shares entitled
to vote (excluding any Outstanding Shares owned of record or
beneficially by such individual).
(c) The rights of indemnification herein provided may be
insured against by policies maintained by the Trust, shall be severable, shall
not be exclusive of or affect any other
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rights to which any Covered Person may now or hereafter be entitled, and shall
inure to the benefit of the heirs, executors and administrators of a Covered
Person.
(d) To the maximum extent permitted by applicable law,
expenses in connection with the preparation and presentation of a defense to any
claim, action, suit or proceeding of the character described in subsection (a)
of this Section may be paid by the Trust or applicable Series from time to time
prior to final disposition thereof upon receipt of an undertaking by or on
behalf of such Covered Person that such amount will be paid over by him to the
Trust or applicable Series if it is ultimately determined that he is not
entitled to indemnification under this Section; provided, however, that either
(i) such Covered Person shall have provided appropriate security for such
undertaking, (ii) the Trust is insured against losses arising out of any such
advance payments or (iii) either a majority of a quorum of the Trustees who are
neither Interested Persons of the Trust nor parties to the matter, or
independent legal counsel in a written opinion, shall have determined, based
upon a review of readily available facts (as opposed to a full trial-type
inquiry) that there is reason to believe that such Covered Person will not be
disqualified from indemnification under this Section. Independent counsel
retained for the purpose of rendering an opinion regarding advancement of
expenses and/or a majority of a quorum of the Trustees who are neither
Interested Persons of the Trust nor parties to the matter, may proceed under a
rebuttable presumption that the Covered Person has not engaged in willful
misfeasance, bad faith, gross negligence or reckless disregard of the Covered
Person's duties to the Trust and were based on the Covered Person's
determination that those actions were in the best interests of the Trust and its
Shareholders; provided that the Covered Person is not an Interested Person (or
is an Interested Person solely by reason of being an officer of the Trust).
(e) Any repeal or modification of this Article IV by the
Shareholders, or adoption or modification of any other provision of the
Declaration or By-Laws inconsistent with this Article, shall be prospective
only, to the extent that such repeal, or modification would, if applied
retrospectively, adversely affect any limitation on the liability of any Covered
Person or indemnification available to any Covered Person with respect to any
act or omission which occurred prior to such repeal, modification or adoption.
Any such repeal or modification by the Shareholders shall require a vote of at
least two-thirds of the Outstanding Shares entitled to vote and present in
person or by proxy at any meeting of the Shareholders.
Section 4. Indemnification of Shareholders. If any Shareholder or
former Shareholder of any Series shall be held 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 any entity, its general successor) shall be entitled out of the assets
belonging to the applicable Series to be held harmless from and indemnified
against all loss and expense arising from such liability. The Trust, on behalf
of the affected Series, shall, upon request by such Shareholder, assume the
defense of any claim made against such Shareholder for any act or obligation of
the Series and satisfy any judgment thereon from the assets of the Series.
Section 5. No Bond Required of Trustees. No Trustee shall be obligated
to give any bond or other security for the performance of any of his duties
hereunder.
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Section 6. No Duty of Investigation; Notice in Trust Instruments, Etc.
No purchaser, lender, transfer agent or other Person dealing with the Trustees
or any officer, employee or agent of the Trust or a Series thereof shall be
bound to make any inquiry concerning the validity of any transaction purporting
to be made by the Trustees or by said officer, employee or agent or be liable
for the application of money or property paid, loaned, or delivered to or on the
order of the Trustees or of said officer, employee or agent. Every obligation,
contract, instrument, certificate, Share, other security of the Trust or a
Series thereof or undertaking, and every other act or thing whatsoever executed
in connection with the Trust shall be conclusively presumed to have been
executed or done by the executors thereof only in their capacity as Trustees
under this Declaration or in their capacity as officers, employees or agents of
the Trust or a Series thereof. Every written obligation, contract, instrument,
certificate, Share, other security of the Trust or a Series thereof or
undertaking made or issued by the Trustees may recite that the same is executed
or made by them not individually, but as Trustees under the Declaration, and
that the obligations of the Trust or a Series thereof under any such instrument
are not binding upon any of the Trustees or Shareholders individually, but bind
only the Trust Property or the Trust Property of the applicable Series, and may
contain any further recital which they may deem appropriate, but the omission of
such recital shall not operate to bind the Trustees individually. The Trustees
may maintain insurance for the protection of the Trust Property or the Trust
Property of the applicable Series, its Shareholders, Trustees, officers,
employees and agents in such amount as the Trustees shall deem adequate to cover
possible tort liability, and such other insurance as the Trustees in their sole
judgment shall deem advisable.
Section 7. Reliance on Experts, Etc. Each Trustee, officer or employee
of the Trust or a Series thereof shall, in the performance of his duties, powers
and discretions hereunder be fully and completely justified and protected with
regard to any act or any failure to act resulting from reliance in good faith
upon the books of account or other records of the Trust or a Series thereof,
upon an opinion of counsel, or upon reports made to the Trust or a Series
thereof by any of its officers or employees or by the Investment Adviser, the
Administrator, the Distributor, the Principal Underwriter, Transfer Agent,
selected dealers, accountants, appraisers or other experts or consultants
selected with reasonable care by the Trustees, officers or employees of the
Trust, regardless of whether such counsel or expert may also be a Trustee.
ARTICLE V
SERIES; CLASSES; SHARES; OTHER SECURITIES
Section 1. Establishment of Series or Class. The Trust shall consist of
one or more Series. Without limiting the authority of the Trustees to establish
and designate any further Series or Classes, the Trustees hereby establish a
single Series, designated Calamos Convertible and High Income Fund, and one
Class of Shares, designated as the common shares. Each additional Series or
Class shall be established and is effective upon the adoption of a resolution of
a majority of the Trustees or any alternative date specified in such resolution.
Such resolution may establish such additional Series or Classes directly in such
resolution or by reference to, or approval of, another document that sets forth
such Series or Classes, including any registration statement of the Trust, or as
otherwise provided in such resolution. The Trustees may designate the relative
rights and preferences of the Shares of each Series. The Trustees may divide the
Shares of any Series into Classes. Any Shares of any further Series and Classes
that may from
15
time to time be established and designated by the Trustees shall be established
and designated, and the variations in the relative rights and preferences as
between the different Series shall be fixed and determined, by the Trustees;
provided, that all Shares shall be identical except for such variations as shall
be fixed and determined between different Series or Classes by the Trustees in
establishing and designating such Class or Series. Unless otherwise designated
by the Trustees in the By-Laws or resolutions establishing a Series or Class,
the purchase price, the method of determining the net asset value, and the
relative liquidation, voting, dividend and other rights and preferences of
holders of each Series or Class shall be as set forth in the Trust's
Registration Statement on Form N-2 under the Securities Act of 1933 and/or the
1940 Act relating to the issuance of Shares of such Series or Class.
All references to Shares in this Declaration shall be deemed to be
Shares of any or all Series or Classes as the context may require. The Trust
shall maintain separate and distinct records for each Series and hold and
account for the assets thereof separately from the other assets of the Trust or
of any other Series. A Series may issue any number of Shares or any Class
thereof and need not issue Shares. Except as otherwise provided with respect to
a specific Class, each Share of a Series shall represent an equal beneficial
interest in the net assets of such Series. Each holder of Shares of a Series or
a Class thereof shall be entitled to receive his pro rata share of all
distributions made with respect to such Series or Class. Upon redemption of his
Shares, such Shareholder shall be paid solely out of the funds and property of
such Series. The Trustees may adopt and change the name of any Series or Class
without Shareholder approval.
Section 2. Shares. The beneficial interest in the Trust shall be
divided into transferable Shares of one or more separate and distinct Series or
Classes established by the Trustees. The number of Shares of each Series and
Class is unlimited and each Share shall have no par value per Share or such
other amount as the Trustees may establish. All Shares issued hereunder shall be
fully paid and nonassessable. Shareholders shall have no preemptive or other
right to subscribe to any additional Shares or other securities issued by the
Trust. The Trustees shall have full power and authority, in their sole
discretion and without obtaining Shareholder approval, to issue original or
additional Shares at such times and on such terms and conditions as they deem
appropriate; to issue fractional Shares and Shares held in the treasury; to
establish and to change in any manner Shares of any Series or Classes with such
preferences, rights upon liquidation, redemption rights, terms of conversion,
voting powers, and other rights and privileges as the Trustees may determine
(but the Trustees may not change Outstanding Shares in a manner materially
adverse to the Shareholders of such Shares); to divide or combine the Shares of
any Series or Classes into a greater or lesser number; to classify or reclassify
any unissued Shares of any Series or Classes into one or more Series or Classes
of Shares; to abolish any one or more Series or Classes of Shares; to issue
Shares to acquire other assets (including assets subject to, and in connection
with, the assumption of liabilities) and businesses; and to take such other
action with respect to the Shares as the Trustees may deem desirable. Shares
held in the treasury shall not confer any voting rights on the Trustees and
shall not be entitled to any dividends or other distributions declared with
respect to the Shares.
Section 3. Investment in the Trust. The Trustees shall accept
investments in any Series or Class from such persons and on such terms as they
may from time to time authorize. At the Trustees' discretion, such investments,
subject to applicable law, may be in the form of cash or securities in which
that Series is authorized to invest, valued as provided in Article VI, Section
3.
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Investments in a Series shall be credited to each Shareholder's account in the
form of full Shares at the Net Asset Value per Share next determined after the
investment is received or accepted as may be determined by the Trustees;
provided, however, that the Trustees may, in their sole discretion, (a) impose a
sales charge upon investments in any Series or Class, (b) issue fractional
Shares, (c) determine the Net Asset Value per Share of the initial capital
contribution or (d) authorize the issuance of Shares at a price other than Net
Asset Value to the extent permitted by the 1940 Act or any rule, order or
interpretation of the Commission thereunder. The Trustees shall have the right
to refuse to accept investments in any Series at any time without any cause or
reason therefor whatsoever.
Section 4. Assets and Liabilities of Series. All consideration received
by the Trust for the issue or sale of Shares of a particular Series, together
with all assets in which such consideration is invested or reinvested, all
income, earnings, profits, and proceeds thereof (including 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 be held and accounted for separately from the assets of every other
Series and are referred to as "assets belonging to" that Series. The assets
belonging to a Series shall belong only to that Series for all purposes, and to
no other Series, subject only to the rights of creditors of that Series. Any
assets, income, earnings, profits, and proceeds thereof, funds, or payments
which are not readily identifiable as belonging to any particular Series shall
be allocated by the Trustees between and among one or more Series as the
Trustees deem fair and equitable. Each such allocation shall be conclusive and
binding upon the Shareholders of all Series for all purposes, and such assets,
earnings, income, profits or funds, or payments and proceeds thereof shall be
referred to as assets belonging to that Series. Separate and distinct records
shall be maintained for each Series and the assets held with respect to each
Series shall be held and accounted for separately from the assets held with
respect to all other Series and from any assets, income, earnings, profits, and
proceeds thereof, funds, or payments which are not readily identifiable as
belonging to any particular Series that are not allocated to such Series by the
Trustees in accordance with this Section 4. The assets belonging to a Series
shall be so recorded upon the books of the Trust, and shall be held by the
Trustees in trust for the benefit of the Shareholders of that Series. The assets
belonging to a Series shall be charged with the liabilities of that Series and
all expenses, costs, charges and reserves attributable to that Series, except
that liabilities and expenses allocated solely to a particular Class shall be
borne by that Class. Any general liabilities, expenses, costs, charges or
reserves of the Trust which are not readily identifiable as belonging to any
particular Series or Class shall be allocated and charged by the Trustees
between or among any one or more of the Series or Classes in such manner as the
Trustees deem fair and equitable. Each such allocation shall be conclusive and
binding upon the Shareholders of all Series or Classes for all purposes.
Without limiting the foregoing, but subject to the right of the
Trustees to allocate general liabilities, expenses, costs, charges or reserves
as herein provided, (a) the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to a particular
Series shall be enforceable against the assets of such Series only, and not
against the assets of any other Series or against the assets of the Trust
generally, and (b) none of the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to the Trust
generally or any other Series thereof shall be enforceable against the assets of
such Series. Notice of this contractual limitation on liabilities among Series
shall be set forth in the
17
certificate of trust of the Trust (whether originally or by amendment) as filed
or to be filed in the Office of the Secretary of State of the State of Delaware
pursuant to the Delaware Act, and upon the giving of such notice in the
certificate of trust, the statutory provisions of Section 3804 of the Delaware
Act relating to limitations on liabilities among Series (and the statutory
effect under Section 3804 of setting forth such notice in the certificate of
trust) shall become applicable to the Trust and each Series. Any person
extending credit to, contracting with or having any claim against any Series may
look only to the assets of that Series to satisfy or enforce any debt, with
respect to that Series. No Shareholder or former Shareholder of any Series shall
have a claim on or any right to any assets allocated or belonging to any other
Series.
Section 5. Ownership and Transfer of Shares. The Trust or a transfer or
similar agent for the Trust shall maintain a register containing the names and
addresses of the Shareholders of each Series and Class thereof, the number of
Shares of each Series and Class held by such Shareholders, and a record of all
Share transfers. The register shall be conclusive as to the identity of
Shareholders of record and the number of Shares held by them from time to time.
The Trustees may authorize the issuance of certificates representing Shares and
adopt rules governing their use. The Trustees may make rules governing the
transfer of Shares, whether or not represented by certificates. Except as
otherwise provided by the Trustees, Shares shall be transferable on the books of
the Trust only by the record holder thereof or by his duly authorized agent upon
delivery to the Trustees or the Trust's transfer agent of a duly executed
instrument of transfer, together with a Share certificate if one is outstanding,
and such evidence or the genuineness of each such execution and authorization
and of such other matters as may be required by the Trustees. Upon such
delivery, and subject to any further requirements specified by the Trustees or
contained in the By-Laws, the transfer shall be recorded on the books of the
Trust. Until a transfer is so recorded, the Shareholder of record of Shares
shall be deemed to be the holder of such Shares for all purposes hereunder and
neither the Trustees nor the Trust, nor any transfer agent or registrar or any
officer, employee or agent of the Trust, shall be affected by any notice of a
proposed transfer.
Section 6. Status of Shares; Limitation of Shareholder Liability.
Shares shall be deemed to be personal property giving Shareholders only the
rights provided in this Declaration. Every Shareholder, by virtue of having
acquired a Share, shall be held expressly to have assented to and agreed to be
bound by the terms of this Declaration and to have become a party hereto. No
Shareholder shall be personally liable for the debts, liabilities, obligations
and expenses incurred by, contracted for, or otherwise existing with respect to,
the Trust or any Series. The death, incapacity, dissolution, termination or
bankruptcy of a Shareholder during the existence of the Trust shall not 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 entitles such representative only to the rights of such
Shareholder under this Trust. Ownership of Shares shall not entitle the
Shareholder to any title in or to the whole or any part of the Trust Property or
right to call for a partition or division of the same or for an accounting, nor
shall the ownership of Shares constitute the Shareholders as partners. Neither
the Trust nor the Trustees shall have any power to bind any Shareholder
personally or to demand payment from any Shareholder for anything, other than as
agreed by the Shareholder. Shareholders shall have the same limitation of
personal liability as is extended to shareholders of a private corporation for
profit incorporated in the State of Delaware. Every written obligation of the
Trust or any Series shall contain a statement to the effect that such obligation
may only be enforced against
18
the assets of the appropriate Series or all Series; however, the omission of
such statement shall not operate to bind or create personal liability for any
Shareholder or Trustee.
Section 7. Other Securities. The Trustees may authorize and issue such
other securities of the Trust other than Shares as they determine to be
necessary, desirable or appropriate, having such terms, rights, preferences,
privileges, limitations and restrictions as the Trustees see fit, including
preferred interests, debt securities or other senior securities. To the extent
that the Trustees authorized and issue preferred shares of any Class or Series,
they are hereby authorized and empowered to amend or supplement this Declaration
as they deem necessary or appropriate, including to comply with the requirements
of the 1940 Act or requirements imposed by the rating agencies or other Persons,
all without the approval of Shareholders. Any such supplement or amendment shall
be filed as is necessary. The Trustees are also authorized to take such actions
and retain such persons as they see fit to offer and sell such securities.
ARTICLE VI
DISTRIBUTIONS AND REDEMPTIONS
Section 1. Distributions. The Trustees or a committee of one or more
Trustees may declare and pay dividends and other distributions, including
dividends on Shares of a particular Series and other distributions from the
assets belonging to that Series. No dividend or distribution, including, without
limitation, any distribution paid upon termination of the Trust or of any Series
(or Class) with respect to, nor any redemption or repurchase of, the Shares of
any Series (or Class) shall be effected by the Trust other than from the assets
held with respect to such Series, nor shall any Shareholder of any particular
Series otherwise have any right or claim against the assets held with respect to
any other Series 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 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. The amount and payment of dividends or
distributions and their form, whether they are in cash, Shares or other Trust
Property, shall be determined by the Trustees. Dividends and other distributions
may be paid pursuant to a standing resolution adopted once or more often as the
Trustees determine. Except as provided with respect to a particular Class in the
By-Laws or the resolutions establishing such Class, all dividends and other
distributions on Shares of a particular Series shall be distributed pro rata to
the Shareholders of that Series in proportion to the number of Shares of that
Series they held on the record date established for such payment. The Trustees
may adopt and offer to Shareholders such dividend reinvestment plans, cash
dividend payout plans or similar plans as the Trustees deem appropriate.
Section 2. Redemptions. Except as provided with respect to a particular
Class in the By-Laws or the resolutions establishing such Class, Shares of the
Trust will not be redeemed or repurchased by the Trust, except as the Trustees
shall determine from time to time and the Trust shall be under no obligation to
redeem or repurchase Shares. The Trustees may specify conditions, prices, and
places of redemption, may specify binding requirements for the proper form or
forms of requests for redemption and may specify the amount of any redemption
fee to be withheld from redemption proceeds. Payment of the redemption price may
be wholly or partly in securities or other assets at the value of such
securities or assets used in such
19
determination of Net Asset Value, or may be in cash. Upon redemption, Shares may
be reissued from time to time. The Trustees may require Shareholders to redeem
Shares for any reason under terms set by the Trustees, including, but not
limited to, the failure of a Shareholder to supply a taxpayer identification
number if required to do so, or to have the minimum investment required, or to
pay when due for the purchase of Shares issued to him. To the extent permitted
by law, the Trustees may retain the proceeds of any redemption of Shares
required by them for payment of amounts due and owing by a Shareholder to the
Trust or any Series or Class or any governmental authority. Notwithstanding the
foregoing, the Trustees may postpone payment of the redemption price and may
suspend the right of the Shareholders to require any Series or Class to redeem
Shares during any period of time when and to the extent permissible under the
1940 Act.
Section 3. Determination of Net Asset Value. The Trustees shall cause
the Net Asset Value of Shares of each Series or Class to be determined from time
to time in a manner consistent with applicable laws and regulations. The
Trustees may delegate the power and duty to determine Net Asset Value per Share
to one or more Trustees or officers of the Trust or to a custodian, depository
or other agent appointed for such purpose. The Net Asset Value of Shares shall
be determined separately for each Series or Class at such times as may be
prescribed by the Trustees or, in the absence of action by the Trustees, as of
the close of trading on the New York Stock Exchange on the last day of each
week.
Section 4. Suspension of Right of Redemption. If, as referred to in
Section 2 of this Article, the Trustees postpone payment of the redemption price
and suspend the right of Shareholders to redeem their Shares, such suspension
shall take effect at the time the Trustees shall specify, but not later than the
close of business on the business day next following the declaration of
suspension. Thereafter Shareholders shall have no right of redemption or payment
until the Trustees declare the end of the suspension. If the right of redemption
is suspended, a Shareholder may withdraw his request for redemption.
ARTICLE VII
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 1. Voting Powers. Subject to the voting rights established with
respect to a particular Class in the By-Laws or the resolutions establishing
such Class, the Shareholders shall have power to vote only with respect to (a)
the election of Trustees as provided in Section 2 of this Article; (b) the
removal of Trustees as provided in Article II, Section 5(a); (c) any investment
advisory or management contract to the extent required by the 1940 Act; (d) the
amendment of this Declaration to the extent and as provided in Article X,
Section 10; (e) the conversion of the Trust to an open-end investment company to
the extent provided in Article IX, Section 5; (f) the reorganization of the
Trust to the extent provided in Article IX, Section 6; (g) to approve a
transaction subject to Article IX, Section 7, and (h) such additional matters
relating to the Trust as may be required by the 1940 Act or any registration of
the Trust with the Commission or any State, or as the Trustees may consider
desirable.
On any matter submitted to a vote of the Shareholders, all Shares shall
be voted by individual Series or Class, except (a) as provided with respect to a
particular Class in the By-
20
Laws or the resolutions establishing such Class, (b) when required by the 1940
Act, Shares shall be voted in the aggregate and not by individual Series or
Class, and (c) when the Trustees have determined that the matter affects the
interests of more than one Series or Class, then the Shareholders of all such
Series or Classes shall be entitled to vote thereon. As determined by the
Trustees without the vote or consent of shareholders and except as provided with
respect to a particular Class in the By-Laws or the resolutions establishing
such Class, on any matter submitted to a vote of Shareholders either (i) 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 or (ii) each dollar of net asset value (number of Shares owned
times net asset value per share of such Series or Class, as applicable) shall be
entitled to one vote on any matter on which such Shares are entitled to vote and
each fractional dollar amount shall be entitled to a proportionate fractional
vote. Without limiting the power of the Trustees in any way to designate
otherwise in accordance with the preceding sentence, the Trustees hereby
establish that 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 or in any manner
provided for in the By-Laws. The By-Laws may provide that proxies may be given
by any electronic or telecommunications device or in any other manner, but if a
proposal by anyone other than the officers or Trustees is submitted to a vote of
the Shareholders of any Series or Class, or if there is a proxy contest or proxy
solicitation or proposal in opposition to any proposal by the officers or
Trustees, Shares may be voted only in person or by written proxy. Until Shares
of a Series are issued, as to that Series the Trustees may exercise all rights
of Shareholders and may take any action required or permitted to be taken by
Shareholders by law, this Declaration or the By-Laws. Meetings of Shareholders
shall be called and notice thereof and record dates therefor shall be given and
set as provided in the By-Laws.
Section 2. Quorum; Required Vote. One-third of the Outstanding Shares
of each Series or Class, or one-third of the Outstanding Shares of the Trust,
entitled to vote in person or by proxy shall be a quorum for the transaction of
business at a Shareholders' meeting with respect to such Series or Class, or
with respect to the entire Trust, respectively. Any lesser number shall be
sufficient for adjournments. Any adjourned session of a Shareholders' meeting
may be held within a reasonable time without further notice. Except when a
larger vote is required by the 1940 Act, this Declaration or the By-Laws, a
majority of the Shares voting at a Shareholders' meeting in person or by proxy
shall decide any matters to be voted upon with respect to the entire Trust and a
plurality of such Shares shall elect a Trustee; provided, that if this
Declaration or applicable law permits or requires that Shares be voted on any
matter by individual Series or Classes, then a majority of the Shares of that
Series or Class (or, if required by law, a majority of the Shares outstanding
and entitled to vote of that Series or Class) voting at a Shareholders' meeting
in person or by proxy on the matter shall decide that matter insofar as that
Series or Class is concerned.
Section 3. Record Dates. For the purpose of determining the
Shareholders of any Series (or Class) who are entitled to receive payment of any
dividend or of any other distribution, the 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
Series (or Class) having the right to receive such dividend or distribution.
Without fixing a record date, the Trustees may for distribution purposes close
the register or transfer books for
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one or more Series (or Classes) any time prior to the payment of a distribution.
Nothing in this Section shall be construed as precluding the Trustees from
setting different record dates for different Series (or Classes).
Section 4. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters.
ARTICLE VIII
EXPENSES OF THE TRUST AND SERIES
Section 1. Payment of Expenses by the Trust. Subject to Article V,
Section 4, the Trust or a particular Series shall pay, or shall reimburse the
Trustees from the assets belonging to all Series or the particular Series, for
their expenses (or the expenses of a Class of such Series) and disbursements,
including, but not limited to, interest charges, taxes, brokerage fees and
commissions; expenses of issue, repurchase and redemption of Shares; insurance
premiums; applicable fees, interest charges and expenses of third parties,
including the Trust's investment advisers, managers, administrators,
distributors, custodians, transfer agents and fund accountants; fees of pricing,
interest, dividend, credit and other reporting services; costs of membership in
trade associations; telecommunications expenses; funds transmission expenses;
auditing, legal and compliance expenses; costs of forming the Trust and its
Series and maintaining its existence; costs of preparing and printing the
prospectuses of the Trust and each Series, statements of additional information
and Shareholder reports and delivering them to Shareholders; expenses of
meetings of Shareholders and proxy solicitations therefor; costs of maintaining
books and accounts; costs of reproduction, stationery and supplies; fees and
expenses of the Trustees; compensation of the Trust's officers and employees and
costs of other personnel performing services for the Trust or any Series; costs
of Trustee meetings; Commission registration fees and related expenses; state or
foreign securities laws registration fees and related expenses; and for such
non-recurring items as may arise, including litigation to which the Trust or a
Series (or a Trustee or officer of the Trust acting as such) is a party, and for
all losses and liabilities by them incurred in administering the Trust. The
Trustees shall have a lien on the assets belonging to the appropriate Series, or
in the case of an expense allocable to more than one Series, on the assets of
each such Series, prior to any rights or interests of the Shareholders thereto,
for the reimbursement to them of such expenses, disbursements, losses and
liabilities.
Section 2. 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 Series, to pay directly, in advance or
arrears, for charges of the Trust'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.
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ARTICLE IX
MISCELLANEOUS
Section 1. Trust Not a Partnership. This Declaration creates a trust
and not a partnership. No Trustee shall have any power to bind personally either
the Trust's officers or any Shareholder.
Section 2. Trustee Action. The exercise by the Trustees of their powers
and discretion hereunder in good faith and with reasonable care under the
circumstances then prevailing shall be binding upon everyone interested. Subject
to the provisions of Article IV, the Trustees shall not be liable for errors of
judgment or mistakes of fact or law.
Section 3. Record Dates. The Trustees may fix in advance a date up to
ninety (90) days before the date of any Shareholders' meeting, or the date for
the payment of any dividends or other distributions, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
Shares shall go into effect as a record date for the determination of the
Shareholders entitled to notice of, and to vote at, any such meeting, or
entitled to receive payment of such dividend or other distribution, or to
receive any such allotment of rights, or to exercise such rights in respect of
any such change, conversion or exchange of Shares.
Section 4. Termination of the Trust.
(a) This Trust shall have perpetual existence subject to the
provisions of this Section 4.
(b) The Trust or any Series or Class thereof may be dissolved
and terminated by the affirmative vote of not less than three-quarters of the
Trustees then in office by written notice to the Shareholders.
(c) In connection with subsection (b) or to the extent
appropriate in connection with a reorganization as provided in Article IX,
Section 6, upon making reasonable provision for the payment of all known
liabilities of all Series or any affected Series or Classes, by such assumption
or otherwise, the Trustees shall distribute the remaining proceeds or assets (as
the case may be) ratably among the Shareholders of all Series or any affected
Series or Classes; however, the payment to any particular Class of such Series
may be reduced by any fees, expenses or charges allocated to that Class.
(d) Upon completion of the distribution of the remaining
proceeds or assets pursuant to subsection (c) above, the Trust or affected
Series or Classes shall terminate and the Trustees and the Trust shall be
discharged of any and all further liabilities and duties hereunder with respect
thereto and the right, title and interest of all parties therein shall be
canceled and discharged. Upon termination of the Trust, following completion of
winding up of its business, the Trustees shall cause a certificate of
cancellation of the Trust's certificate of trust to be filed in accordance with
the Delaware Act, which certificate of cancellation may be signed by any one
Trustee.
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Section 5. Conversion to an Open-End Investment Company.
Notwithstanding any other provisions of this Declaration or the By-Laws of the
Trust, a favorable vote of a majority of the Trustees then in office followed by
the favorable vote of the holders of not less than three-quarters of the Shares
of each affected class or series outstanding, voting as separate classes or
series, shall be required to approve, adopt or authorize an amendment to this
Declaration that makes the Shares a "redeemable security" as that term is
defined in the 1940 Act, unless such amendment has been approved by
three-quarters of the Trustees, in which case approval by a vote of a majority
of the Shares outstanding and entitled to vote shall be required. Upon the
adoption of a proposal to convert the Trust from a "closed-end company" to an
"open-end company" as those terms are defined by the 1940 Act and the necessary
amendments to this Declaration to permit such a conversion of the Trust's
outstanding Shares entitled to vote, the Trust shall, upon complying with any
requirements of the 1940 Act and state law, become an "open-end" investment
company. Such affirmative vote or consent shall be in addition to the vote or
consent of the holders of the Shares otherwise required by law, or any agreement
between the Trust and any national securities exchange.
Section 6. Reorganization.
(a) Except as provided in clause (b) of this Section 6 or in
Section 7 of this Article IX, subject to the affirmative vote of not less than
three-quarters of the Outstanding Shares and entitled to vote of the Trust or
any affected Series, the Trust may merge or consolidate with any other
corporation, association, trust or other organization or may sell, lease or
exchange all or substantially all of the Trust Property or the property,
including its good will, upon such terms and conditions and for such
consideration when and as authorized by a majority of the Trustees; provided
however, if at least three-quarters of the Trustees then in office have approved
such transaction, then the actions may be approved by the affirmative vote of a
majority of the Outstanding Shares entitled to vote of the Trust or the affected
Series.
(b) Notwithstanding anything else herein, to change the
Trust's form or place of organization the Trustees may, without Shareholder
approval unless such approval is required by applicable law, (i) cause the Trust
to merge or consolidate with or into one or more entities, if the surviving or
resulting entity is the Trust or any other corporation, association, trust or
other organization, or a series thereof, (ii) cause the Shares to be exchanged
under or pursuant to any state or federal statute to the extent permitted by
law, or (iii) cause the Trust to incorporate under the laws of Delaware or any
other U.S. jurisdiction. Any agreement of merger or consolidation or certificate
of merger may be signed by a majority of Trustees and facsimile signatures
conveyed by electronic or telecommunication means shall be valid.
(c) Pursuant to and in accordance with the provisions of
Section 3815(f) of the Delaware Act, an agreement of merger or consolidation
approved by the Trustees, and if applicable, Shareholders in accordance with
this Section 6 may effect any amendment to the Declaration or effect the
adoption of a new trust instrument of the Trust if it is the surviving or
resulting trust in the merger or consolidation.
(d) The Trustees may create one or more statutory trusts to
which all or any part of the assets, liabilities, profits or losses of the Trust
or any Series or Class thereof may be transferred and may provide for the
conversion of Shares in the Trust or any Series or Class
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thereof into beneficial interests in any such newly created trust or trusts or
any series or classes thereof.
Section 7. Certain Transactions.
(a) Notwithstanding any other provision of this Declaration
and subject to the exceptions provided in paragraph (d) of this Section, the
types of transactions described in paragraph (c) of this Section shall require
the affirmative vote or consent of a majority of the Trustees then in office
followed by the affirmative vote or consent of holders of not less than
three-quarters of the Shares of each affected class or series outstanding, votes
voting as separate classes or series, when a Principal Shareholder (as defined
in paragraph (b) of this Section) is a party to the transaction. Such
affirmative vote or consent shall be in addition to the vote or consent of the
holders of Shares otherwise required by law or by the terms of any class or
series of preferred stock, whether now or hereafter authorized, or any agreement
between the Trust and any national securities exchange.
(b) The term "Principal Shareholder" shall mean any
corporation, Person or other entity which is the beneficial owner, directly or
indirectly, of five percent (5%) or more of the outstanding Shares of any class
or series and shall include any affiliate or associates, as such terms are
defined in clause (ii) below, of a Principal Shareholder. For the purpose of
this Section, in addition to the Shares which a corporation, Person or other
entity beneficially owns directly, (a) any corporation, Person or other entity
shall be deemed to be the beneficial owner of any Shares (i) which it has the
right to acquire pursuant to any agreement or upon exercise of conversion rights
or warrants, or otherwise (but excluding share options granted by the Trust) or
(ii) which are beneficially owned, directly or indirectly (including Shares
deemed owned through application of clause (i) above, by any other corporation,
Person or entity with which its "affiliate" or "associate" (as defined below)
has any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of Shares, of which is its "affiliate" or
"associate" as those terms are defined in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, and (b) the outstanding
Shares shall include Shares deemed owned through application of clauses (i) and
(ii) above but shall not include any other Shares which may be issuable pursuant
to any agreement, or upon exercise of conversion rights or warrants, or
otherwise.
(c) This Section shall apply to the following transactions:
(i) The merger or consolidation of the Trust or any
subsidiary of the Trust with or into any Principal
Shareholder.
(ii) The issuance of any securities of the Trust to
any Principal Shareholder for such (other than pursuant to any
automatic dividend reinvestment plan).
(iii) The sale, lease or exchange to the Trust or any
subsidiary thereof, in exchange for securities of the Trust,
of any assets of any Principal Shareholder (except assets
having an aggregate fair market value of less than $1,000,000,
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aggregating for the purpose of such computation all assets
sold, leased or exchanged in any series of similar
transactions within a twelve-month period.)
(iv) The sale, lease or exchange to the Trust or any
subsidiary thereof, in exchange for securities of the Trust,
of any assets of any Principal Shareholder (except assets
having an aggregate fair market value of less than $1,000,000,
aggregating for the purposes of such computation all assets
sold, leased or exchanged in any series of similar
transactions within a twelve-month period).
(d) The provisions of this Section shall not be applicable to
(i) any of the transactions described in paragraph (c) of this Section if
three-quarters of the Trustees shall by resolution have approved a memorandum of
understanding with such Principal Shareholder with respect to and substantially
consistent with such transaction, in which case approval by the vote of a
majority of the Shares outstanding and entitled to vote shall be the only vote
of Shareholders required by this Section, or (ii) any such transaction with any
entity of which a majority of the outstanding shares of all classes and series
of a stock normally entitled to vote in elections of directors is owner of
record or beneficially by the Trust and its subsidiaries.
(e) The Board of Trustees shall have the power and duty to
determine for the purposes of this Section on the basis of information known to
the Trust whether (i) a corporation, person or entity beneficially owns five
percent (5%) or more of the outstanding Shares of any class or series, (ii) a
corporation, person or entity is an "affiliate" or "associate" (as defined
above) of another, (iii) the assets being acquired or leased to or by the Trust
or any subsidiary thereof constitute a substantial part of the assets of the
Trust and have an aggregate fair market value of less than $1,000,000, and (iv)
the memorandum of understanding referred to in paragraph (d) hereof is
substantially consistent with the transaction covered thereby. Any such
determination shall be conclusive and binding for all purposes of this Section.
Section 8. Declaration of Trust. The original or a copy of this
Declaration of Trust and of each amendment hereto or Declaration of Trust
supplemental shall be kept at the office of the Trust where it may be inspected
by any Shareholder. Anyone dealing with the Trust may rely on a certificate by a
Trustee or an officer of the Trust as to the authenticity of the Declaration of
Trust or any such amendments or supplements and as to any matters in connection
with the Trust. The masculine gender herein shall include the feminine and
neuter genders. Headings herein are for convenience only and shall not affect
the construction of this Declaration of Trust. This Declaration of Trust may be
executed in any number of counterparts, each of which shall be deemed an
original.
Section 9. Applicable Law. This Declaration and the Trust created
hereunder are governed by and construed and administered according to the
Delaware Act and the applicable laws of the State of Delaware; provided,
however, that there shall not be applicable to the Trust, the Trustees or this
Declaration of Trust (a) the provisions of Section 3540 of Title 12 of the
Delaware Code, or (b) any provisions of the laws (statutory or common) of the
State of Delaware (other than the Delaware Act) pertaining to trusts which
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 court or other
governmental approval concerning the
26
acquisition, holding or disposition of real or personal property, (iv) fees or
other sums payable 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, or (vii) the establishment of fiduciary or
other standards of responsibilities or limitations on the acts or powers of
trustees, which are inconsistent with the limitations or liabilities or
authorities and powers of the Trustees set forth or referenced in this
Declaration. The Trust shall be of the type commonly called a Delaware statutory
trust, and, without limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a trust under Delaware law. The
Trust specifically reserves the right to exercise any of the powers or
privileges afforded to trusts or actions that may be engaged in by 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.
Section 10. Amendments.
(a) The Trustees may, without any Shareholder vote, amend or
otherwise supplement this Declaration by making an amendment, a Declaration of
Trust supplemental hereto or an amended and restated trust instrument; provided,
that Shareholders shall have the right to vote on any amendment (a) which would
affect the voting rights of Shareholders granted in Article VII, Section l, (b)
to this Section 10, (c) required to be approved by Shareholders by the 1940 Act
or by the Trust's registration statement(s) filed with the Commission or any
State, and (d) submitted to them by the Trustees in their discretion. Any
amendment submitted to Shareholders which the Trustees determine would affect
the Shareholders of any Series shall be authorized by vote of the Shareholders
of such Series and no vote shall be required of Shareholders of a Series not
affected. Notwithstanding anything else herein, any amendment to Article IV
which would have the effect of reducing the indemnification and other rights
provided thereby to Trustees, officers, employees, and agents of the Trust or to
Shareholders or former Shareholders, and any repeal or amendment of this
sentence shall each require the affirmative vote of the holders of two-thirds of
the Outstanding Shares of the Trust entitled to vote thereon and no such
amendment shall effect the right to indemnification of any person who is no
longer a Trustee, Officer or employee or agent at the time of such amendment or
of any person with respect to any act or omission taken or omitted prior to the
adoption or enactment of such amendment or repeal.
(b) The Trustees may not amend this Declaration of Trust to
eliminate the rights of Shareholders of any Class or Series as set forth in this
Section 10(b) to vote on any amendment of this Declaration of Trust or the
By-Laws or alter or amend the percentage of voting Shares required to approve
any amendment or action which requires a specific Shareholder vote under this
Declaration of Trust or the By-Laws unless an equivalent vote has authorized
such an amendment of the Declaration of Trust or By-Laws. Any amendment which
adversely affects the holders of one or more Classes or Series of Shares shall
require a vote of the Shareholders holding a majority of the Shares of each
Class or Series so adversely affected and entitled to vote thereon and no vote
of Shareholders of any Class or Series not so adversely affected shall be
required, except that any amendment of any provision of Article IX, Sections 5,
6 or 7 shall require the vote of the Shareholders holding three-quarters of the
Shares of each
27
Class and Series entitled to vote thereon, regardless of the percentage of
Trustees recommending such amendment.
Section 11. Derivative Actions. In addition to the requirements set
forth in Section 3816 of the Delaware Act, a Shareholder may bring a derivative
action on behalf of the Trust only if the following conditions are met:
(a) The Shareholder or Shareholders must make a pre-suit
demand upon the Trustees to bring the subject action unless an effort to cause
the Trustees to bring such an action is not likely to succeed. For purposes of
this Section 11(a), a demand on the Trustees shall only be deemed not likely to
succeed and therefore excused if a majority of the Board of Trustees, or a
majority of any committee established to consider the merits of such action, is
composed of Trustees who are not "independent trustees" (as that term is defined
in the Delaware Act).
(b) Unless a demand is not required under paragraph (a) of
this Section 11, Shareholders eligible to bring such derivative action under the
Delaware Act who hold at least 10% of the Outstanding Shares of the Trust, or
10% of the Outstanding Shares of the Series or Class to which such action
relates, shall join in the request for the Trustees to commence such action; and
(c) Unless a demand is not required under paragraph (a) of
this Section 11, the Trustees must be afforded a reasonable amount of time to
consider such shareholder request and to investigate the basis of such claim.
The Trustees shall be entitled to retain counsel or other advisers in
considering the merits of the request and shall require an undertaking by the
Shareholders making such request to reimburse the Trust for the expense of any
such advisers in the event that the Trustees determine not to bring such action.
For purposes of this Section 11, the Board of Trustees may
designate a committee of one Trustee to consider a Shareholder demand if
necessary to create a committee with a majority of Trustees who are independent
trustees.
Section 12. Fiscal Year. The fiscal year of the Trust shall end on a
specified date as set forth in the By-Laws. The Trustees may change the fiscal
year of the Trust without Shareholder approval.
Section 13. Severability. The provisions of this Declaration are
severable. If the Trustees determine, with the advice of counsel, that any
provision hereof conflicts with the 1940 Act, the regulated investment company
provisions of the Internal Revenue Code or with other applicable laws and
regulations, the conflicting provision shall be deemed never to have constituted
a part of this Declaration; provided, however, that such determination shall not
affect any of the remaining provisions of this Declaration or render invalid or
improper any action taken or omitted prior to such determination. If any
provision hereof shall be held invalid or unenforceable in any jurisdiction,
such invalidity or unenforceability shall attach only to such provision only in
such jurisdiction and shall not affect any other provision of this Declaration.
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IN WITNESS WHEREOF, the undersigned being all the Trustees of the Trust
have executed this instrument as of the date first written above.
----------------------------------------
Xxxx X. Xxxxxxx,
as Trustee and not individually
