Exhibit 99.(a)(1)
[SEAL]
THE MASSACHUSETTS HEALTH & EDUCATION TAX-EXEMPT TRUST
AGREEMENT AND DECLARATION OF TRUST
April 20, 1993
MASSACHUSETTS HEALTH & EDUCATION TAX-EXEMPT TRUST
AGREEMENT AND DECLARATION OF TRUST
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ARTICLE I. NAME AND DEFINITIONS 1
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Section 1.1 1
Section 1.2 Definitions 1
(a) "Trust"
(b) "Trustees" 1
(c) "Shares" 2
(d) "Shareholder" 2
(e) "1940 Act" 2
(f) "Commission" 2
(g) "Declaration of Trust" 2
(h) "By-Laws" 2
(i) "Securities" or "Security" 2
ARTICLE II. PURPOSE OF TRUST 2
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ARTICLE III. THE TRUSTEES 2
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Section 3.1 Number, Designation, Election, Term, etc. 2
(a) Trustees 2
(b) Number 2
(c) Election and Term 2
(d) Right to Elect Majority
of Board of Trustees 3
(e) Resignation and Retirement 4
(f) Removal 4
(g) Vacancies 4
(h) Effect of Death, Resignation, etc. 4
(i) No Accounting 5
Section 3.2 Powers of Trustees 5
(a) Investments 6
(b) Disposition of Assets 6
(c) Ownership Powers 6
(d) Subscription 6
(e) Form of Holding 6
(f) Reorganization, etc. 6
(g) Voting Trusts, etc. 7
(h) Compromise 7
(i) Partnerships, etc. 7
(i)
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(j) Borrowing and Security 7
(k) Guarantees, etc. 7
(1) Insurance 7
(m) Pensions, etc. 8
Section 3.3 Certain Contracts 8
(a) Advisory 8
(b) Administration 8
(c) Distribution 9
(d) Custodian and Depository 9
(e) Transfer and Dividend
Disbursing Agency 9
(f) Shareholder Servicing 9
(g) Accounting 9
Section 3.4 Payment of Trust Expenses and
Compensation of Trustees 10
Section 3.5 Ownership of Assets of the Trust 10
ARTICLE IV. SHARES 11
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Section 4.1 Description of Shares 11
(a) Preferred Shares 11
(b) Common Shares 12
(c) Transfer of Shares 12
(d) Fractions 13
Section 4.2 Ownership of Shares 13
Section 4.3 Investments in the Trust 13
Section 4.4 No Preemptive Rights 14
Section 4.5 Status of Shares and Limitation of
Personal Liability 14
Section 4.6 No Appraisal Rights 14
ARTICLE V. SHAREHOLDERS' VOTING POWERS AND MEETINGS 14
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Section 5.1 Voting Powers 14
Section 5.2 Meetings 15
Section 5.3 Record Dates 16
(ii)
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Section 5.4 Quorum and Required Vote 16
Section 5.5 Action by Written Consent 16
Section 5.6 Inspection of Records 17
Section 5.7 Additional Provisions 17
Section 5.8 Shareholder Communications 17
ARTICLE VI. LIMITATION OF LIABILITY; INDEMNIFICATION 18
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Section 6.1 Trustees, Shareholders, etc.
Not Personally Liable; Notice 18
Section 6.2 Trustee's Good Faith Action; Expert
Advice; No Bond or Surety 18
Section 6.3 Indemnification of Shareholders 19
Section 6.4 Indemnification of Trustees,
Officers, etc. 19
Section 6.5 Compromise Payment 20
Section 6.6 Indemnification Not Exclusive, etc. 20
Section 6.7 Liability of Third Persons Dealing
with Trustees 21
ARTICLE VII. MISCELLANEOUS 21
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Section 7.1 Duration and Termination of Trust 21
Section 7.2 Reorganization 21
Section 7.3 Amendments 22
Section 7.4 Conversion 23
Section 7.5 Filing of Copies; References; Headings 24
Section 7.6 Applicable Law 24
(iii)
MASSACHUSETTS HEALTH & EDUCATION TAX-EXEMPT TRUST
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made at Boston, Massachusetts this 20th
day of April, 1993, by the Trustee hereunder.
WITNESSETH
WHEREAS, the Trustee desires to establish a trust for the purposes of
carrying on the business of a management investment company; and
WHEREAS, in furtherance of such purposes, the Trustee and any successor
Trustees elected in accordance with Article III hereof are acquiring and may
hereafter acquire assets and properties which they will hold and manage as
trustees of a Massachusetts business trust with transferable shares in
accordance with the provisions hereinafter set forth;
NOW THEREFORE, the Trustee and any successor Trustees elected in
accordance with Article III hereof hereby declare that they will hold all cash,
securities and other assets and properties, which they may from time to time
acquire in any manner as Trustees hereunder, IN TRUST, that they will 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
NAME AND DEFINITIONS
Section 1.1 Name. This Trust shall be known as THE MASSACHUSETTS HEALTH &
EDUCATION TAX-EXEMPT 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.
Section 1.2 Definitions. Whenever used herein, unless otherwise required
by the context or specifically provided:
(a) The "Trust" refers to the Massachusetts business trust governed by
this Agreement and Declaration of Trust, as amended from time to time;
(b) "Trustees" refers to the various Trustees of the Trust named herein or
elected in accordance with Article III;
(c) "Shares" refers to the various transferable units of interest into
which the beneficial interest in the Trust shall be divided from time to time;
(d) "Shareholder" means a record owner of Shares;
(e) The "1940 Act" refers to the Investment Company Act of 1940 and the
Rules and Regulations thereunder, all as amended from time to time;
(f) The term "Commission" shall have the meaning given it in the 1940 Act;
(g) "Declaration of Trust" shall mean this Agreement and Declaration of
Trust as amended or restated from time to time;
(h) "By-Laws" shall mean the By-Laws of the Trust as amended from time to
time; and
(i) "Securities" or "Security" shall mean and include, but shall not be
limited to, those securities described in Section 2(a)(36) of the 1940 Act.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to operate as an investment company and to
offer Shareholders of the Trust an investment program primarily in Securities or
other property.
ARTICLE III
THE TRUSTEES
Section 3.1 Number, Designation, Election, Term, etc.
(a) Trustees. As of the date of this Declaration of Trust ▇▇▇▇▇ ▇▇▇▇▇
shall be the Trustee hereof.
(b) Number. The Trustee(s) serving as such, whether named above or
hereafter becoming a Trustee, may increase or decrease the number of Trustees to
a number other than the number theretofore determined. No decrease in the number
of Trustees shall have the effect of removing any Trustee from office prior to
the expiration of his term, but the number of Trustees may be decreased in
conjunction with the removal of a Trustee pursuant to subsection (c) of this
Section 3.1.
(c) Election and Term. The Trustees shall be elected by the Shareholders
of the Trust voting as a single class;
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provided, however, that at any meeting of the Shareholders of the Trust held for
the election of trustees, the holders of a majority of the shares of Preferred
Shares (as defined) represented in person or by proxy at said meeting shall be
entitled as a class, to the exclusion of the holders of the Common Shares (as
defined), to elect two trustees of the Trust, provided further, however, that
the identity of the two trustees representing the holders of Preferred Shares on
and after the date as of which the Board of Trustees provides for the issuance
of Preferred Shares until the first meeting of the Trust's Shareholders
following the date as of which the Board of Trustees provides for the issuance
of Preferred Shares may be designated by the Board of Trustees. Subject to
paragraph (d) of this Section 3.1, the holders of a majority of the Common
Shares shall be entitled to elect the balance of the trustees. In the event the
Trust shall be required to hold annual meetings of Shareholders under its
By-Laws pursuant to Section 5.2 of this Declaration of Trust, each Trustee shall
hold office until the next annual meeting of Shareholders or until his successor
shall have been elected and qualified. In the event the Trust shall not be
required under the By-Laws to hold annual meetings of Shareholders, each Trustee
then serving or thereafter becoming a Trustee shall serve as a Trustee during
the lifetime of this Trust and until its termination as hereinafter provided
except as such Trustee sooner dies, resigns, retires or is removed or until such
time as the Trust shall again be required under its By-Laws to hold annual
meetings of shareholders. Subject to the provisions of the 1940 Act, the
Trustees may elect their own successors and may, pursuant to Section 3.1(f)
hereof, appoint Trustees to fill vacancies.
(d) Right to Elect Majority of Board of Trustees. If at any time,
dividends on any outstanding Preferred Shares are unpaid in an amount equal to
two full years' dividends thereon, the number of trustees constituting the Board
of Trustees shall be automatically increased by the smallest number that, when
added to the number of trustees then constituting the Board of Trustees, shall
(together with the two trustees elected by the holders of the Preferred Shares
pursuant to paragraph (c) of this Section 3.1) constitute a majority of such
increased number, and such holders shall be entitled, voting as a single class
on a one-vote-per-share basis (to the exclusion of the holders of all other
securities and classes of capital stock of the Trust), to elect the smallest
number of additional trustees of the Trust that shall constitute a majority of
the total number of trustees of the Trust so increased. Upon the payment of all
unpaid dividends, the voting rights described in this paragraph (d) shall cease,
subject always, however, to the revesting of such voting rights in the holders
of the Preferred Shares upon the further occurrence of the event described in
this paragraph (d).
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(e) Resignation and Retirement. Any Trustee may resign his trust or retire
as a Trustee, by written instrument signed by him and delivered to the other
Trustees or to any officer of the Trust, and such resignation or retirement
shall take effect upon such delivery or upon such later date as is specified in
such instrument. Any Trustee who has become incapacitated by illness or injury
may be retired by a written instrument signed by a majority of the other
Trustees, specifying the date of such retirement.
(f) Removal. Any Trustee may be removed with or without cause at any time:
(i) by written instrument, signed by at least two-thirds of the number of
Trustees in office immediately prior to such removal, specifying the date upon
which such removal shall become effective; or (ii) by vote of Shareholders
holding not less than two-thirds of the outstanding Shares of the class or
classes of Shares that elected such Trustee,. cast in person or by proxy at any
meeting called for the purpose; or (iii) by a. written declaration signed by
Shareholders holding not less than two-thirds of the outstanding Shares of the
class or classes that elected such Trustee and filed with the Trust's custodian.
(g) Vacancies. Any vacancy or anticipated vacancy resulting from any
reason, including without limitation the death, resignation, retirement, removal
or incapacity of any of the Trustees, or resulting from an increase in the
number of Trustees by the other Trustees may (but so long as there are at least
two remaining Trustees, need not unless required by the ▇▇▇▇ ▇▇▇) be filled by a
majority of the remaining Trustees, subject to the provisions of the 1940 Act,
through the appointment in writing of such other person as such remaining
Trustees in their discretion shall determine and such appointment shall be
effective upon the written acceptance of the person named therein to serve as a
Trustee and agreement by such person to be bound by the provisions of this
Declaration of Trust, except that any such appointment in anticipation of a
vacancy to occur by reason of retirement, resignation or increase in number of
Trustees to be effective at a later date shall become effective only at or after
the effective date of said retirement, resignation or increase in number of
Trustees; provided, however, that any trustee appointed to replace one of the
two Trustees elected by the holders of the Preferred Shares shall serve as if he
or she had been elected by such holders of Preferred Shares. As soon as any
Trustee so appointed shall have accepted such appointment and shall have agreed
in writing to be bound by this Declaration of Trust and the appointment is
effective, the Trust estate shall vest in the new Trustee, together with the
continuing Trustees, without any further act or conveyance.
(h) Effect of Death, Resignation, etc. The death, resignation, retirement,
removal or incapacity of the Trustees,
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or any one of them, shall not operate to annul or terminate the Trust or to
revoke or terminate any existing agency or contract created or entered into
pursuant to the terms of this Declaration of Trust.
(i) No Accounting. Except to the extent required by the 1940 Act or under
circumstances which would justify his removal for cause, no person ceasing to be
a Trustee as a result of his death, resignation, retirement, removal or
incapacity (nor the estate of any such person) shall be required to make an
accounting to the Shareholders or remaining Trustees upon such cessation.
Section 3.2 Powers of Trustees. The Trustees in all instances shall act as
principals, and are and shall be free from the control of the Shareholders. The
Trustees shall have full power and authority to do any and all acts and to make
and execute any and all contracts and instruments that they may consider
necessary or appropriate in connection with the management of the Trust. The
Trustees shall not be bound or limited by present or future laws or customs with
regard to investment by trustees or fiduciaries, but shall have full authority
and absolute power and control over the assets of the Trust and the business of
the Trust to the same extent as if the Trustees were the sole owners of the
assets of the Trust and the business in their own right, including such
authority, power and control to do all acts and things as they, in their
uncontrolled discretion, shall deem proper to accomplish the purposes of this
Trust. Without limiting the foregoing, the Trustees may adopt By-Laws not
inconsistent with this Declaration of Trust providing for the conduct of the
business and affairs of the Trust and may amend and repeal them to the extent
that such By-Laws do not reserve that right to the Shareholders; they may ▇▇▇ or
be sued in the name of the Trust; they may as they consider appropriate elect
and remove officers and appoint and terminate agents and consultants and hire
and terminate employees, any one or more of the foregoing of whom may be a
Trustee, and may provide for the compensation of all of the foregoing; they may
appoint from their own number, and terminate, any one or more committees
consisting of two or more Trustees, including without implied limitation an
executive committee, which may, when the Trustees are not in session and subject
to the 1940 Act, exercise some or all of the power and authority of the Trustees
as the Trustees may determine; in accordance with Section 3.3 they may employ
one or more advisers, administrators, depositories and custodians and may
authorize any depository or custodian to employ subcustodians or agents and to
deposit all or any part of such assets in a system or systems for the central
handling of securities and debt instruments, retain transfer, dividend,
accounting or Shareholder servicing agents or any of the foregoing, provide for
the distribution of Shares by the Trust through one or more principal
underwriters or otherwise, set record dates or times
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for the determination of Shareholders or various of them with respect to various
matters; they may compensate or provide for the compensation of the Trustees,
officers, advisers, administrators, custodians, other agents, consultants and
employees of the Trust or the Trustees on such terms as they deem appropriate;
and in general they may delegate to any officer of the Trust, to any committee
of the Trustees and to any employee, adviser, administrator, distributor,
depository, custodian, transfer and dividend disbursing agent, or any other
agent or consultant of the Trust such authority, powers, functions and duties as
they consider desirable or appropriate for the conduct of the business and
affairs of the Trust, including without implied limitation the power and
authority to act in the name of the Trust and of the Trustees, to sign documents
and to act as attorney-in-fact for the Trustees.
Without limiting the foregoing and to the extent not inconsistent with the
1940 Act, other applicable law or any resolution of the Trustees which
authorizes the issuance of Preferred Shares, the Trustees shall have power and
authority for and on behalf of the Trust:
(a) Investments. To invest and reinvest cash and other property, and to
hold cash or other property uninvested without in any event being bound or
limited by any present or future law or custom in regard to investments by
trustees;
(b) Disposition of Assets. To sell, exchange, lend, pledge, mortgage,
hypothecate, write options on and lease any or all of the assets of the Trust;
(c) Ownership Powers. To vote or give assent, or exercise any rights of
ownership, with respect to Securities or other property; and to execute and
deliver proxies or powers of attorney to such person or persons as the Trustees
shall deem proper, granting to such person or persons such power and discretion
with relation to Securities or other property as the Trustees shall deem proper;
(d) Subscription. To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of Securities;
(e) Form of Holding. To hold any Securities or other property in a form
not indicating any trust, whether in bearer, unregistered or other negotiable
form, or in the name of the Trustees or of the Trust or in the name of a
custodian, subcustodian or other depositary or a nominee or nominees or
otherwise;
(f) Reorganization, etc. To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer, any
Security of which is or was held in
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the Trust; to consent to any contract, lease, mortgage, purchase or sale of
property by such corporation or issuer, and to pay calls or subscriptions with
respect to any Security held in the Trust;
(g) Voting Trusts, etc. To join with other holders of any Securities in
acting through a committee, depositary, voting trustee or otherwise, and in that
connection to deposit any Security with, or transfer any Security to, any such
committee, depositary or trustee, and to delegate to them such power and
authority with relation to any Security (whether or not so deposited or
transferred) as the Trustees shall deem proper, and to agree to pay, and to pay,
such portion of the expenses and compensation of such committee, depositary or
trustee as the Trustees shall deem proper;
(h) Compromise. 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;
(i) Partnerships, etc. To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(j) Borrowing and Security. To borrow funds and to mortgage and pledge the
assets of the Trust or any part thereof to secure obligations arising in
connection with such borrowing;
(k) Guarantees, etc. To endorse or guarantee the payment of any notes or
other obligations of any person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof; and to mortgage and pledge the
Trust property or any part thereof to secure any of or all such obligations;
(1) Insurance. To purchase and pay for entirely out of Trust property such
insurance as they may deem necessary or appropriate for the conduct of the
business, including, without limitation, insurance policies' insuring the assets
of the Trust and payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, consultants, investment advisers, managers,
administrators, distributors, principal underwriters, or independent
contractors, or any thereof (or any person connected therewith), of the Trust
individually against all claims and liabilities of every nature arising by
reason of 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 in
any such capacity, 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 such liability; and
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(m) Pensions, etc. To pay pensions for faithful service, as deemed
appropriate by the Trustees, and to adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, trust and provisions, including the
purchasing of life insurance and annuity contracts as a means of providing such
retirement and other benefits, for any or all of the Trustees, officers,
employees and agents of the Trust.
Except as otherwise provided by the 1940 Act or other applicable law, this
Declaration of Trust or the By-Laws, any action to be taken by the Trustees on
behalf of the Trust may be taken by a majority of the Trustees present at a
meeting of Trustees (a quorum, consisting of at least a majority of the Trustees
then in office, being present), within or without Massachusetts, including any
meeting held by means of a conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other at the same time and participation by such means shall constitute
presence in person at a meeting, or by written consents of a majority of the
Trustees then in office (or such larger or different number as may be required
by the 1940 Act or other applicable law).
Section 3.3 Certain Contracts. Subject to compliance with the provisions
of the 1940 Act, but notwithstanding any limitations of present and future law
or custom in regard to delegation of powers by trustees generally, the Trustees
may, at any time and from time to time and without limiting the generality of
their powers and authority otherwise set forth herein, enter into one or more
contracts with any one or more corporations, trusts, associations, partnerships,
limited partnerships, other type of organizations, or individuals ("Contracting
Party"), to provide for the performance and assumption of some or all of the
following services, duties and responsibilities to, for or on behalf of the
Trust and/or the Trustees, and to provide for the performance and assumption of
such other services, duties and responsibilities in addition to those set forth
below as the Trustees may determine appropriate:
(a) Advisory. Subject to the general supervision of the Trustees and in
conformity with the stated policy of the Trustees with respect to the
investments of the Trust, to manage such investments and assets, make investment
decisions with respect thereto, and to place purchase and sale orders for
portfolio transactions relating to such investments and assets;
(b) Administration. Subject to the general supervision of the Trustees and
in conformity with any policies of the Trustees with respect to the operations
of the Trust, to supervise all or any part of the operations of the Trust, and
to provide all or any part of the administrative and clerical personnel, office
space and office equipment and services
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appropriate for the efficient administration and operations of the Trust,
(c) Distribution. To distribute the Shares of the Trust, to be principal
underwriter of such Shares, and/or to act as agent of the Trust in the sale of
Shares and the acceptance or rejection of orders for the purchase of Shares;
(d) Custodian and Depository. To act as depository for and to maintain
custody of the property of the Trust and accounting records in connection
therewith;
(e) Transfer and Dividend Disbursing Agency. To maintain records of the
ownership of outstanding Shares, the issuance and redemption and the transfer
thereof, and to disburse any dividends declared by the Trustees and in
accordance with the policies of the Trustees and/or the instructions of any
particular Shareholder to reinvest any such dividends;
(f) Shareholder Servicing. To provide service with respect to the
relationship of the Trust and its Shareholders, records with respect to
Shareholders and their Shares, and similar matters; and
(g) Accounting. To handle all or any part of the accounting
responsibilities, whether with respect to the Trust's properties, Shareholders
or otherwise.
The same person may be the Contracting Party for some or all of the
services, duties and responsibilities to, for and of the Trust and/or the
Trustees, and the contracts with respect thereto may contain such terms
interpretive of or in addition to the delineation of the services, duties and
responsibilities provided for, including provisions that are not inconsistent
with the 1940 Act relating to the standard of duty of and the rights to
indemnification of the Contracting Party and others, as the Trustees may
determine. Nothing herein shall preclude, prevent or limit the Trust or a
Contracting Party from entering into subcontractual arrangements relative to any
of the matters referred to in Sections 3.3(a) through (g) hereof.
The fact that:
(i) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager,
adviser, principal underwriter or distributor or agent of or for any
Contracting Party, or of or for any parent or affiliate of any Contracting
Party or that the Contracting Party or any parent or affiliate thereof is
a Shareholder or has an interest in the Trust, or that
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(ii) any Contracting Party may have a contract providing for the
rendering of any similar services to one or more other corporations,
trusts, associations, partnerships, limited partnerships or other
organizations, or have other business or interests,
shall not affect the validity of any contract for the performance and assumption
of services, duties and responsibilities to, for or of the Trust and/or the
Trustees 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, provided that in the case of any relationship or
interest referred to in the preceding clause (i) on the part of any Trustee or
officer of the Trust either (x) the material facts as to such relationship or
interest have been disclosed to or are known by the Trustees not having any such
relationship or interest and the contract involved is approved in good faith by
a majority of such Trustees not having any such relationship or interest (even
though such unrelated or disinterested Trustees are less than a quorum of all of
the Trustees), (y) the material facts as to such relationship or interest and as
to the contract have been disclosed to or are known by the Shareholders entitled
to vote thereon and the contract involved is specifically approved in good faith
by vote of the Shareholders, or (z) the specific contract involved is fair to
the Trust as of the time it is authorized, approved or ratified by the Trustees
or by the Shareholders.
Section 3.4 Payment of Trust Expenses and Compensation of Trustees. The
Trustees are authorized to pay or to cause to be paid out of the principal or
income of the Trust or partly out of principal and partly out of income, all
expenses, fees, charges, taxes and liabilities incurred or arising in connection
with the Trust, or in connection with the management thereof, including, but not
limited to, the Trustees compensation and such expenses and charges for the
services of the Trust's officers, employees, investment adviser, administrator,
distributor, principal underwriter, auditor, counsel, depository, custodian,
transfer agent, dividend disbursing agent, accounting agent, Shareholder
servicing agent, and such other agents, consultants, and independent contractors
and such other expenses and charges as the Trustees may deem necessary or proper
to incur. Without limiting the generality of any other provision hereof, the
Trustees shall be entitled to reasonable compensation from the Trust for their
services as Trustees and may fix the amount of such compensation.
Section 3.5 Ownership of Assets of the Trust. Title to all of the assets
of the Trust shall at all times be considered as vested in the Trustees.
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ARTICLE IV
SHARES
Section 4.1 Description of Shares. The beneficial interest in the Trust
shall be divided into such transferable Shares of beneficial interest, of such
classes or series, and of such designations and par values (if any), and with
such rights, preferences, privileges and restrictions as the Trustees may,
without shareholder approval, from time to time create and establish, subject to
the provisions of the 1940 Act. The number of Shares is unlimited and each Share
shall fully paid and nonassessable. There shall be no cumulative voting. The
Shares shall initially be divided into two classes, a class of an unlimited
number of common Shares $.0l par value (the "Common Shares"), and a class of an
unlimited number of preferred Shares, $.0l par value (the "Preferred Shares"),
each having the powers, preferences, rights, qualifications, limitations and
restrictions described below.
Any Trustee, officer or other agent of the Trust, and any organization in
which any such person is interested may acquire, own, hold and dispose of Shares
of the Trust to the same extent as if such person were not a Trustee, officer or
other agent of the Trust; and the Trust may issue and sell or cause to be issued
and sold and may purchase Shares from any such person or any such organization
subject only to the general limitations, restrictions or other provisions
applicable to the sale or purchase of Shares generally.
(a) Preferred Shares. Subject to any limitations prescribed by law, the
Board of Trustees of the Trust is expressly authorized to provide for the
issuance of the Preferred Shares in one or more series, to establish or change
from time to time the number of shares to be included in each such series, and
to fix the designation, powers, preferences and rights of the shares of each
such series and any qualifications, limitations and restrictions thereof. Any
action by the Board of Trustees under this Section 4.1 shall require the
affirmative vote of a majority of the Trustees then in office.
The Board of Trustees shall have the right to determine or fix one or more
of the following with respect to each series of preferred stock:
(i) The distinctive serial designation and the number of shares
constituting such class or series;
(ii) The dividend rates or the amount of dividends to be paid on the
shares of such series, whether dividends shall be cumulative and, if so,
from which date or dates, the payment date or dates for dividends, and the
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participating and other rights, if any, with respect to dividends;
(iii) The voting powers, full or limited, if any, of the shares of
such series;
(iv) Whether the shares of such series shall be redeemable and, if
so, the price or prices at which, and the terms and conditions on which,
such shares may be redeemed;
(v) The amount or amounts payable upon the shares of such series and
any preferences applicable thereto in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Trust;
(vi) The price or other consideration for which the shares of such
series shall be issued;
(vii) Whether the shares of such series which are redeemed or
converted shall have the status of authorized but unissued shares of
preferred stock and whether such shares may be reissued as shares of the
same or any other class or series of stock; and
(viii) such other powers, preferences, rights, qualifications,
limitations and restrictions thereof as the Board of Trustees of the
Trust, or any committee thereof, may deem advisable.
(b) Common Shares. Subject to all of the rights of the Preferred Shares,
and except as provided by law or in this Article IV (or in any certificate of
designation of any series of Preferred Shares) or by the Board of Trustees, or
any committee thereof, pursuant to this Article IV:
(i) dividends may be declared and paid or set apart for payment upon
the Common Shares out of any assets or funds of the Trust legally
available for the payment of dividends, but only when and as declared by
the Board of Trustees; and
(ii) upon the voluntary or involuntary liquidation, dissolution or
winding up of the Trust, the net assets of the Trust shall be distributed
pro rata to the holders of the Common Shares in accordance with their
respective rights and interests.
(c) Transfer of Shares. Shares shall be transferable on the records of the
Trust only by the record holder thereof or by his agent thereunto duly
authorized in writing, upon delivery to the Trustees or the Transfer Agency of a
duly executed instrument of transfer, together with any certificate
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of certificates (if issued) for such Shares and 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 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 hereunder and neither
the Trustees nor any Transfer Agent or register 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 register of Shares as the holder of such Shares
upon production of the proper evidence thereof to the Trustees or the Transfer
Agent; but until such record is made, the Shareholder of record shall be deemed
to be the holder of such Shares for all purposes hereunder 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.
(d) Fractions. Any fractional Share, if any such fractional Share is
outstanding, shall carry proportionately all the rights and obligations of a
whole Share, including rights and obligations with respect to voting, receipt of
dividends and distributions, redemption of Shares, and liquidation of the Trust.
Section 4.2 Ownership of Shares. The ownership of Shares shall be recorded
on the books of the Trust or of a transfer or similar agent for the Trust. No
certificates certifying the ownership of Shares need be issued except as the
Trustees may otherwise determine from time to time. The Trustees may make such
rules as they consider appropriate for the issuance of Share certificates, the
use of facsimile signatures, the transfer of Shares and similar matters. The
record books of the Trust as kept by the Trust or any transfer or similar agent,
as the case may be, shall be conclusive as to who are the Shareholders and as to
the number of Shares held from time to time by each such Shareholder. -
Section 4.3 Investments in the Trust. The Trustees may accept investments
in the Trust thereof from such persons and on such terms and for such
consideration, not inconsistent with the provisions of the 1940 Act, as they
from time to time authorize. The Trustees may authorize any distributor,
principal underwriter, custodian, transfer agent or other person to accept
orders for the purchase of Shares that conform to such authorized terms and to
reject any purchase orders for Shares whether or not conforming to such
authorized terms.
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Section 4.4 No Preemptive Rights. Shareholders shall have no preemptive or
other right to subscribe to any additional Shares or other securities issued by
the Trust.
Section 4.5 Status of Shares and Limitation of Personal Liability. Shares
shall be deemed to be personal property giving only the rights provided in this
instrument. Every Shareholder by virtue of having become a Shareholder shall be
held to have expressly assented and agreed to the terms hereof and to have
become a party hereto. The death of a Shareholder during the continuance of the
Trust shall not operate to terminate the Trust nor entitle the representative of
any deceased Shareholder to an accounting or to take any action in court or
elsewhere against the Trust or the Trustees, but only to the rights of said
decedent under this Trust. Ownership of Shares shall not entitle the Shareholder
to any title in or to the whole or any part of the Trust property or right to
call for a partition or division of the same or for an accounting, nor shall the
ownership of Shares constitute the Shareholders partners. Neither the Trust nor
the Trustees, nor any officer, employee or agent of the Trust shall have any
power to bind personally any Shareholder, nor except as specifically provided
herein to call upon any Shareholder for the payment of any sum of money or
assessment whatsoever other than such as the Shareholder may at any time
personally agree to pay.
Section 4.6 No Appraisal Rights. Shareholders shall have no right to
demand payment for their Shares or to any other rights of dissenting
shareholders in the event the Trust participates in any transaction which would
give rise to appraisal or dissenters' rights by a shareholder of a corporation
organized under Chapter 156B of the General Laws of the Commonwealth of
Massachusetts.
ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 5.1 Voting Powers. Except as otherwise set forth herein or
otherwise provided by law, the Shareholders of the Trust shall take action by
the affirmative vote of the majority of the Common Shares and the Preferred
Shares, voting as a single class. Each Share of the Trust shall be entitled to
one vote. The Shareholders shall have power to vote only (i) for the election or
removal of Trustees as provided in Section 3.1, (ii) with respect to any
contract with a Contracting Party as provided in Section 3.3 as to which
Shareholder approval is required by the 1940 Act, (iii) with respect to any
termination or reorganization of the Trust to the extent and as provided in
Sections 7.1 and 7.2, (iv) with respect to any amendment of this Declaration of
Trust to the extent and as provided in Section 7.3, (v) with respect to the
conversion of the Trust to
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Open-end status to the extent and as provided in Section 7.4, (vi) to the same
extent as the stockholders of a Massachusetts business corporation as to whether
or not a court action, proceeding or claim should or should not be brought or
maintained derivatively or as a class action on behalf of the Trust or the
Shareholders; provided, however, that a Shareholder of a particular class or
series shall not be entitled to bring any derivative or class action on behalf
of any other class or series of the Trust, and (vii) with respect to such
additional matters relating to the Trust as may be required by the 1940 Act,
this Declaration of Trust, the By-Laws, any resolution of the Board of Trustees
which authorizes the issuance of Preferred Shares or any registration of the
Trust with the Commission (or any successor agency) or any state, or as the
Trustees may consider necessary or desirable. There shall be no cumulative
voting in the election of Trustees. Shares may be voted in person or by proxy. A
proxy with respect to Shares held in the name of two or more persons shall be
valid if executed by any one of them unless at or prior to exercise of the proxy
the Trust receives a specific written notice to the contrary from any one of
them. A proxy purporting to be executed by or on behalf of a Shareholder shall
be deemed valid unless challenged at or prior to its exercise and the burden of
proving invalidity shall rest on the challenger. Until Shares are issued, the
Trustees may exercise all rights of Shareholders and may take any action
required by law, this Declaration of Trust or the By-Laws to be taken by
Shareholders.
Section 5.2 Meetings. Annual meetings of Shareholders shall be held to the
extent required under the By-Laws of the Trust. Such annual meetings shall be
held at such place within or without the Commonwealth of Massachusetts on such
day and at such time as the Trustees shall designate. Special meetings of
Shareholders may be called by the Trustees from time to time for the purpose of
taking action upon any matter requiring the vote or authority of the
Shareholders as herein provided or upon any other matter deemed by the Trustees
to be necessary or desirable. Written notice of any meeting of Shareholders
shall be given or caused to be given by the Trustees by mailing or transmitting
such notice at least seven days before such meeting, postage prepaid, stating
the time, place and purpose of the meeting, to each Shareholder at the
Shareholder's address as it appears on the records of the Trust. The Trustees
shall promptly call and give notice of a meeting of Shareholders for the purpose
of voting upon removal of any Trustee of the Trust when requested to do so in
writing by Shareholders holding not less than 10% of the Shares then
outstanding. If the Trustees shall fail to call or give notice of any meeting of
Shareholders for a period of 30 days after written application by Shareholders
holding at least 10% of the Shares then outstanding requesting a meeting be
called for any other purpose requiring action by the Shareholders as provided
15
herein or in the By-Laws, then Shareholders holding at least 10% of the Shares
then outstanding may call and give notice of such meeting, and thereupon the
meeting shall be held in the manner provided for herein in case of call thereof
by the Trustees.
Section 5.3 Record Dates. For the purpose of determining the Shareholders
who are entitled to vote or act at any meeting or any adjournment thereof, or
who are entitled to participate in any dividend or distribution, or for the
purpose of any other action, the Trustees may from time to time close the
transfer books for such period, not exceeding 30 days (except at or in
connection with the termination of the Trust), as the Trustees may determine; or
without closing the transfer books the Trustees may fix a date and time not more
than 60 days prior to the date of any meeting of Shareholders or other action as
the date and time of record for the determination of Shareholders entitled to
vote at such meeting or any adjournment thereof or to be treated as Shareholders
of record for purposes of such other action, and any Shareholder who was a
Shareholder at the date and time so fixed shall be entitled to vote at such
meeting or any adjournment thereof or to be treated as a Shareholder of record
for purposes of such other action, even though he has since that date and time
disposed of his Shares, and no Shareholder becoming such after that date and
time shall be so entitled to vote at such meeting or any adjournment thereof or
to be treated as a Shareholder of record for purposes of such other action.
Section 5.4 Quorum and Required Vote. A majority of the Shares entitled to
vote shall be a quorum for the transaction of business at a Shareholders'
meeting, but any lesser number shall be sufficient for adjournments. Any
adjourned session or sessions may be held, within a reasonable time after the
date set for the original meeting without the necessity of further notice. A
majority of the Shares voted, at a meeting of which a quorum is present shall
decide any questions and a plurality shall elect a Trustee, except when a
different vote is required or permitted by any provision of the 1940 Act or
other applicable law, any resolution of the Board of Trustees which authorizes
the issuance of Preferred Shares or by this Declaration of Trust or the By-Laws.
Notwithstanding the foregoing, when holders of Preferred Shares are entitled to
elect any of the Trustees by class vote of such holders, the holders of 33 1/3%
of such Shares entitled to vote at a meeting shall constitute a quorum for the
purpose of such an election.
Section 5.5 Action by Written Consent. Subject to the provisions of the
1940 Act and other applicable law, any action taken by Shareholders may be taken
without a meeting if a majority of Shareholders entitled to vote on the matter
(or such larger proportion thereof as shall be required by the 1940 Act or by
any express provision of this Declaration of Trust or
16
the By-Laws) consent to the action in writing and such written consents are
filed with the records of the meetings of Shareholders. Such consent shall be
treated for all purposes as a vote taken at a meeting of Shareholders.
Section 5.6 Inspection of Records. The records of the Trust shall be open
to inspection by Shareholders to the same extent as is permitted stockholders of
a Massachusetts business corporation under the Massachusetts Business
Corporation Law.
Section 5.7 Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes and meetings and related matters not
inconsistent with the provisions hereof.
Section 5.8 Shareholder Communications. Whenever ten or more Shareholders
of record who have been such for at least six months preceding the date of
application, and who hold in the aggregate either Shares having a net asset
value of at least $25,000 or at least 1% of the outstanding Shares, whichever is
less, shall apply to the Trustees in writing, stating that they wish to
communicate with other Shareholders with a view to obtaining signatures to a
request for a Shareholder meeting and accompanied by a form of communication and
request which they wish to transmit, the Trustees shall within five business
days after receipt of such application either (1) afford to such applicants
access to a list of the names and addresses of all Shareholders as recorded on
the books of the Trust; or (2) inform such applicants as to the approximate
number of Shareholders of record, and the approximate cost of mailing to them
the proposed communication and form of request.
If the Trustees elect to follow the course specified in clause (2) above,
the Trustees, upon the written request of such applicants, accompanied by a
tender of the material to be mailed and of the reasonable expenses of mailing,
shall, with reasonable promptness, mail such material to all Shareholders of
record at their addresses as recorded on the books, unless within five business
days after such tender the Trustees shall mail to such applicants and file with
the Commission, together with a copy of the material to be mailed, a written
statement signed by at least a majority of the Trustees to the effect that in
their opinion either such material contains untrue statements of fact or omits
to state facts necessary to make the statements contained therein not
misleading, or would be violation of applicable law, and specifying the basis of
such opinion. The Trustees shall thereafter comply with any order entered by the
Commission and the requirements of the 1940 Act and the Securities Exchange Act
of 1934.
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ARTICLE VI
LIMITATION OF LIABILITY; INDEMNIFICATION
Section 6.1 Trustees, Shareholders, etc. Not Personally Liable; Notice.
All persons extending credit to, contracting with or having any claim against
the Trust shall look only to the assets of the Trust for payment under such
credit, contract or claim; and neither the Shareholders of the Trust nor the
Trustees, nor any of the Trust's officers, employees or agents, whether past,
present or future shall be personally liable therefor. Every note, bond,
contract, instrument, certificate or undertaking and every other act or thing
whatsoever executed or done by or on behalf of the Trust or the Trustees or any
of them in connection with the Trust shall be conclusively deemed to have been
executed or done only by or for the Trust or the Trustees and not personally.
Nothing in this Declaration of Trust shall protect any Trustee or officer
against any liability to the Trust or the Shareholders to which such Trustee or
officer would otherwise be subject by reason of wilful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
the office of Trustee or of such officer.
Every note, bond, contract, instrument, certificate or undertaking made or
issued by the Trustees or by any officers or officer shall give notice that this
Declaration of Trust is on file with the Secretary of the Commonwealth of
Massachusetts and shall recite to the effect that the same was executed or made
by or on behalf of the Trust or by them as Trustees or Trustee or as officers or
officer and not individually and that the obligations of such instrument are not
binding upon any of them or the Shareholders individually but are binding only
upon the assets and property of the Trust but the omission thereof shall not
operate to bind any Trustees or Trustee or officers or officer or Shareholders
or Shareholder individually.
Section 6.2 Trustee's Good Faith Action; Expert Advice; No Bond or Surety.
The exercise by the Trustees of their powers and discretions hereunder shall be
binding upon everyone interested. A Trustee shall be liable for his own wilful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee, and for nothing else, and
shall not be liable for errors of judgment or mistakes of fact or law. Subject
to the foregoing, (a) the Trustees shall not be responsible or liable in any
event for any neglect or wrongdoing of any officer, agent, employee, consultant,
adviser, administrator, distributor or principal underwriter, custodian or
transfer, dividend disbursing, Shareholder servicing or accounting agent of the
Trust, nor shall any Trustee be responsible for the act or omission of any other
Trustee; (b) the Trustees may take advice of counsel or other experts with
respect to the meaning and
18
operation of this Declaration of Trust and their duties as Trustees, and shall
be under no liability for any act or omission in accordance with such advice or
for failing to follow such advice; and (c) in discharging their duties, the
Trustees, when acting in good faith, shall be entitled to rely upon the books of
account of the Trust and upon written reports made to the Trustees by any
officer appointed by them, any independent public accountant, and (with respect
to the subject matter of the contract involved) any officer, partner or
responsible employee of a Contracting Party appointed by the Trustees pursuant
to Section 3.3. The Trustees as such shall not be required to give any bond or
surety or any other security for the performance of their duties.
Section 6.3 Indemnification of Shareholders. In case any Shareholder (or
former Shareholder) of the Trust shall be charged or held to be personally
liable for any obligation or liability of the Trust solely by reason of being or
having been a Shareholder and not because of such Shareholder's acts or
omissions or for some other reason, the Trust (upon proper and timely request by
the Shareholder) shall assume the defense against such charge and satisfy any
judgment thereon, and the Shareholder or former Shareholder (or his heirs,
executors, administrators or other legal representatives or in the case of a
corporation or other entity, its corporate or other general successor) shall be
entitled out of the assets of said Trust estate to be held harmless from and
indemnified against all loss and expense arising from such liability.
Section 6.4 Indemnification of Trustees, Officers, etc. The Trust shall
indemnify each of its Trustees and officers (including persons who serve at the
Trust's request as directors, officers or trustees of another organization in
which the Trust has any interest as a shareholder, creditor or otherwise
[hereinafter referred to as a "Covered Person"]) against all liabilities,
including but not limited to amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, and expenses, including reasonable
accountants' and counsel fees, incurred by any Covered Person in connection with
the defense or disposition of any action, suit or other proceeding, whether
civil or criminal, before any court or administrative or legislative body, in
which such Covered Person may be or may have been involved as a party or
otherwise or with which such person may be or may have been threatened, while in
office or thereafter, by reason of being or having been such a Trustee or
officer, director or trustee, except with respect to any matter as to which it
has been determined that such Covered Person had acted with wilful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of such Covered Person's office (such conduct referred to hereafter as
"Disabling Conduct"). A determination that the Covered Person is entitled to
indemnification may be made by (i) a final decision on the
19
merits by a court or other body before whom the proceeding was brought that the
person to be indemnified was not liable by reason of Disabling Conduct, (ii)
dismissal of a court action or an administrative proceeding against a Covered
Person for insufficiency of evidence of Disabling Conduct, or (iii) a reasonable
determination, based upon a review of the facts, that the Covered Person was not
liable by reason of Disabling Conduct by (a) a vote of a majority of a quorum of
Trustees who are neither "interested persons" of the Trust as defined in section
2(a)(19) of the 1940 Act nor parties to the proceeding, or (b) an independent
legal counsel in a written opinion. Expenses, including accountants' and counsel
fees so incurred by any such Covered Person (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines or penalties), may be paid
from time to time by the Trust in advance of the final disposition of any such
action, suit or proceeding, provided that the Covered Person shall have
undertaken to repay the amounts so paid to the Trust if it is ultimately
determined that indemnification of such expenses is not authorized under this
Article VI and (i) the Covered Person shall have provided security for such
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
Trustees who are not a party to the proceeding, or an independent legal counsel
in a written opinion, shall have determined, based on a review of readily
available facts (as opposed to a full trial-type inquiry), that there is reason
to believe that the Covered Person ultimately will be found entitled to
indemnification.
Section 6.5 Compromise Payment. As to any matter disposed of by a
compromise payment by any such Covered Person referred to in Section 6.4,
pursuant to a consent decree or otherwise, no such indemnification either for
said payment or for any other expenses shall be provided unless such
indemnification shall be approved (a) by a majority of the disinterested
Trustees who are not a party to the proceeding or (b) by an independent legal
counsel in a written opinion. Approval by the Trustees pursuant to clause (a) or
by independent legal counsel pursuant to clause (b) shall not prevent the
recovery from any Covered Person of any amount paid to such Covered Person in
accordance with any of such clauses as indemnification if such Covered Person is
subsequently adjudicated by a court of competent jurisdiction not to have acted
in good faith in the reasonable belief that such Covered Person's action was in
or not opposed to the best interests of the Trust or to have been liable to the
Trust or its Shareholders by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of such
Covered Person's office.
Section 6.6 Indemnification Not Exclusive, etc. The right of
indemnification provided by this Article VI shall not be
20
exclusive of or affect any other rights to which any such Covered Person may be
entitled. As used in this Article VI, "Covered Person" shall include such
person's heirs, executors and administrators, an "interested Covered Person" is
one against whom the action, suit or other proceeding in question or another
action, suit or other proceeding on the same or similar grounds is then or has
been pending or threatened, and a "disinterested" person is a person against
whom none of such actions, suits or other proceedings or another action, suit or
other proceeding on the same or similar grounds is then or has been pending or
threatened. Nothing contained in this article shall affect any rights to
indemnification to which personnel of the Trust, other than Trustees and
officers, and other persons may be entitled by contract or otherwise under law,
nor the power of the Trust to purchase and maintain liability insurance on
behalf of any such person.
Section 6.7 Liability of Third Persons Dealing with Trustees. No person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Duration and Termination of Trust. Unless terminated as
provided herein, the Trust shall continue without limitation of time. The Trust
may be terminated (i) by the affirmative vote of the holders of not less than
two-thirds (66 2/3%) of the Common Shares and Preferred Shares outstanding and
entitled to vote at any meeting of Shareholders, voting as a single class, or
(ii) by an instrument in writing signed by a majority of the Trustees and
consented to by the holders of not less than a majority of such Common Shares
and Preferred Shares.
Upon termination, after paying or otherwise providing for all charges,
taxes, expenses and liabilities, whether due or accrued or anticipated as may
be- determined by the Trustees, the Trust shall in accordance with such
procedures as the Trustees consider appropriate reduce the remaining assets to
distributable form in cash, securities or other property, or any combination
thereof, and distribute the proceeds to the Shareholders, in conformity with the
provisions of Section 4.1.
Section 7.2 Reorganization. The Trustees may sell, convey, merge and
transfer the assets of the Trust to another trust, partnership, association or
corporation organized under the laws of any state of the United States with such
transfer either (1) being made subject to, or with the assumption by the
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transferee of, the liabilities belonging to the Trust, or (2) not being made
subject to, or not with the assumption of, such liabilities; provided, however,
that no assets belonging to the Trust shall be so transferred unless the terms
of such transfer shall have first been approved at a meeting called for the
purpose by the affirmative vote of the holders of two-thirds (66 2/3%) of the
outstanding voting Common Shares and Preferred Shares, as defined in the 1940
Act, of the Trust, voting as a single class or (ii) by an instrument in writing
signed by a majority of the Trustees and consented to by the holders of not less
than a majority of such Common Shares and Preferred Shares.. Following such
transfer, the Trustees shall distribute such cash, shares or other securities
among the Shareholders of the Trust; and if all of the assets of the Trust have
been so transferred, the Trust shall be terminated.
The Trust may, either as the successor, survivor, or nonsurvivor, (1)
consolidate with one or more other trusts, partnerships, associations or
corporations organized under the laws of the Commonwealth of Massachusetts or
any other state of the United States, to form a new consolidated trust,
partnership, association or corporation under the laws of which any one of the
constituent entities is organized, or (2) merge into one or more other trusts,
partnerships, associations or corporations organized under the laws of the
Commonwealth of Massachusetts or any other state of the United States, or have
one or more such trusts, partnerships, associations or corporations merged into
it, any such consolidation or merger to be upon such terms and conditions as are
specified in an agreement and plan of reorganization entered into by the Trust
in connection therewith. The terms "merge" or "merger" as used herein shall also
include the purchase or acquisition of any assets of any other trust,
partnership, association or corporation which is an investment company organized
under the laws of the Commonwealth of Massachusetts or any other state of the
United States. Any such consolidation or merger shall require the affirmative
vote of (i) the holders of not less than two-thirds (66 2/3%) of the Common
Shares and Preferred Shares outstanding and entitled to vote at any meeting of
Shareholders, voting as a single class, or (ii) an instrument in writing signed
by a majority of the Trustees and consented to by the holders of not less than a
majority of such Common Shares and Preferred Shares.
Section 7.3 Amendments. All rights granted to the Shareholders under this
Declaration of Trust are granted subject to the reservation of the right to
amend this Declaration of Trust as herein provided, except that no amendment
shall repeal the limitations on personal liability of any Shareholder or Trustee
or repeal the prohibition of assessment upon the Shareholders without the
express consent of each Shareholder or Trustee involved. Subject to the
foregoing, the provisions of this Declaration of Trust (whether
22
or not related to the rights of Shareholders) may be amended at any time, so
long as such amendment does not adversely affect the rights of any Shareholder
with respect to which such amendment is or purports to be applicable and so long
as such amendment is not in contravention of applicable law, including the 1940
Act, by an instrument in writing signed by a majority of the then Trustees (or
by an officer of the Trust pursuant to the vote of a majority of such Trustees).
Any amendment to this Declaration of Trust that adversely affects the rights of
Shareholders may be adopted at any time by an instrument in writing signed by a
majority of the then Trustees (or by an officer of the Trust pursuant to a vote
of a majority of such Trustees) when authorized to do so by the vote of
Shareholders holding a majority of the Shares entitled to vote; provided,
however, that (i) any amendment to Sections 7.1, 7.2, or 7.4 shall require the
authorization of Shareholders holding the number of Shares required to approve
the actions contemplated thereunder immediately prior to such amendment, (ii)
any amendment to Sections 3.1(f) or 4.1 that adversely effects the rights of the
holders of the Preferred Shares shall require the affirmative vote of the
holders of two-thirds (66 2/3%) of the Preferred Shares voting as a separate
class and (iii) any amendment to this Section 7.3 shall require the affirmative
vote of the holders of two-thirds (66 2/3%) of the Common Shares and two-thirds
(66 2/3%) of the Preferred Shares, voting as separate classes. Subject to the
foregoing, any such amendment shall be effective as provided in the instrument
containing the terms of such amendment or, if there is no provision therein with
respect to effectiveness, upon the execution of such instrument and of a
certificate (which may be a part of such instrument) executed by a Trustee or
officer of the Trust to the effect that such amendment has been duly adopted.
Holders of Preferred Shares shall have class voting rights as determined by the
Board of Trustees at the time such Preferred Shares are authorized.
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 securities 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.
Section 7.4 Conversion. Notwithstanding any other provision of this
Declaration of Trust, the conversion of the Trust from a "closed-end company" to
an "open-end company," as those terms are defined in Sections 5(a)(2) and
5(a)(l), respectively, of the 1940 Act as in effect on August 31, 1987, shall
require the affirmative vote of (i) the holders of not less than two-thirds
(66-2/3%) of the Common Shares and Preferred Shares outstanding and entitled to
vote at any meeting of Shareholders, voting as a single class, or (ii) an
23
instrument in writing signed by a majority of the Trustees and consented to by
the holders of not less than a majority of such Common Shares and Preferred
Shares. Such affirmative vote or consent shall be in addition to the vote or
consent of the holders of the Shares otherwise required by law or by the terms
of any class or series of preferred stock, whether now or hereafter authorized,
or any agreement between the Trust and any national securities exchange.
Section 7.5 Filing of Copies; References; Headings. The original or a copy
of this instrument and of each amendment hereto shall be kept at the office of
the Trust where it may be inspected by any Shareholder. A copy of this
instrument and of each amendment hereto shall be filed by the Trust with the
Secretary of the Commonwealth of Massachusetts and with the Boston City Clerk,
as well as any other governmental office where such filing may from time to time
be required, but the failure to make any such filing shall not impair the
effectiveness of this instrument or any such amendment. Anyone dealing with the
Trust may rely on a certificate by an officer of the Trust as to whether or not
any such amendments have been made, as to the identities of the Trustees and
officers, and as to any matters in connection with the Trust hereunder; and,
with the same effect as if it were the original, may rely on a copy certified by
an officer of the Trust to be a copy of this instrument or of any such
amendments. In this instrument and in any such amendment, references to this
instrument, and all expressions like "herein", "hereof" and "hereunder" shall be
deemed to refer to this instrument as a whole as the same may be amended or
affected by any such amendments. The masculine gender shall include the feminine
and neuter genders. Headings are placed herein for convenience of reference only
and shall not be taken as a part hereof or control or affect the meaning,
construction or effect of this instrument. This instrument may be executed in
any number of counterparts each of which shall be deemed an original.
Section 7.6 Applicable Law. This Declaration of Trust is made in the
Commonwealth of Massachusetts, and it is created under and is to be governed by
and construed and administered according to the laws of said Commonwealth. The
Trust shall be of the type referred to in Section 1 of Chapter 182 of the
Massachusetts General Laws and of the type commonly called a Massachusetts
business trust, and without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a trust.
24
IN WITNESS WHEREOF, the undersigned hereunto set their hands and seals in
the City of Boston, Massachusetts for himself and his assigns, as of the day and
year first above written.
/s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss.
Then personally appeared the above-named ▇▇▇▇▇ ▇▇▇▇▇ who acknowledged the
foregoing instrument to be his free act and deed, before me, this 20 day of
April, 1993.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Notary Public
My commission expires MAY 17, 1996
[SEAL]
▇▇▇▇▇ ▇▇▇▇▇ Address of Trust:
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇