Exhibit 99(a)
BLACKROCK S&P QUALITY RANKINGS TRUST
AGREEMENT AND DECLARATION OF TRUST
Dated as of February 17, 2004
TABLE OF CONTENTS
Page
----
ARTICLE I
The Trust
1.1 Name.......................................................................................1
1.2 Definitions................................................................................2
ARTICLE II
Trustees
2.1 Number and Qualification...................................................................3
2.2 Term and Election..........................................................................4
2.3 Resignation and Removal....................................................................4
2.4 Vacancies..................................................................................5
2.5 Meetings...................................................................................5
2.6 Trustee Action by Written Consent..........................................................6
2.7 Chairman...................................................................................6
2.8 Officers...................................................................................6
ARTICLE III
Powers and Duties of Trustees
3.1 General....................................................................................6
3.2 Investments................................................................................7
3.3 Legal Title................................................................................7
3.4 Issuance and Repurchase of Shares..........................................................7
3.5 Borrow Money or Utilize Leverage...........................................................8
3.6 Delegation; Committees.....................................................................8
3.7 Collection and Payment.....................................................................8
3.8 Expenses...................................................................................9
3.9 By-Laws....................................................................................9
3.10 Miscellaneous Powers.......................................................................9
3.11 Further Powers............................................................................10
ARTICLE IV
Advisory, Management and Distribution Arrangements
4.1 Advisory and Management Arrangements......................................................10
4.2 Distribution Arrangements.................................................................11
4.3 Parties to Contract.......................................................................11
ARTICLE V
Limitations of Liability
and Indemnification
5.1 No Personal Liability of Shareholders, Trustees, etc......................................11
5.2 Mandatory Indemnification.................................................................12
5.3 No Bond Required of Trustees..............................................................14
5.4 No Duty of Investigation; Insurance, etc..................................................14
5.5 Reliance on Experts, etc..................................................................14
ARTICLE VI
Shares of Beneficial Interest
6.1 Beneficial Interest.......................................................................15
6.2 Other Securities..........................................................................15
6.3 Rights of Shareholders....................................................................15
6.4 Trust Only................................................................................15
6.5 Issuance of Shares........................................................................16
6.6 Register of Shares........................................................................16
6.7 Transfer Agent and Registrar..............................................................16
6.8 Transfer of Shares........................................................................17
6.9 Notices...................................................................................17
ARTICLE VII
Custodians
7.1 Appointment and Duties....................................................................17
7.2 Central Certificate System................................................................18
ARTICLE VIII
Redemption
8.1 Redemptions...............................................................................18
8.2 Disclosure of Holding.....................................................................19
ARTICLE IX
Determination of Net Asset Value
Net Income and Distributions
9.1 Net Asset Value...........................................................................19
9.2 Distributions to Shareholders.............................................................19
9.3 Power to Modify Foregoing Procedures......................................................20
ARTICLE X
Shareholders
10.1 Meetings of Shareholders..................................................................20
10.2 Voting....................................................................................21
10.3 Notice of Meeting and Record Date.........................................................21
10.4 Quorum and Required Vote..................................................................21
10.5 Proxies, etc..............................................................................22
10.6 Reports...................................................................................22
10.7 Inspection of Records.....................................................................22
10.8 Shareholder Action by Written Consent.....................................................23
ARTICLE XI
Duration; Termination of Trust;
Amendment; Mergers, Etc.
11.1 Duration..................................................................................23
11.2 Termination...............................................................................23
11.3 Amendment Procedure.......................................................................24
11.4 Merger, Consolidation and Sale of Assets..................................................25
11.5 Subsidiaries..............................................................................25
11.6 Conversion................................................................................26
11.7 Certain Transactions......................................................................26
ARTICLE XII
Miscellaneous
12.1 Filing....................................................................................28
12.2 Resident Agent............................................................................29
12.3 Governing Law.............................................................................29
12.4 Counterparts..............................................................................29
12.5 Reliance by Third Parties.................................................................29
12.6 Provisions in Conflict with Law or Regulation.............................................29
BLACKROCK S&P QUALITY RANKINGS TRUST
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made as of the 17th day of
February, 2004, by the Trustees hereunder, and by the holders of shares of
beneficial interest issued hereunder as hereinafter provided.
WHEREAS, this Trust has been formed to carry on business as set forth
more particularly hereinafter;
WHEREAS, this Trust is authorized to issue an unlimited number of its
shares of beneficial interest all in accordance with the provisions
hereinafter set forth;
WHEREAS, the Trustees have agreed to manage all property coming into
their hands as Trustees of a Delaware statutory trust in accordance with the
provisions hereinafter set forth; and
WHEREAS, the parties hereto intend that the Trust created by this
Declaration and the Certificate of Trust filed with the Secretary of State of
the State of Delaware on February 17, 2004, shall constitute a statutory trust
under the Delaware Statutory Trust Act and that this Declaration shall
constitute the governing instrument of such statutory trust.
NOW, THEREFORE, the Trustees hereby declare that they will hold all
cash, securities, and other assets which they may from time to time acquire in
any manner as Trustees hereunder IN TRUST to manage and dispose of the same
upon the following terms and conditions for the benefit of the holders from
time to time of shares of beneficial interest in this Trust as hereinafter set
forth.
ARTICLE I
The Trust
1.1 Name. This Trust shall be known as the "BlackRock S&P Quality
Rankings Trust" 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.
1.2 Definitions. As used in this Declaration, the following terms
shall have the following meanings:
The "1940 Act" refers to the Investment Company Act of 1940 and the
rules and regulations promulgated thereunder and exemptions granted therefrom,
as amended from time to time.
The terms "Affiliated Person", "Assignment", "Commission",
"Interested Person" and "Principal Underwriter" shall have the meanings given
them in the 1940 Act.
"By-Laws" shall mean the By-Laws of the Trust as amended from time to
time by the Trustees.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder.
"Commission" shall mean the Securities and Exchange Commission.
"Declaration" shall mean this Agreement and Declaration of Trust, as
amended, supplemented or amended and restated from time to time.
"Delaware Statutory Trust Statute" shall mean the provisions of the
Delaware Statutory Trust Act, 12 Del. C.ss.3801, et. seq., as such Act may be
amended from time to time.
"Delaware General Corporation Law" means the Delaware General
Corporation Law, 8 Del. C.ss.100, et. seq., as amended from time to time.
"Fundamental Policies" shall mean the investment policies and
restrictions designated as fundamental in the Prospectus utilized by the Trust
in connection with its initial public offering as they may be amended from
time to time in accordance with the requirements of the 1940 Act.
"Majority Shareholder Vote" shall mean a vote of "a majority of the
outstanding voting securities" (as such term is defined in the 0000 Xxx) of
the Trust with each class and series of Shares voting together as a single
class, except to the extent otherwise required by the 1940 Act or this
Declaration with respect to any one or more classes or series of Shares, in
which case the applicable proportion of such classes or series of Shares
voting as a separate class or series, as the case may be, also will be
required.
"Person" shall mean and include individuals, corporations,
partnerships, trusts, limited liability companies, associations, joint
ventures and other entities, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"Prospectus" shall mean the Prospectus (including any Statement of
Additional Information incorporated by reference therein) of the Trust in the
form filed with the Commission in connection with there being declared
effective a registration statement of the Trust under the Securities Act of
1933, as amended.
"Shareholders" shall mean as of any particular time the holders of
record of outstanding Shares of the Trust, at such time.
"Shares" shall mean the transferable units of beneficial interest
into which the beneficial interest in the Trust shall be divided from time to
time and includes fractions of Shares as well as whole Shares. In addition,
Shares also means any preferred shares or preferred units of beneficial
interest which may be issued from time to time, as described herein. All
references to Shares shall be deemed to be Shares of any or all series or
classes as the context may require.
"Trust" shall mean the trust established by this Declaration, as
amended from time to time, inclusive of each such amendment.
"Trust Property" shall mean as of any particular time any and all
property, real or personal, tangible or intangible, which at such time is
owned or held by or for the account of the Trust or the Trustees in such
capacity.
"Trustees" shall mean the signatory or signatories to this
Declaration, so long as he or they shall continue in office in accordance with
the terms hereof, and all other persons who at the time in question have been
duly elected or appointed and have qualified as trustees in accordance with
the provisions hereof and are then in office.
ARTICLE II
Trustees
2.1 Number and Qualification. The number of Trustees shall be
determined by resolution adopted by a majority of the Trustees then in office.
No reduction in the number of Trustees shall have the effect of removing any
Trustee from office prior to the expiration of his term. An individual
nominated as a Trustee shall be at least 21 years of age and not older than 80
years of age at the time of nomination and not under legal disability.
Trustees need not own Shares and may succeed themselves in office.
2.2 Term and Election. 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. The number of the Trustees
in each class shall be determined by the Board of Trustees. The term of office
of the first class shall expire on the date of the first annual meeting of
Shareholders or special meeting in lieu thereof following the effective date
of the registration statement relating to the initial public offering of the
Shares under the Securities Act of 1933, as amended. The term of office of the
second class shall expire on the date of the second annual meeting of
Shareholders or special meeting in lieu thereof following the effective date
of such registration statement. The term of office of the third class shall
expire on the date of the third annual meeting of Shareholders or special
meeting in lieu thereof following the effective date of such registration
statement. Upon expiration of the term of office of each class as set forth
above, the Trustees in such class shall be elected for a term expiring on the
date of the third annual meeting of Shareholders or special meeting in lieu
thereof following such expiration. The Trustees shall be elected at an annual
meeting of the Shareholders or special meeting in lieu thereof called for that
purpose, except as provided in Section 2.3 of this Article and each Trustee
elected shall hold office until his or her successor shall have been elected
and shall have qualified. The term of office of a Trustee shall terminate and
a vacancy shall occur in the event of the death, resignation, removal,
bankruptcy, adjudicated incompetence or other incapacity to perform the duties
of the office of such Trustee.
2.3 Resignation and Removal. Any of the Trustees may resign their
trust (without need for prior or subsequent accounting) by an instrument in
writing signed by such Trustee and delivered or mailed to the Trustees or the
Chairman, if any, the President or the Secretary and such resignation shall be
effective upon such delivery, or at a later date according to the terms of the
instrument. Any of the Trustees may be removed for cause only, and not without
cause, and only by action taken by a majority of the remaining Trustees then
in office followed by the holders of at least seventy-five percent (75%) of
the Shares then entitled to vote in an election of such Trustee or by a
Delaware court of competent jurisdiction. Upon the resignation or removal of a
Trustee, each such resigning or removed Trustee 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
such resigning or removed Trustee. Upon the death, bankruptcy, incompetence or
other incapacity of any Trustee, such Trustee or such Trustee's legal
representative shall execute and deliver on such Trustee's behalf such
documents as the remaining Trustees shall require as provided in the preceding
sentence.
2.4 Vacancies. Whenever a vacancy in the Board of Trustees shall
occur, the remaining Trustees may fill such vacancy by appointing an
individual having the qualifications described in this Article or may leave
such vacancy unfilled or may reduce the number of Trustees; 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. Any vacancy created by
an increase in Trustees may be filled by the appointment by the Trustees of an
individual having the qualifications described in this Article. No vacancy
shall operate to annul this Declaration or to revoke any existing agency
created pursuant to the terms of this Declaration. Whenever a vacancy in the
number of Trustees shall occur, until such vacancy is filled as provided
herein, the Trustees in office, regardless of their number, shall have all the
powers granted to the Trustees and shall discharge all the duties imposed upon
the Trustees by this Declaration.
2.5 Meetings. Meetings of the Trustees shall be held from time to
time upon the call of the Chairman, if any, or the President or any two
Trustees. Regular meetings of the Trustees may be held without call or notice
at a time and place fixed by the By-Laws or by resolution of the Trustees.
Notice of any other meeting shall be given by the Secretary and shall be
delivered to the Trustees orally not less than 24 hours, or in writing not
less than 72 hours, before the meeting, but may be waived in writing by any
Trustee either before or after such meeting. The attendance of a Trustee at a
meeting shall constitute a waiver of notice of such meeting except where a
Trustee attends a meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting has not been
properly called or convened. A quorum for all meetings of the Trustees shall
be one-third, but not less than two, of the Trustees in office. Unless
provided otherwise in this Declaration and except as required under the 1940
Act, any action of the Trustees may be taken at a meeting by vote of a
majority of the Trustees present (a quorum being present).
Any committee of the Trustees, including an executive committee, if
any, may act with or without a meeting. A quorum for all meetings of any such
committee shall be one-third, but not less than two, of the members thereof.
Unless provided otherwise in this Declaration and except as required under the
1940 Act, any action of any such committee may be taken at a meeting by vote
of a majority of the members present (a quorum being present).
With respect to actions of the Trustees and any committee of the
Trustees, Trustees who are Interested Persons in any action to be taken may be
counted for quorum purposes under this Section and shall be entitled to vote
to the extent not prohibited by the 1940 Act.
All or any one or more Trustees may participate in a meeting of the
Trustees or any committee thereof by means of a conference telephone or
similar communications equipment by means of which all persons participating
in the meeting can hear each other; participation in a meeting pursuant to any
such communications system shall constitute presence in person at such
meeting.
2.6 Trustee Action by Written Consent. Any action which may be taken
by Trustees by vote may be taken without a meeting if that number of the
Trustees, or members of a committee, as the case may be, that would be
required for approval of such action at a meeting of the Trustees or of such
committee at which all of the Trustees or members were present consent to the
action in writing and the written consents are filed with the records of the
meetings of Trustees. Such consent shall be treated for all purposes as a vote
taken at a meeting of Trustees or the relevant committee.
2.7 Chairman. The Trustees may elect a Chairman who shall serve at
the pleasure of the Trustees. The Chairman shall be a Trustee and shall not,
in his capacity as such, be an officer of the Trust.
2.8 Officers. The Trustees shall elect a President, a Secretary and a
Treasurer who shall serve at the pleasure of the Trustees or until their
successors are elected. The Trustees may elect or appoint or may authorize the
Chairman, if any, or President to appoint such other officers or agents with
such powers as the Trustees may deem to be advisable. The President, Secretary
and Treasurer may, but need not, be a Trustee.
ARTICLE III
Powers and Duties of Trustees
3.1 General. The Trustees shall owe to the Trust and its Shareholders
the same fiduciary duties as owed by directors of corporations to such
corporations and their stockholders under the Delaware General Corporation
Law. The Trustees shall have exclusive and absolute control over the Trust
Property and over the business of the Trust to the same extent as if the
Trustees were the sole owners of the Trust Property and business in their own
right, but with such powers of delegation as may be permitted by this
Declaration. The Trustees may perform such acts as in their sole discretion
are proper for conducting the business of the Trust. The enumeration of any
specific power herein shall not be construed as limiting the aforesaid power.
Such powers of the Trustees may be exercised without order of or resort to any
court.
3.2 Investments. The Trustees shall have power, subject to the
Fundamental Policies in effect from time to time with respect to the Trust,
to:
(a) manage, conduct, operate and carry on the business of an
investment company;
(b) subscribe for, invest in, reinvest in, purchase or
otherwise acquire, enter into, become obligated with respect to, hold, pledge,
sell, assign, transfer, exchange, lend, borrow, distribute or otherwise deal
in or dispose of any and all sorts of property, tangible or intangible,
including but not limited to securities of any type whatsoever, whether equity
or non-equity, of any issuer, evidences of indebtedness of any Person and any
other rights, interests, instruments or property of any sort and to exercise
any and all rights, powers and privileges of ownership or interest in respect
of any and all such investments of every kind and description, including,
without limitation, the right to consent and otherwise act with respect
thereto, with power to designate one or more Persons to exercise any of said
rights, powers and privileges in respect of any of said investments. The
Trustees shall not be limited by any law limiting the investments which may be
made by fiduciaries.
3.3 Legal Title. Legal title to all the Trust Property shall be
vested in the Trustees as joint tenants except that the Trustees shall have
power to cause legal title to any Trust Property to be held by or in the name
of one or more of the Trustees, or in the name of the Trust, or in the name of
any other Person as nominee, custodian or pledgee, on such terms as the
Trustees may determine.
The right, title and interest of the Trustees in the Trust Property
shall vest automatically in each person who may hereafter become a Trustee
upon his due election and qualification. Upon the ceasing of any person to be
a Trustee for any reason, such person shall automatically cease to have any
right, title or interest in any of the Trust Property, and the right, title
and interest of such Trustee in the Trust Property shall vest automatically in
the remaining Trustees. Such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered.
3.4 Issuance and Repurchase of Shares. The Trustees shall have the
power to issue, sell, repurchase, redeem, retire, cancel, acquire, hold,
resell, reissue, dispose of, transfer, and otherwise deal in, Shares,
including Shares in fractional denominations, and, subject to the more
detailed provisions set forth in Articles VIII and IX, to apply to any such
repurchase, redemption, retirement, cancellation or acquisition of Shares any
funds or property, whether capital or surplus or otherwise, to the full extent
now or hereafter permitted corporations formed under the Delaware General
Corporation Law.
3.5 Borrow Money or Utilize Leverage. Subject to the Fundamental
Policies in effect from time to time with respect to the Trust, the Trustees
shall have the power to borrow money or otherwise obtain credit or utilize
leverage to the maximum extent permitted by law or regulation as such may be
needed from time to time and to secure the same by mortgaging, pledging or
otherwise subjecting as security the assets of the Trust, and to endorse,
guarantee, or undertake the performance of any obligation, contract or
engagement of any other person, firm, association or corporation.
3.6 Delegation; Committees. The Trustees shall have the power,
consistent with their continuing exclusive authority over the management of
the Trust and the Trust Property, to delegate from time to time to such of
their number or to officers, employees or agents of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Trustees or otherwise as the Trustees may deem
expedient, to at least the same extent as such delegation is permitted to
directors of corporations formed under the Delaware General Corporation Law
and is permitted by the 1940 Act, as well as any further delegations the
Trustees may determine to be desirable, expedient or necessary in order to
effect the purposes hereof. The Trustees may designate one or more committees
which shall have all or such lesser portion of the authority of the entire
Board of Trustees as the Trustees shall determine from time to time except to
the extent action by the entire Board of Trustees or particular Trustees is
required by the 0000 Xxx.
3.7 Collection and Payment. The Trustees shall have power to collect
all property due to the Trust; to pay all claims, including taxes, against the
Trust Property or the Trust, the Trustees or any officer, employee or agent of
the Trust; to prosecute, defend, compromise or abandon any claims relating to
the Trust Property or the Trust, or the Trustees or any officer, employee or
agent of the Trust; to foreclose any security interest securing any
obligations, by virtue of which any property is owed to the Trust; and to
enter into releases, agreements and other instruments. Except to the extent
required for a corporation formed under the Delaware General Corporation Law,
the Shareholders shall have no power to vote as to whether or not a court
action, legal proceeding or claim should or should not be brought or
maintained derivatively or as a class action on behalf of the Trust or the
Shareholders.
3.8 Expenses. The Trustees shall have power to incur and pay out of
the assets or income of the Trust any expenses which in the opinion of the
Trustees are necessary or incidental to carry out any of the purposes of this
Declaration, and the business of the Trust, and to pay reasonable compensation
from the funds of the Trust to themselves as Trustees. The Trustees shall fix
the compensation of all officers, employees and Trustees. The Trustees may pay
themselves such compensation for special services, including legal,
underwriting, syndicating and brokerage services, as they in good faith may
deem reasonable and reimbursement for expenses reasonably incurred by
themselves on behalf of the Trust. The Trustees shall have the power, as
frequently as they may determine, to cause each Shareholder to pay directly,
in advance or arrears, for charges of distribution, of the custodian or
transfer, Shareholder servicing or similar agent, a pro rata amount as defined
from time to time by the Trustees, by setting off such charges due from such
Shareholder from declared but unpaid dividends or distributions 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.
3.9 By-Laws. The Trustees shall have the exclusive authority to adopt
and from time to time amend or repeal By-Laws for the conduct of the business
of the Trust.
3.10 Miscellaneous Powers. The Trustees shall have the power to: (a)
employ or contract with such Persons as the Trustees may deem desirable for
the transaction of the business of the Trust; (b) enter into joint ventures,
partnerships and any other combinations or associations; (c) purchase, and pay
for out of Trust Property, insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, investment advisors, distributors,
selected dealers or independent contractors of the Trust against all claims
arising by reason of holding any such position or by reason of any action
taken or omitted by any such Person in such capacity, whether or not
constituting negligence, or whether or not the Trust would have the power to
indemnify such Person against such liability; (d) establish pension,
profit-sharing, share purchase, and other retirement, incentive and benefit
plans for any Trustees, officers, employees and agents of the Trust; (e) make
donations, irrespective of benefit to the Trust, for charitable, religious,
educational, scientific, civic or similar purposes; (f) to the extent
permitted by law, indemnify any Person with whom the Trust has dealings,
including without limitation any advisor, administrator, manager, transfer
agent, custodian, distributor or selected dealer, or any other person as the
Trustees may see fit to such extent as the Trustees shall determine; (g)
guarantee indebtedness or contractual obligations of others; (h) determine and
change the fiscal year of the Trust and the method in which its accounts shall
be kept; (i) notwithstanding the Fundamental Policies of the Trust, convert
the Trust to a master-feeder structure; provided, however, the Trust obtains
the approval of shareholders holding at least a majority of the Trust's Shares
present at a meeting of Shareholders at which a quorum is present and (j)
adopt a seal for the Trust but the absence of such seal shall not impair the
validity of any instrument executed on behalf of the Trust.
3.11 Further Powers. The Trustees shall have the power to conduct the
business of the Trust and carry on its operations in any and all of its
branches and maintain offices both within and without the State of Delaware,
in any and all states of the United States of America, in the District of
Columbia, and in any and all commonwealths, territories, dependencies,
colonies, possessions, agencies or instrumentalities of the United States of
America and of foreign governments, and to do all such other things and
execute all such instruments as they deem necessary, proper or desirable in
order to promote the interests of the Trust although such things are not
herein specifically mentioned. Any determination as to what is in the
interests of the Trust made by the Trustees in good faith shall be conclusive.
In construing the provisions of this Declaration, the presumption shall be in
favor of a grant of power to the Trustees. The Trustees will not be required
to obtain any court order to deal with the Trust Property.
ARTICLE IV
Advisory, Management and Distribution Arrangements
4.1 Advisory and Management Arrangements. Subject to the requirements
of applicable law as in effect from time to time, the Trustees may in their
discretion from time to time enter into advisory, administration or management
contracts (including, in each case, one or more sub-advisory,
sub-administration or sub-management contracts) whereby the other party to any
such contract shall undertake to furnish the Trustees such advisory,
administrative and management services, with respect to the Trust 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 this Declaration, the Trustees may authorize
any advisor, administrator or manager (subject to such general or specific
instructions as the Trustees may from time to time adopt) to effect investment
transactions with respect to the assets on behalf of the Trustees to the full
extent of the power of the Trustees to effect such transactions or may
authorize any officer, employee or Trustee to effect such transactions
pursuant to recommendations of any such advisor, administrator or manager (and
all without further action by the Trustees).
4.2 Distribution Arrangements. Subject to compliance with the 1940
Act, the Trustees may retain underwriters and/or placement agents to sell
Trust Shares and debt instruments. The Trustees may in their discretion from
time to time enter into one or more contracts, providing for the sale of the
Shares and debt instruments of the Trust, whereby the Trust may either agree
to sell such Shares or debt instruments to the other party to the contract or
appoint such other party its sales agent for such Shares. In either case, the
contract shall be on such terms and conditions as the Trustees may in their
discretion determine not inconsistent with the provisions of this Article IV
or the By-Laws; and such contract may also provide for the repurchase or sale
of Shares or debt instruments of the Trust by such other party as principal or
as agent of the Trust and may provide that such other party may enter into
selected dealer agreements with registered securities dealers and brokers and
servicing and similar agreements with persons who are not registered
securities dealers to further the purposes of the distribution or repurchase
of the Shares or debt instruments of the Trust.
4.3 Parties to Contract. Any contract of the character described in
Sections 4.1 and 4.2 of this Article IV or in Article VII hereof may be
entered into with any Person, although one or more of the Trustees, officers
or employees of the Trust may be an officer, director, trustee, shareholder,
or member of such other party to the contract, and no such contract shall be
invalidated or rendered voidable by reason of the existence of any such
relationship, nor shall any Person holding such relationship be liable merely
by reason of such relationship for any loss or expense to the Trust under or
by reason of said contract or accountable for any profit realized directly or
indirectly therefrom, provided that the contract when entered into was
reasonable and fair and not inconsistent with the provisions of this Article
IV or the By-Laws. The same Person may be the other party to contracts entered
into pursuant to Sections 4.1 and 4.2 above or Article VII, and any individual
may be financially interested or otherwise affiliated with Persons who are
parties to any or all of the contracts mentioned in this Section 4.3.
ARTICLE V
Limitations of Liability
and Indemnification
5.1 No Personal Liability of Shareholders, Trustees, etc. No
Shareholder of the Trust shall be subject in such capacity to any personal
liability whatsoever to any Person in connection with Trust Property or the
acts, obligations or affairs of the Trust. Shareholders shall have the same
limitation of personal liability as is extended to stockholders of a private
corporation for profit incorporated under the Delaware General Corporation
Law. No Trustee or officer of the Trust shall be subject in such capacity to
any personal liability whatsoever to any Person, save only liability to the
Trust or its Shareholders arising from bad faith, willful misfeasance, gross
negligence or reckless disregard for his duty to such Person; and, subject to
the foregoing exception, all such Persons shall look solely to the Trust
Property for satisfaction of claims of any nature arising in connection with
the affairs of the Trust. If any Shareholder, Trustee or officer, as such, of
the Trust, is made a party to any suit or proceeding to enforce any such
liability, subject to the foregoing exception, he shall not, on account
thereof, be held to any personal liability. Any repeal or modification of this
Section 5.1 shall not adversely affect any right or protection of a Trustee or
officer of the Trust existing at the time of such repeal or modification with
respect to acts or omissions occurring prior to such repeal or modification.
5.2 Mandatory Indemnification. (a) The Trust hereby agrees to
indemnify each person who at any time serves as a Trustee or officer of the
Trust (each such person being an "indemnitee") against any liabilities and
expenses, including amounts paid in satisfaction of judgments, in compromise
or as fines and penalties, and reasonable counsel fees reasonably incurred by
such indemnitee in connection with the defense or disposition of any action,
suit or other proceeding, whether civil or criminal, before any court or
administrative or investigative body in which he may be or may have been
involved as a party or otherwise or with which he may be or may have been
threatened, while acting in any capacity set forth in this Article V by reason
of his having acted in any such capacity, except with respect to any matter as
to which he shall not have acted in good faith in the reasonable belief that
his action was in the best interest of the Trust or, in the case of any
criminal proceeding, as to which he shall have had reasonable cause to believe
that the conduct was unlawful, provided, however, that no indemnitee shall be
indemnified hereunder against any liability to any person or any expense of
such indemnitee arising by reason of (i) willful misfeasance, (ii) bad faith,
(iii) gross negligence, or (iv) reckless disregard of the duties involved in
the conduct of his position (the conduct referred to in such clauses (i)
through (iv) being sometimes referred to herein as "disabling conduct").
Notwithstanding the foregoing, with respect to any action, suit or other
proceeding voluntarily prosecuted by any indemnitee as plaintiff,
indemnification shall be mandatory only if the prosecution of such action,
suit or other proceeding by such indemnitee (1) was authorized by a majority
of the Trustees or (2) was instituted by the indemnitee to enforce his or her
rights to indemnification hereunder in a case in which the indemnitee is found
to be entitled to such indemnification. The rights to indemnification set
forth in this Declaration shall continue as to a person who has ceased to be a
Trustee or officer of the Trust and shall inure to the benefit of his or her
heirs, executors and personal and legal representatives. No amendment or
restatement of this Declaration or repeal of any of its provisions shall limit
or eliminate any of the benefits provided to any person who at any time is or
was a Trustee or officer of the Trust or otherwise entitled to indemnification
hereunder in respect of any act or omission that occurred prior to such
amendment, restatement or repeal.
(b) Notwithstanding the foregoing, no indemnification shall
be made hereunder unless there has been a determination (i) by a final
decision on the merits by a court or other body of competent jurisdiction
before whom the issue of entitlement to indemnification hereunder was brought
that such indemnitee is entitled to indemnification hereunder or, (ii) in the
absence of such a decision, by (1) a majority vote of a quorum of those
Trustees who are neither Interested Persons of the Trust nor parties to the
proceeding ("Disinterested Non-Party Trustees"), that the indemnitee is
entitled to indemnification hereunder, or (2) if such quorum is not obtainable
or even if obtainable, if such majority so directs, independent legal counsel
in a written opinion concludes that the indemnitee should be entitled to
indemnification hereunder. All determinations to make advance payments in
connection with the expense of defending any proceeding shall be authorized
and made in accordance with the immediately succeeding paragraph (c) below.
(c) The Trust shall make advance payments in connection with
the expenses of defending any action with respect to which indemnification
might be sought hereunder if the Trust receives a written affirmation by the
indemnitee of the indemnitee's good faith belief that the standards of conduct
necessary for indemnification have been met and a written undertaking to
reimburse the Trust unless it is subsequently determined that the indemnitee
is entitled to such indemnification and if a majority of the Trustees
determine that the applicable standards of conduct necessary for
indemnification appear to have been met. In addition, at least one of the
following conditions must be met: (i) the indemnitee shall provide adequate
security for his undertaking, (ii) the Trust shall be insured against losses
arising by reason of any lawful advances, or (iii) a majority of a quorum of
the Disinterested Non-Party Trustees, or if a majority vote of such quorum so
direct, independent legal counsel in a written opinion, shall conclude, based
on a review of readily available facts (as opposed to a full trial-type
inquiry), that there is substantial reason to believe that the indemnitee
ultimately will be found entitled to indemnification.
(d) The rights accruing to any indemnitee under these
provisions shall not exclude any other right which any person may have or
hereafter acquire under this Declaration, the By-Laws of the Trust, any
statute, agreement, vote of stockholders or Trustees who are not Interested
Persons of the Trust or any other right to which he or she may be lawfully
entitled.
(e) Subject to any limitations provided by the 1940 Act and
this Declaration, the Trust shall have the power and authority to indemnify
and provide for the advance payment of expenses to employees, agents and other
Persons providing services to the Trust or serving in any capacity at the
request of the Trust to the full extent corporations organized under the
Delaware General Corporation Law may indemnify or provide for the advance
payment of expenses for such Persons, provided that such indemnification has
been approved by a majority of the Trustees.
5.3 No Bond Required of Trustees. No Trustee shall, as such, be
obligated to give any bond or other security for the performance of any of his
duties hereunder.
5.4 No Duty of Investigation; Insurance, etc. No purchaser, lender,
transfer agent or other person dealing with the Trustees or with any officer,
employee or agent of the Trust 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, undertaking,
instrument, certificate, Share, other security of the Trust, and every other
act or thing whatsoever executed in connection with the Trust shall be
conclusively taken 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. The Trustees may maintain
insurance for the protection of the Trust Property, 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 or is required by the
1940 Act.
5.5 Reliance on Experts, etc. Each Trustee and officer or employee of
the Trust shall, in the performance of its duties, 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, upon an opinion of counsel, or upon reports made to the Trust by any of
the Trust's officers or employees or by any advisor, administrator, manager,
distributor, selected dealer, accountant, appraiser or other expert or
consultant 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 VI
Shares of Beneficial Interest
6.1 Beneficial Interest. The interest of the beneficiaries hereunder
shall be divided into an unlimited number of transferable shares of beneficial
interest, par value $.001 per share, any number of which may be preferred
shares. All Shares issued in accordance with the terms hereof, including,
without limitation, Shares issued in connection with a dividend in Shares or a
split of Shares, shall be fully paid and nonassessable when the consideration
determined by the Trustees (if any) therefor shall have been received by the
Trust.
6.2 Securities. The Trustees may, subject to the Fundamental Policies
and the requirements of the 1940 Act, authorize and issue such securities of
the Trust 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 authorize 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.
6.3 Rights of Shareholders. The Shares shall be personal property
giving only the rights in this Declaration specifically set forth. The
ownership of the Trust Property of every description and the right to conduct
any business herein before described are vested exclusively in the Trustees,
and the Shareholders shall have no interest therein other than the beneficial
interest conferred by their Shares, and they shall have no right to call for
any partition or division of any property, profits, rights or interests of the
Trust nor can they be called upon to share or assume any losses of the Trust
or, subject to the right of the Trustees to charge certain expenses directly
to Shareholders, as provided in the last sentence of Section 3.8, suffer an
assessment of any kind by virtue of their ownership of Shares. The Shares
shall not entitle the holder to preference, preemptive, appraisal, conversion
or exchange rights (except as specified in this Section 6.3, in Section 11.4
or as specified by the Trustees when creating the Shares, as in preferred
shares).
6.4 Trust Only. It is the intention of the Trustees to create only
the relationship of Trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention of the Trustees to
create a general partnership, limited partnership, joint stock association,
corporation, bailment or any form of legal relationship other than a trust.
Nothing in this Declaration shall be construed to make the Shareholders,
either by themselves or with the Trustees, partners or members of a joint
stock association.
6.5 Issuance of Shares. The Trustees, in their discretion, may from
time to time without vote of the Shareholders issue Shares including preferred
shares that may have been established pursuant to Section 6.2, in addition to
the then issued and outstanding Shares and Shares held in the treasury, to
such party or parties and for such amount and type of consideration, including
cash or property, at such time or times, and on such terms as the Trustees may
determine, and may in such manner acquire other assets (including the
acquisition of assets subject to, and in connection with the assumption of,
liabilities) and businesses. The Trustees may from time to time divide or
combine the Shares or any class or series thereof into a greater or lesser
number without thereby changing the proportionate beneficial interest in such
Shares. Issuances and redemptions of Shares may be made in whole Shares and/or
l/l,000ths of a Share or multiples thereof as the Trustees may determine.
6.6 Register of Shares. A register shall be kept at the offices of
the Trust or any transfer agent duly appointed by the Trustees under the
direction of the Trustees which shall contain the names and addresses of the
Shareholders and the number of Shares held by them respectively and a record
of all transfers thereof. Separate registers shall be established and
maintained for each class or series of Shares. Each such register shall be
conclusive as to who are the holders of the Shares of the applicable class or
series of Shares and who shall be entitled to receive dividends or
distributions or otherwise to exercise or enjoy the rights of Shareholders. No
Shareholder shall be entitled to receive payment of any dividend or
distribution, nor to have notice given to him as herein provided, until he has
given his address to a transfer agent or such other officer or agent of the
Trustees as shall keep the register for entry thereon. It is not contemplated
that certificates will be issued for the Shares; however, the Trustees, in
their discretion, may authorize the issuance of share certificates and
promulgate appropriate fees therefore and rules and regulations as to their
use.
6.7 Transfer Agent and Registrar. The Trustees shall have power to
employ a transfer agent or transfer agents, and a registrar or registrars,
with respect to the Shares. The transfer agent or transfer agents may keep the
applicable register and record therein, the original issues and transfers, if
any, of the said Shares. Any such transfer agents and/or registrars shall
perform the duties usually performed by transfer agents and registrars of
certificates of stock in a corporation, as modified by the Trustees.
6.8 Transfer of Shares. Shares shall be transferable on the records
of the Trust only by the record holder thereof or by its agent thereto duly
authorized in writing, upon delivery to the Trustees or a transfer agent of
the Trust of a duly executed instrument of transfer, together with such
evidence of the genuineness of each such execution and authorization and of
other matters as may reasonably be required. Upon such delivery the transfer
shall be recorded on the applicable register of the Trust. Until such record
is made, the Shareholder of record shall be deemed to be the holder of such
Shares for all purposes hereof and neither the Trustees nor any transfer agent
or registrar nor any officer, employee or agent of the Trust shall be affected
by any notice of the proposed transfer.
Any person becoming entitled to any Shares in consequence of the
death, bankruptcy, or incompetence of any Shareholder, or otherwise by
operation of law, shall be recorded on the applicable register of Shares as
the holder of such Shares upon production of the proper evidence thereof to
the Trustees or a transfer agent of the Trust, but until such record is made,
the Shareholder of record shall be deemed to be the holder of such for all
purposes hereof, and neither the Trustees nor any transfer agent or registrar
nor any officer or agent of the Trust shall be affected by any notice of such
death, bankruptcy or incompetence, or other operation of law.
6.9 Notices. Any and all notices to which any Shareholder hereunder
may be entitled and any and all communications shall be deemed duly served or
given if mailed, postage prepaid, addressed to any Shareholder of record at
his last known address as recorded on the applicable register of the Trust or
if delivered in any other manner permitted by applicable law or the
Shareholder.
ARTICLE VII
Custodians
7.1 Appointment and Duties. The Trustees shall at all times employ a
custodian or custodians, meeting the qualifications for custodians for
portfolio securities of investment companies contained in the 1940 Act, as
custodian with respect to the assets of the Trust. Any custodian shall have
authority as agent of the Trust with respect to which it is acting as
determined by the custodian agreement or agreements, but subject to such
restrictions, limitations and other requirements, if any, as may be contained
in the By-Laws of the Trust and the 1940 Act:
(1) to hold the securities owned by the Trust and deliver
the same upon written order;
(2) to receive any receipt for any moneys due to the Trust
and deposit the same in its own banking department (if a bank) or
elsewhere as the Trustees may direct;
(3) to disburse such funds upon orders or vouchers;
(4) if authorized by the Trustees, to keep the books and
accounts of the Trust and furnish clerical and accounting services;
and
(5) if authorized to do so by the Trustees, to compute the
net income or net asset value of the Trust;
all upon such basis of compensation as may be agreed upon between the Trustees
and the custodian.
The Trustees may also authorize each custodian to employ one or more
sub-custodians from time to time to perform such of the acts and services of
the custodian and upon such terms and conditions, as may be agreed upon
between the custodian and such sub-custodian and approved by the Trustees,
provided that in every case such sub-custodian shall meet the qualifications
for custodians contained in the 1940 Act.
7.2 Central Certificate System. Subject to such rules, regulations
and orders as the Commission may adopt, the Trustees may direct the custodian
to deposit all or any part of the securities owned by the Trust in a system
for the central handling of securities established by a national securities
exchange or a national securities association registered with the Commission
under the Securities Exchange Act of 1934, or such other Person as may be
permitted by the Commission, or otherwise in accordance with the 1940 Act,
pursuant to which system all securities of any particular class of any issuer
deposited within the system are treated as fungible and may be transferred or
pledged by bookkeeping entry without physical delivery of such securities,
provided that all such deposits shall be subject to withdrawal only upon the
order of the Trust.
ARTICLE VIII
Redemption
8.1 Redemptions. The Shares of the Trust are not redeemable by the
holders except that the terms of any preferred shares may provide that they
are redeemable by the holders to the extent provided therein.
8.2 Disclosure of Holding. The holders of Shares or other securities
of the Trust shall upon demand disclose to the Trustees in writing such
information with respect to direct and indirect ownership of Shares or other
securities of the Trust as the Trustees deem necessary to comply with the
provisions of the Code, the 1940 or other applicable laws or regulations, or
to comply with the requirements of any other taxing or regulatory authority.
ARTICLE IX
Determination of Net Asset Value
Net Income and Distributions
9.1 Net Asset Value. The net asset value of each outstanding common
Share of the Trust shall be determined at such time or times on such days as
the Trustees may determine, in accordance with the 1940 Act. The method of
determination of net asset value shall be determined by the Trustees and shall
be as set forth in the Prospectus or as may otherwise be determined by the
Trustees. The power and duty to make the net asset value calculations may be
delegated by the Trustees and shall be as generally set forth in the
Prospectus or as may otherwise be determined by the Trustees.
9.2 Distributions to Shareholders. (a) The Trustees shall from time
to time distribute ratably among the Shareholders of any class of Shares, or
any series of any such class, in accordance with the number of outstanding
full and fractional Shares of such class or any series of such class, such
proportion of the net profits, surplus (including paid-in surplus), capital,
or assets held by the Trustees as they may deem proper or as may otherwise be
determined in accordance with this Declaration. Any such distribution may be
made in cash or property (including without limitation any type of obligations
of the Trust or any assets thereof) or Shares of any class or series or any
combination thereof, and the Trustees may distribute ratably among the
Shareholders of any class of shares or series of any such class, in accordance
with the number of outstanding full and fractional Shares of such class or any
series of such class, additional Shares of any class or series in such manner,
at such times, and on such terms as the Trustees may deem proper or as may
otherwise be determined in accordance with this Declaration.
(b) Distributions pursuant to this Section 9.2 may be among
the Shareholders of record of the applicable class or series of Shares at the
time of declaring a distribution or among the Shareholders of record at such
later date as the Trustees shall determine and specify.
(c) The Trustees may always retain from the net profits such
amount as they may deem necessary to pay the debts or expenses of the Trust or
to meet obligations of the Trust, or as they otherwise may deem desirable to
use in the conduct of its affairs or to retain for future requirements or
extensions of the business.
(d) Inasmuch as the computation of net income and gains for
Federal income tax purposes may vary from the computation thereof on the
books, the above provisions shall be interpreted to give the Trustees the
power in their discretion to distribute for any fiscal year as ordinary
dividends and as capital gains distributions, respectively, additional amounts
sufficient to enable the Trust to avoid or reduce liability for taxes.
9.3 Power to Modify Foregoing Procedures. Notwithstanding any of the
foregoing provisions of this Article IX, the Trustees may prescribe, in their
absolute discretion except as may be required by the 1940 Act, such other
bases and times for determining the per share asset value of the Trust's
Shares or net income, or the declaration and payment of dividends and
distributions as they may deem necessary or desirable for any reason,
including to enable the Trust to comply with any provision of the 1940 Act, or
any securities exchange or association registered under the Securities
Exchange Act of 1934, or any order of exemption issued by the Commission, all
as in effect now or hereafter amended or modified.
ARTICLE X
Shareholders
10.1 Meetings of Shareholders. The Trust shall hold annual meetings
of the Shareholders (provided that the Trust's initial annual meeting of
Shareholders may occur up to one year after the completion of its initial
fiscal year). A special meeting of Shareholders may be called at any time by a
majority of the Trustees or the President and shall be called by any Trustee
for any proper purpose upon written request of Shareholders of the Trust
holding in the aggregate not less than 51% of the outstanding Shares of the
Trust or class or series of Shares having voting rights on the matter, such
request specifying the purpose or purposes for which such meeting is to be
called. Any shareholder meeting, including a special meeting, shall be held
within or without the State of Delaware on such day and at such time as the
Trustees shall designate.
10.2 Voting. Shareholders shall have no power to vote on any matter
except matters on which a vote of Shareholders is required by applicable law,
this Declaration or resolution of the Trustees. Except as otherwise provided
herein, any matter required to be submitted to Shareholders and affecting one
or more classes or series of Shares shall require approval by the required
vote of all the affected classes and series of Shares voting together as a
single class; provided, however, that as to any matter with respect to which a
separate vote of any class or series of Shares is required by the 1940 Act,
such requirement as to a separate vote by that class or series of Shares shall
apply in addition to a vote of all the affected classes and series voting
together as a single class. Shareholders of a particular class or series of
Shares shall not be entitled to vote on any matter that affects only one or
more other classes or series of Shares. There shall be no cumulative voting in
the election or removal of Trustees.
10.3 Notice of Meeting and Record Date. Notice of all meetings of
Shareholders, stating the time, place and purposes of the meeting, shall be
given by the Trustees by mail to each Shareholder of record entitled to vote
thereat at its registered address, mailed at least 10 days and not more than
90 days before the meeting or otherwise in compliance with applicable law.
Only the business stated in the notice of the meeting shall be considered at
such meeting. Any adjourned meeting may be held as adjourned one or more times
without further notice not later than 120 days after the record date. For the
purposes of determining the Shareholders who are entitled to notice of and to
vote at any meeting the Trustees may, without closing the transfer books, fix
a date not more than 90 nor less than 10 days prior to the date of such
meeting of Shareholders as a record date for the determination of the Persons
to be treated as Shareholders of record for such purposes.
10.4 Quorum and Required Vote. (a) The holders of a majority of the
Shares entitled to vote on any matter at a meeting present in person or by
proxy shall constitute a quorum at such meeting of the Shareholders for
purposes of conducting business on such matter. The absence from any meeting,
in person or by proxy, of a quorum of Shareholders for action upon any given
matter shall not prevent action at such meeting upon any other matter or
matters which may properly come before the meeting, if there shall be present
thereat, in person or by proxy, a quorum of Shareholders in respect of such
other matters.
(b) Subject to any provision of applicable law, this
Declaration or, to the extent not in conflict with a specific provision of
this Declaration other than this Section 10.4, a resolution of the Trustees
specifying a greater or a lesser vote requirement for the transaction of any
item of business at any meeting of Shareholders, (i) the affirmative vote of a
majority of the Shares present in person or represented by proxy and entitled
to vote on the subject matter and voting or abstaining on such matter shall be
the act of the Shareholders with respect to such matter, and (ii) where a
separate vote of one or more classes or series of Shares is required on any
matter, the affirmative vote of a majority of the Shares of such class or
series of Shares present in person or represented by proxy at the meeting
shall be the act of the Shareholders of such class or series with respect to
such matter. The Trustees are expressly authorized to adopt by-laws requiring
the affirmative vote of a majority of the outstanding Shares to elect a
Trustee; provided, however, that in the absence of such by-law Trustees shall
be elected by plurality vote.
10.5 Voting Rights, Proxies, etc. Only Shareholders of record shall
be entitled to vote. Each full Share shall be entitled to one vote and
fractional Shares shall be entitled to a vote of such fraction. At any meeting
of Shareholders, any holder of Shares entitled to vote thereat may vote by
properly authorized proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the Secretary, or with
such other officer or agent of the Trust as the Secretary may direct, for
verification prior to the time at which such vote shall be taken. The Trustees
may authorize the granting of proxies by any means they deem reasonable,
including by internet, telephone or other methods. Pursuant to a resolution of
a majority of the Trustees, proxies may be solicited in the name of one or
more Trustees or one or more of the officers or employees of the Trust. No
proxy shall be valid after the expiration of 11 months from the date thereof,
unless otherwise provided in the proxy. When any Share is held jointly by
several persons, any one of them may vote at any meeting in person or by proxy
in respect of such Share, but if more than one of them shall be present at
such meeting in person or by proxy, and such joint owners or their proxies so
present disagree as to any vote to be cast, such vote shall not be received in
respect of such Share. A proxy purporting to be given by or on behalf of a
Shareholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger.
If the holder of any such Share is a minor or a person of unsound mind, and
subject to guardianship or to the legal control of any other person as regards
the charge or management of such Share, he may vote by his guardian or such
other person appointed or having such control, and such vote may be given in
person or by proxy.
10.6 Reports. The Trustees shall cause to be prepared at least
annually and more frequently to the extent and in the form approved by the
Trustees or required by law, regulation or any exchange on which Shares are
listed a report of the Trust's operations.
10.7 Inspection of Records. The records of the Trust shall be open to
inspection by Shareholders to the same extent as is permitted shareholders of
a corporation formed under the Delaware General Corporation Law.
10.8 Shareholder Action by Written Consent. Any action which may be
taken by Shareholders by vote may be taken without a meeting if all of the
holders of Shares entitled to vote thereon consent to the action in writing
and the written consents are filed with the records of the meetings of
Shareholders. Such consent shall be treated for all purposes as a vote taken
at a meeting of Shareholders.
ARTICLE XI
Duration; Termination of Trust;
Amendment; Mergers, Etc.
11.1 Duration. Subject to possible termination in accordance with the
provisions of Section 11.2 hereof, the Trust created hereby shall have
perpetual existence.
11.2 Termination. (a) The Trust may be dissolved, after a majority of
the Trustees in office have approved a resolution therefor, upon approval by
not less than 75% of the Shares of each class or series outstanding and
entitled to vote, voting as separate classes or series. Upon the dissolution
of the Trust:
(i) The Trust shall carry on no business except for the
purpose of winding up its affairs.
(ii) The Trustees shall proceed to wind up the affairs of
the Trust and all of the powers of the Trustees under this
Declaration shall continue until the affairs of the Trust shall have
been wound up, including the power to fulfill or discharge the
contracts of the Trust, collect its assets, sell, convey, assign,
exchange, merge where the Trust is not the survivor, transfer or
otherwise dispose of all or any part of the remaining Trust Property
to one or more Persons at public or private sale for consideration
which may consist in whole or in part in cash, securities or other
property of any kind, discharge or pay its liabilities, and do all
other acts appropriate to liquidate its business; provided that any
sale, conveyance, assignment, exchange, merger in which the Trust is
not the survivor, transfer or other disposition of all or
substantially all the Trust Property of the Trust shall require
approval of the principal terms of the transaction and the nature and
amount of the consideration by Shareholders with the same vote as
required to open-end the Trust.
(iii) After paying or adequately providing for the payment
of all liabilities, and upon receipt of such releases, indemnities
and refunding agreements, as they deem necessary for their
protection, the Trustees may distribute the remaining Trust Property,
in cash or in kind or partly each, among the Shareholders according
to their respective rights.
(b) After the winding up and termination of the Trust and
distribution to the Shareholders as herein provided, a majority of the
Trustees shall execute and lodge among the records of the Trust an instrument
in writing setting forth the fact of such termination and shall execute and
file a certificate of cancellation with the Secretary of State of the State of
Delaware. Upon termination of the Trust, the Trustees shall thereupon be
discharged from all further liabilities and duties hereunder, and the rights
and interests of all Shareholders shall thereupon cease.
11.3 Amendment Procedure. (a) Except as provided in this Section
11.3, this Declaration may be amended, after a majority of the Trustees in
office have approved a resolution therefor, upon approval by a Majority
Shareholder Vote. The Trustees also may amend this Declaration without any
vote of Shareholders of any class of series to divide the Shares of the Trust
into one or more classes or additional classes, or one or more series of any
such class or classes, to determine the terms of any class or series of
Shares, to change the name of the Trust or any class or series of Shares, to
make any change that does not adversely affect the relative rights or
preferences of any Shareholder, to make any further amendments to the terms of
any class or series of Shares authorized by such terms to be made by the
Trustees without Shareholder approval, as they may deem necessary, or to
conform this Declaration to the requirements of the 1940 Act or any other
applicable federal laws or regulations including pursuant to Section 6.2 or
the requirements of the regulated investment company provisions of the Code,
but the Trustees shall not be liable for failing to do so.
(b) No amendment may be made to Section 2.1, Section 2.2,
Section 2.3, Section 3.9, Section 5.1, Section 5.2, Section 11.2(a), this
Section 11.3, Section 11.4, Section 11.6 or Section 11.7 of this Declaration
and no amendment may be made to this Declaration which would change any rights
with respect to any Shares of the Trust by reducing the amount payable thereon
upon liquidation of the Trust or by diminishing or eliminating any voting
rights pertaining thereto (except that this provision shall not limit the
ability of the Trustees to authorize, and to cause the Trust to issue,
securities pursuant to Section 6.2), except after a majority of the Trustees
have approved a resolution therefor, by the affirmative vote of the holders of
not less than seventy-five percent (75%) of the Shares of each affected class
or series outstanding, voting as separate classes or series. Nothing contained
in this Declaration shall permit the amendment of this Declaration to impair
the exemption from personal liability of the Shareholders, Trustees, officers,
employees and agents of the Trust or to permit assessments upon Shareholders.
(c) An amendment duly adopted by the requisite vote of the
Board of Trustees and, if required, the Shareholders as aforesaid, shall
become effective at the time of such adoption or at such other time as may be
designated by the Board of Trustees or Shareholders, as the case may be. A
certification in recordable form signed by a majority of the Trustees setting
forth an amendment and reciting that it was duly adopted by the Trustees and,
if required, the Shareholders as aforesaid, or a copy of the Declaration, as
amended, in recordable form, and executed by a majority of the Trustees, shall
be conclusive evidence of such amendment when lodged among the records of the
Trust or at such other time designated by the Board.
Notwithstanding any other provision hereof, until such time as a
Registration Statement under the Securities Act of 1933, as amended, covering
the first public offering of Shares of the Trust shall have become effective,
this Declaration may be terminated or amended in any respect by the
affirmative vote of a majority of the Trustees or by an instrument signed by a
majority of the Trustees.
11.4 Merger, Consolidation and Sale of Assets. Except as provided in
Section 11.7, the Trust or any subsidiary having a net asset value in excess
of 25% of the net asset value of 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 favorable vote of a majority of the
Trustees then in office followed by the favorable vote of the holders of not
less than seventy-five percent (75%) of the Shares; provided, however, that if
such other corporation, association, trust or other organization shall have
provisions in its governing documents substantially equivalent to Section 10.4
and Sections 11.1, 11.2, 11.3, this Section 11.4, 11.6 and 11.7 of this
Declaration, such Shareholder approval shall be by a Majority Shareholder Vote
and any such merger, consolidation, sale, lease or exchange shall be
determined for all purposes to have been accomplished under and pursuant to
the statutes of the State of Delaware.
11.5 Subsidiaries. Without approval by Shareholders, the Trustees may
cause to be organized or assist in organizing one or more corporations,
trusts, partnerships, associations or other organizations to take over any
portion of the Trust Property or to carry on any business in which the Trust
shall directly or indirectly have any interest, and to sell, convey and
transfer all or a portion of the Trust Property to any such corporation,
trust, limited liability company, association or organization in exchange for
the shares or securities thereof, or otherwise, and to lend money to,
subscribe for the shares or securities of, and enter into any contracts with
any such corporation, trust, limited liability company, partnership,
association or organization, or any corporation, partnership, trust, limited
liability company, association or organization in which the Trust holds or is
about to acquire shares or any other interests.
11.6 Conversion. 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 seventy-five percent (75%) 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 such
class or series of Shares a "redeemable security" as that term is defined in
the 1940 Act. 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.
11.7 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 of the holders of not
less than seventy-five percent (75%) of the Shares of each affected class or
series outstanding, 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
outstanding class or series and shall include any affiliate or associate, as
such terms are defined in clause (ii) below, of a Principal Shareholder, and
any affiliated person, as such term is defined in Section 2(a)(3)(i)-(iii) of
the 1940 Act, of such Principal Shareholder. For the purposes 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 such corporation, Person or other
entity or any "affiliate" or "associate" (as defined below) thereof has any
agreement, arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of Shares, or which is an "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 of such corporation, Person or other
entity, 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 cash (other than pursuant to any automatic
dividend reinvestment plan) unless immediately after giving effect to
such issuance, such Principal Shareholder beneficially owns less than
15% of the total voting power of the Shares.
(iii) The sale, lease or exchange of all or any substantial
part of the assets of the Trust to any Principal Shareholder (except
assets having an aggregate fair market value of less than 5% of the
total assets of the Trust, 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 5% of the total assets of
the Trust, 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
80% 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 a
Majority Shareholder 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 owned 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," "associate" or
"affiliated person" (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 5%, 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.
ARTICLE XII
Miscellaneous
12.1 Filing. (a) This Declaration and any amendment or supplement
hereto shall be filed in such places as may be required or as the Trustees
deem appropriate. Each amendment or supplement shall be accompanied by a
certificate signed and acknowledged by a Trustee or the President stating that
such action was duly taken in a manner provided herein, and shall, upon
insertion in the Trust's minute book, be conclusive evidence of all amendments
contained therein. A restated Declaration, containing the original Declaration
and all amendments and supplements theretofore made, may be executed from time
to time by a majority of the Trustees in office and shall, upon insertion in
the Trust's minute book, be conclusive evidence of all amendments and
supplements contained therein and may thereafter be referred to in lieu of the
original Declaration and the various amendments and supplements thereto.
(b) The Trustees hereby authorize and direct a Certificate
of Trust, in the form attached hereto as Exhibit A, to be executed and filed
with the Office of the Secretary of State of the State of Delaware in
accordance with the Delaware Statutory Trust Act.
12.2 Resident Agent. The Trust shall maintain a resident agent in the
State of Delaware, which agent shall initially be The Corporation Trust
Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 The Trustees may
designate a successor resident agent, provided, however, that such appointment
shall not become effective until written notice thereof is delivered to the
office of the Secretary of the State.
12.3 Governing Law. This Declaration is executed by the Trustees and
delivered in the State of Delaware and with reference to the laws thereof, and
the rights of all parties and the validity and construction of every provision
hereof shall be subject to and construed according to laws of said State and
reference shall be specifically made to the Delaware General Corporation Law
as to the construction of matters not specifically covered herein or as to
which an ambiguity exists, although such law shall not be viewed as limiting
the powers otherwise granted to the Trustees hereunder and any ambiguity shall
be viewed in favor of such powers.
12.4 Counterparts. This Declaration may be simultaneously executed in
several counterparts, each of which shall be deemed to be an original, and
such counterparts, together, shall constitute one and the same instrument,
which shall be sufficiently evidenced by any such original counterpart.
12.5 Reliance by Third Parties. Any certificate executed by an
individual who, according to the records of the Trust, or of any recording
office in which this Declaration may be recorded, appears to be a Trustee
hereunder, certifying to: (a) the number or identity of Trustees or
Shareholders, (b) the name of the Trust, (c) the due authorization of the
execution of any instrument or writing, (d) the form of any vote passed at a
meeting of Trustees or Shareholders, (e) the fact that the number of Trustees
or Shareholders present at any meeting or executing any written instrument
satisfies the requirements of this Declaration, (f) the form of any By Laws
adopted by or the identity of any officers elected by the Trustees, or (g) the
existence of any fact or facts which in any manner relate to the affairs of
the Trust, shall be conclusive evidence as to the matters so certified in
favor of any person dealing with the Trustees and their successors.
12.6 Provisions in Conflict with Law or Regulation. (a) The
provisions of this Declaration are severable, and if the Trustees shall
determine, with the advice of counsel, that any of such provisions is in
conflict with the 1940 Act, the regulated investment company provisions of the
Internal Revenue Code 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.
(b) If any provision of this Declaration shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provision in any other jurisdiction or any
other provision of this Declaration in any jurisdiction.
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ Xxxx X. Xxxxxxxx
--------------------
Xxxx X. Xxxxxxxx
Trustee
