BLACKROCK STRATEGIC INCOME OPPORTUNITIES TRUST
Ex.
99.(a)
AMENDED
AND RESTATED AGREEMENT AND DECLARATION OF TRUST
Dated
as of September 21, 2007
TABLE
OF CONTENTS
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Page
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ARTICLE
I
The
Trust
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1.1
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Name
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1
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1.2
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Definitions
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1
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ARTICLE
II
Trustees
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2.1
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Number
and Qualification
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2
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2.2
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Term
and Election
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2
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2.3
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Resignation
and Removal
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3
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2.4
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Vacancies
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3
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2.5
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Meetings
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3
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2.6
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Trustee
Action by Written Consent
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4
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2.7
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Officers
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4
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ARTICLE
III
Powers
and Duties of Trustees
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3.1
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General
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4
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3.2
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Investments
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4
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3.3
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Legal
Title
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4
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3.4
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Issuance
and Repurchase of Shares
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5
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3.5
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Borrow
Money or Utilize Leverage
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5
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3.6
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Delegation;
Committees
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5
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3.7
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Collection
and Payment
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5
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3.8
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Expenses
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5
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3.9
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By-Laws
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6
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3.10
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Miscellaneous
Powers
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6
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3.11
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Further
Powers
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6
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ARTICLE
IV
Advisory,
Management and Distribution Arrangements
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4.1
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Advisory
and Management Arrangements
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6
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4.2
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Distribution
Arrangements
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7
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4.3
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Parties
to Contract
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7
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ARTICLE
V
Limitations
of Liability and Indemnification
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5.1
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No
Personal Liability of Shareholders, Trustees, etc.
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7
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5.2
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Mandatory
Indemnification
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7
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5.3
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No
Bond Required of Trustees
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9
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5.4
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No
Duty of Investigation; Notice in Trust Instruments, etc.
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9
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5.5
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Reliance
on Experts, etc.
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9
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ARTICLE
VI
Shares
of Beneficial Interest
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6.1
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Beneficial
Interest
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9
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6.2
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Other
Securities
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9
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6.3
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Rights
of Shareholders
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9
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6.4
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Trust
Only
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10
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6.5
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Issuance
of Shares
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10
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6.6
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Register
of Shares
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10
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6.7
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Transfer
Agent and ▇▇▇▇▇▇▇▇▇
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▇▇
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i
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6.8
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Transfer
of Shares
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10
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6.9
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Notices
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11
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ARTICLE
VII
Custodians
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7.1
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Appointment
and Duties
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11
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7.2
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Central
Certificate System
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11
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ARTICLE
VIII
Redemption
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8.1
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Redemptions
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11
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8.2
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Disclosure
of Holding
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11
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ARTICLE
IX
Determination
of Net Asset Value, Net Income and Distributions
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9.1
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Net
Asset Value
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12
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9.2
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Distributions
to Shareholders
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12
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9.3
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Power
to Modify Foregoing Procedures
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12
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ARTICLE
X
Shareholders
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10.1
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Meetings
of Shareholders
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12
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10.2
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Voting
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13
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10.3
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Notice
of Meeting and Record Date
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13
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10.4
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Quorum
and Required Vote
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13
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10.5
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Proxies,
etc.
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13
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10.6
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Reports
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14
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10.7
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Inspection
of Records
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14
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10.8
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Shareholder
Action by Written Consent
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14
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ARTICLE
XI
Duration;
Termination of Trust; Amendment; Mergers, Etc.
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11.1
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Duration
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14
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11.2
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Termination
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14
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11.3
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Amendment
Procedure
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15
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11.4
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Merger,
Consolidation and Sale of Assets
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15
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11.5
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Subsidiaries
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16
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11.6
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Conversion
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16
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11.7
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Certain
Transactions
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16
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ARTICLE
XII
Miscellaneous
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12.1
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Filing
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17
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12.2
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Resident
Agent
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17
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12.3
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Governing
Law
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17
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12.4
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Counterparts
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18
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12.5
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Reliance
by Third Parties
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18
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12.6
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Provisions
in Conflict with Law or Regulation
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18
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ii
AMENDED
AND RESTATED AGREEMENT AND DECLARATION OF TRUST
AMENDED
AND RESTATED AGREEMENT AND DECLARATION OF TRUST made as of the 21st day of
September, 2007, 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 filed
with
the Secretary of State of the State of Delaware on September 21st, 2007 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 Strategic Income Opportunities 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. 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. 100, et. seq., as amended from time to
time.
"Fundamental
Policies" shall mean the investment policies and restrictions as set forth
from time to time in any Registration Statement of the Trust filed with the
Commission and designated as fundamental policies therein, as they may be
amended from time to time in accordance with the requirements of the 1940
Act.
1
"Majority
Shareholder Vote" shall mean a vote of "a majority of the outstanding voting
securities" (as such term is defined in the ▇▇▇▇ ▇▇▇) 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 of the Trust, if any, as in effect from time to time
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 signatories to this Declaration, so long as 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. Prior to a public offering of Shares there may
be a sole Trustee. Thereafter, the number of Trustees shall be determined by
a
written instrument signed by a majority of the Trustees then in office, provided
that the number of Trustees shall be no less than two or more than fifteen.
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. Within the limits above specified,
the number of the Trustees in each class shall be determined by resolution
of
the Board of Trustees. The term of office of the 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 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
the initial Registration Statement relating to the Shares under the Securities
Act of 1933, as amended. 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 the initial Registration Statement
relating to the Shares under the Securities Act of 1933, as amended. Upon
expiration of the term of office of each class as set forth above, the number
of
Trustees in such
2
class,
as determined by the Board of Trustees, shall be elected for a term expiring
on
the date of the third annual meeting of Shareholders or special meeting in
lieu
thereof following such expiration to succeed the Trustees whose terms of office
expire. The Trustees shall be elected at an annual meeting of the Shareholders
or special meeting in lieu thereof called for that purpose, 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, or removal, of a
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 (provided the aggregate number of Trustees after
such removal shall not be less than the minimum number required by Section
2.1
hereof) for cause only, and not without cause, and only by action taken by
a
majority of the remaining Trustees followed by the holders of at least
seventy-five percent (75%) of the Shares then entitled to vote in an election
of
such Trustee. 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 incapacity or death of any Trustee, 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 by a written instrument signed by a majority of the Trustees then
in office or may leave such vacancy unfilled or may reduce the number of
Trustees; provided the aggregate number of Trustees after such reduction shall
not be less than the minimum number required by Section 2.1 hereof; provided,
further, 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
of
an individual having the qualifications described in this Article made by a
written instrument signed by a majority of the Trustees then in office. 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. Any time there is more than one Trustee, a quorum for all
meetings of the Trustees shall be one-third, but not less than two, of the
Trustees. 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) or without a
meeting by written consent of a majority of the Trustees.
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, 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) or without a meeting by written consent of all of the
members.
3
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, required for approval of such
action at a meeting of the Trustees or of such committee 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.
2.7 Officers. The
Trustees shall elect a President, a Secretary and a Treasurer and may elect
a
Chairman 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. A Chairman shall, and
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, hold, pledge, sell,
assign, transfer, exchange, 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,
provided that the interest of the Trust therein is appropriately
protected.
4
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, including the lending of portfolio securities,
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, including
any matters set forth in this Declaration, 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. 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 ▇▇▇▇ ▇▇▇.
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.
5
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 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 exercise
any of the powers of the Trustees, including to effect investment transactions
with respect to the assets on behalf of the Trust 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). Any such investment transaction shall be deemed to have been
authorized by all of the Trustees.
4.2 Distribution
Arrangements. Subject to compliance with the 1940 Act, the
Trustees may retain underwriters and/or placement agents to sell Shares and
other securities of the Trust. The Trustees may in their discretion from time
to
time enter into one or more contracts, providing for the sale of securities
of
the Trust,
6
whereby
the Trust may either agree to sell such securities to the other party to the
contract or appoint such other party its sales agent for such securities. 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 securities 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 securities 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
7
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 (as defined in Section 2(a)(19) of the ▇▇▇▇ ▇▇▇) 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 ''disinterested persons'' (as defined in
Section 2(a)(19) of the ▇▇▇▇ ▇▇▇) 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; No Notice in Trust Instruments, 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
8
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,
the 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. 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, except as
provided in the last sentence of Section 3.8, nonassessable when the
consideration determined by the Trustees (if any) therefor shall have been
received by the Trust.
6.2 Other
Securities. The Trustees may, subject to the Fundamental Policies
and the requirements of the 1940 Act, authorize and issue such other 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
9
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 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
(including compliance with any securities laws and contractual restrictions)
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.
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 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, including without
limitation authority:
(1) to
hold the securities owned by the Trust and deliver the same upon written
order;
10
(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.
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 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
11
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 fifty-one percent (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. This Declaration expressly provides that no matter for which
voting is required by the Statutory Trust Act in the absence of the contrary
provision in the Declaration shall require any vote. 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
12
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 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 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.
10.5 Proxies,
etc. At any meeting of Shareholders, any holder of Shares
entitled to vote thereat may vote by properly executed 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. 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.
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. 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 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. 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 required by law, regulation or any exchange on which
Trust Shares are listed a report of operations containing a balance sheet and
statement of income and undistributed income of the Trust prepared in conformity
with generally accepted accounting principles and an opinion of an independent
public accountant on such financial statements. Copies of such reports shall
be
mailed to all Shareholders of record within the time required by the 1940 Act,
and in any event within a reasonable period preceding the meeting of
Shareholders. The Trustees shall, in addition, furnish to the Shareholders
at
least semi-annually to the extent required by law, interim reports containing
an
unaudited balance sheet of the Trust as of the end of such period and an
unaudited statement of income and surplus for the period from the beginning
of
the current fiscal year to the end of such period.
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 the holders entitled
to
vote thereon of the proportion of Shares required for
13
approval
of such action at a meeting of Shareholders pursuant to Section 10.4 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, only upon approval of not less than eighty percent
(80%)
of the Trustees. 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 subsection (b) of
this Section 11.3, this Declaration may be amended, after a majority of the
Trustees have approved a resolution therefor, by the affirmative vote required
by Section 10.4 of this Declaration. The Trustees also may amend this
Declaration without any vote of Shareholders of any class or 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 rights, powers,
preferences, limitations and restrictions 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, 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
14
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, other 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, unless such amendment has been approved by eighty percent
(80%) of the Trustees, in which case approval by a Majority Shareholder Vote
shall be required. 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 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 two-thirds of the Trustees and approved 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 all 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 the Shares a ''redeemable security'' as that term is
defined in the 1940 Act, unless such amendment has been approved by eighty
percent (80%) of the Trustees, in which case approval by a Majority Shareholder
Vote shall be required. Upon the adoption of a proposal to convert the Trust
from a ''closed-end company'' to an ''open-end company'' as those terms are
defined by the 1940 Act and the necessary amendments to this Declaration to
permit such a conversion of the Trust's outstanding Shares entitled to vote,
the
Trust shall, upon complying with any requirements of the 1940 Act and state
law,
become an ''open-end'' investment company. Such affirmative vote or consent
shall be in addition to the vote or consent of the holders of the Shares
otherwise required by law, or any agreement between the Trust and any national
securities exchange.
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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 all outstanding classes or series
and
shall include any affiliate or associate, as such terms are defined in clause
(ii) below, of a 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 its ''affiliate'' or ''associate'' (as defined below) has
any
agreement, arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of Shares, or which is its ''affiliate'' or ''associate''
as
those terms are defined in Rule 12b-2 of the General Rules and Regulations
under
the Securities Exchange Act of 1934, 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).
(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 two percent (2%) 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 two percent (2%)
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 eighty percent (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
16
entity
is an ''affiliate'' or ''associate'' (as defined above) of another, (iii) the
assets being acquired or leased to or by the Trust or any subsidiary thereof
constitute a substantial part of the assets of the Trust and have an aggregate
fair market value of less than two percent (2%) of the total assets of the
Trust, 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 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 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, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. 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.
17
(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.
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IN
WITNESS WHEREOF, the undersigned has caused these presents to be executed as
of
the day and year first above written.
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Sole
Trustee
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