WS5942
BBH COMMON SETTLEMENT FUND, INC.
ARTICLES OF INCORPORATION
Dated July 28, 2000
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BBH COMMON SETTLEMENT FUND, INC.
ARTICLES OF INCORPORATION
FIRST: I, THE UNDERSIGNED, Molly S. Mugler, whose post office address
is 21 Milk Street, 5th Floor, Boston, Massachusetts 02109, being at least
eighteen years of age, do under and by virtue of the General Laws of the State
of Maryland authorizing the formation of corporations, associate myself as
incorporator with the intention of forming a corporation (hereinafter called the
"Corporation").
SECOND: The name of the Corporation is BBH Common Settlement
Fund, Inc.
THIRD: The purpose for which the Corporation is formed is to
act as an open-end management investment company under the Investment
Company Act of 1940 as may be amended from time to time and the Rules
and Regulations from time to time promulgated and effective thereunder
(referred to herein collectively as the "Investment Company Act of
1940") and to exercise and enjoy all of the powers, rights and
privileges granted to, or conferred upon, corporations by the General
Laws of the State of Maryland now or hereafter in force.
FOURTH: The post office address of the principal office of the
Corporation in the State of Maryland is c/o The Corporation Trust
Incorporated, 300 East Lombard Street, Baltimore, Maryland 21202. The
name of the resident agent of the Corporation in the State of Maryland
is The Corporation Trust Incorporated, a corporation of this State, and
the post office address of the resident agent is 300 East Lombard
Street, Baltimore, Maryland 21202.
FIFTH: 1. The total number of shares of stock which the
Corporation initially shall have authority to issue is 2,500,000,000
shares of stock, with a par value of one-tenth of one cent ($.001) per
share to be known and designated as Common Stock, such shares of Common
Stock having an aggregate par value of two million five hundred
thousand dollars ($2,500,000). The Board of Directors shall have power
and authority to increase or decrease, from time to time, the aggregate
number of shares of stock, or of any class of stock, which the
Corporation shall have the authority to issue.
2. Subject to the provisions of these Articles of Incorporation, the
Board of Directors shall have the power to issue shares of Common Stock
of the Corporation from time to time, at prices not less than the net
asset value or par value thereof, whichever is greater, for such
consideration as may be fixed from time to time pursuant to the
direction of the Board of Directors. All stock shall be issued on a
nonassessable basis.
3. Pursuant to Section 2-105 of the Maryland General
Corporation Law, the Board of Directors of the Corporation shall have
the power to designate one or more classes of shares of Common Stock,
to fix the number of shares in any such class and to classify or
reclassify any unissued shares with respect to such class. Any such
class shall be known as a "series" and (subject to any applicable rule,
regulation or order of the Securities and Exchange Commission or other
applicable law or regulation) shall have such preferences, conversion
or other rights, voting powers, restrictions, limitations as to
dividends, qualifications, terms and conditions of redemption and other
characteristics as the Board may determine in the absence of contrary
determination set forth herein. The aforesaid power shall include the
power to create, by classifying or reclassifying unissued shares in the
aforesaid manner, one or more series.
4. Each share of a series shall have equal rights with each
other share of that series with respect to the assets of the
Corporation pertaining to that series. The dividends payable to the
holders of any series (subject to any applicable rule, regulation or
order of the Securities and Exchange Commission or any other applicable
law or regulation) shall be determined by the Board and need not be
individually declared, but may be declared and paid in accordance with
a formula adopted by the Board (whether or not the amount of dividend
or distribution so declared can be calculated at the time of such
declaration).
5. The holder of each share of stock of the Corporation shall
be entitled to one vote for each full share, and a fractional vote for
each fractional share of stock, irrespective of the series, then
standing in his or her name in the books of the Corporation. On any
matter submitted to a vote of stockholders, all shares of the
Corporation then issued and outstanding and entitled to vote,
irrespective of the series, shall be voted in the aggregate and not by
series except (1) when otherwise expressly provided by the Maryland
General Corporation Law, or (2) when required by the Investment Company
Act of 1940, shares shall be voted by individual series, or (3) when
the matter does not affect any interest of a particular series, then
only stockholders of such other series whose interests may be affected
shall be entitled to vote thereon. Holders of shares of stock of the
Corporation shall not be entitled to cumulative voting in the election
of Directors or on any other matter.
6. All consideration received by the Corporation for the issue
or sale of stock of each series, together with all income, earnings,
profits and proceeds thereof, including any proceeds derived from the
sales, exchange or liquidation thereof, and any funds or payments
derived from any reinvestment of such proceeds in whatever form the
same may be, shall belong to the series of shares of stock with respect
to which such assets, payments or funds were received by the
Corporation for all purposes, subject only to the rights of creditors,
and shall be so handled upon the books of account of the Corporation.
Such assets, income, earnings, profits and proceeds thereof, including
any proceeds derived from the sale, exchange or liquidation thereof and
any assets derived from any reinvestment of such proceeds, in whatever
form the same may be, are herein referred to as "assets belonging to"
such series.
7. The Board of Directors may from time to time declare and
pay dividends or distributions, in stock, property or in cash, on any
or all series of stock and to the stockholders of record as of such
date as the Board of Directors may determine; provided, such dividends
or distributions on shares of any series of stock shall be paid only
out of earnings, surplus or other lawfully available assets belonging
to such series. Subject to the foregoing proviso, the amount of any
dividends or distributions and the payment thereof shall be wholly in
the discretion of the Board of Directors.
8. In the event of the liquidation or dissolution of the
Corporation, stockholders of each series shall be entitled to receive,
as a series, out of the assets of the Corporation available for
distribution to stockholders, but other than general assets, the assets
belonging to such series, and the assets so distributable to the
stockholders of any series shall be distributed among such stockholders
in proportion to the number of shares of such series held by them and
recorded on the books of the Corporation. In the event that there are
any general assets not belonging to any particular series of stock and
available for distribution, such distribution shall be made to the
holders of stock of all series in proportion to the net asset value of
the respective series determined as hereinafter provided.
9. The assets belonging to any series of stock shall be
charged with the liabilities in respect to such series, and shall also
be charged with its share of the general liabilities of the
Corporation, in proportion to the net asset value of the respective
series determined as hereinafter provided. The determination of the
Board of Directors shall be conclusive as to the amount of liabilities,
including accrued expenses and reserves, as to the allocation of the
same as to a given series, and as to whether the same or general assets
of the Corporation are allocable to one or more series.
10. The Board of Directors may provide for a holder of any
series of stock of the Corporation to convert the shares in question,
on such basis as the Board may provide, into shares of stock of any
other series of the Corporation.
11. Subject to subsection 12 below, the net asset value per
share of the Corporation's Common Stock shall be determined by adding
the value of all securities, cash and other assets of the Corporation
pertaining to that series, subtracting the liabilities applicable to
that series, allocating any general assets and general liabilities to
that series, and dividing the net result by the number of shares of
that series outstanding. Subject to subsection 12 below, the value of
the securities, cash and other assets, and the amount and nature of
liabilities, and the allocation thereof to any particular series, shall
be determined pursuant to the direction of, or determined pursuant to
procedures or methods prescribed by or approved by the Board of
Directors in its sole discretion and shall be so determined at the time
or times prescribed or approved by the Board of Directors in its sole
discretion.
12. The net asset value per share of a series of the
Corporation's Common Stock for the purpose of issue, redemption or
repurchase of a share shall be determined in accordance with the
Investment Company Act of 1940 and any other applicable federal
securities law or rule or regulation.
13. All shares now or hereafter authorized shall be subject to
redemption and redeemable at the option of the stockholder, in the
sense used in the General Corporation Law of the State of Maryland.
Each holder of a share, upon request to the Corporation accompanied by
such evidence of ownership as may be specified by the Board of
Directors, shall be entitled to require the Corporation to redeem all
or any part of the shares standing in the name of such holder on the
books of the Corporation at a redemption price per share equal to the
net asset value per share determined in accordance with this Article.
14. Notwithstanding subsection 13 above (or any other
provision of these Articles of Incorporation), the Board of Directors
of the Corporation may suspend the right of the holders of shares to
require the Corporation to redeem such shares (or may suspend any
voluntary purchase of such shares pursuant to the provisions of these
Articles of Incorporation) for up to seven days and for such other
periods as the Investment Company Act of 1940 may permit.
15. The Board of Directors may by resolution from time to time
authorize the repurchase by the Corporation, either directly or through
an agent, of shares upon such terms and conditions and for such
consideration as the Board of Directors shall deem advisable, out of
funds legally available therefor, at prices per share not in excess of
the net asset value per share determined in accordance with this
Article and to take all other steps deemed necessary or advisable in
connection therewith.
16. Except as otherwise permitted by the Investment Company
Act of 1940, payment of the redemption or repurchase price of shares
surrendered to the Corporation for redemption pursuant to the
provisions of subsection 13 or 18 of this Article or for repurchase by
the Corporation pursuant to the provisions of subsection 15 of this
Article shall be made by the Corporation within seven days after
surrender of such shares to the Corporation for such purpose. Any such
payment may be made in whole or in part in portfolio securities or in
cash, as the Board of Directors shall deem advisable, and no
stockholder shall have the right, other than as determined by the Board
of Directors, to have his shares redeemed or repurchased in portfolio
securities.
17. In the absence of any specifications as to the purposes
for which shares are redeemed or repurchased by the Corporation, all
shares so redeemed or repurchased shall be deemed to be acquired for
retirement in the sense contemplated by the General Corporation Law of
the State of Maryland. Shares retired by redemption or repurchase shall
thereafter have the status of authorized but unissued shares.
18. All shares now or hereafter authorized shall be subject to
redemption and redeemable at the option of the Corporation. The Board
of Directors may by resolution from time to time authorize the
Corporation to require the redemption of all or any part of any
outstanding shares, without the vote or consent of stockholders
(including through the establishment of uniform standards with respect
to the minimum net asset value of a stockholder account), upon the
sending of written notice thereof to each stockholder any of whose
shares are so redeemed and upon such terms and conditions as the Board
of Directors shall deem advisable, out of funds legally available
therefor, at net asset value per share determined in accordance with
the provisions of this Article and to take all other steps deemed
necessary or advisable in connection therewith. The Board of Directors
may authorize the closing of those accounts not meeting the specified
minimum standards of net asset value by redeeming all of the shares in
such accounts.
19. The holders of shares of Common Stock or other securities
of the Corporation shall have no preemptive rights to subscribe to new
or additional shares of its Common Stock or other securities.
SIXTH: The number of Directors of the Corporation shall
initially be three. The number of Directors may be increased or
decreased in accordance with the By-laws so long as the number is never
less than three. The names of the initial Directors who shall act until
the first annual meeting or until their successors are duly chosen and
qualified are: Philip W. Coolidge, Molly S. Mugler and Christine D.
Dorsey.
SEVENTH: 1. A Director or officer of the Corporation shall not
be liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director or officer, except to the
extent such exemption from liability or limitation thereof is not
permitted by law (including the Investment Company Act of 1940) as
currently in effect or as the same may hereafter be amended.
No amendment, modification or repeal of this Section 1 shall
adversely affect any right or protection of a Director or officer that
exists at the time of such amendment, modification or repeal.
2. The Corporation shall indemnify to the fullest extent
permitted by law (including the Investment Company Act of 1940) as
currently in effect or as the same may hereafter be amended any person
made or threatened to be made a party to any action, suit or
proceeding, whether criminal, civil, administrative or investigative,
by reason of the fact that such person or such person's testator or
intestate is or was a Director or officer of the Corporation or serves
or served at the request of the Corporation any other enterprise as a
director or officer. To the fullest extent permitted by law (including
the Investment Company Act of 1940) as currently in effect or as the
same may hereafter be amended, expenses incurred by any such person in
defending any such action, suit or proceeding shall be paid or
reimbursed by the Corporation promptly upon receipt by it of an
undertaking of such person to repay such expenses if it is ultimately
determined that such person is not entitled to be indemnified by the
Corporation. The rights provided to any person by this Section 2 shall
be enforceable against the Corporation by such person, who shall be
presumed to have relied upon it in serving or continuing to serve as a
director or officer as provided above. No amendment of this Section 2
shall impair the right of any person arising at any time with respect
to events occurring prior to such amendment. For purpose of this
Section 2, the term "Corporation" shall include any predecessor of the
Corporation and any constituent corporation (including any constituent
of a constituent) absorbed by the Corporation in a consolidation or
merger; the term "other enterprise" shall include any corporation,
partnership, joint venture, trust or employee benefit plan; service "at
the request of the Corporation" shall include service as a Director or
officer of the Corporation which imposes duties on, or involves
services by, such Director or officer with respect to an employee
benefit plan, its participants or beneficiaries; any excise taxes
assessed on a person with respect to an employee benefit plan shall be
deemed to be indemnifiable expenses; and action by a person with
respect to any employee benefit plan which such person reasonably
believes to be in the interest of the participants and beneficiaries of
such plan shall be deemed to be action not opposed to the best
interests of the Corporation. The provisions of this Section 2 shall be
in addition to the other provisions of this Article.
3. Nothing in this Article protects, or purports to protect,
any Director or officer against any liability to the Corporation or its
security holders to which he or she would otherwise be subject by
reason of willful malfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his or her office.
4. Each section or portion thereof of this Article shall be
deemed severable from the remainder, and the invalidity of any such
section or portion shall not affect the validity of the remainder of
this Article.
EIGHTH: The Board of Directors shall have the management and
control of the property, business and affairs of the Corporation and is
hereby vested with all the powers possessed by the Corporation itself
so far as is not inconsistent with law or these Articles of
Incorporation. In furtherance and without limitation of the foregoing
provisions, it is expressly declared that, subject to these Articles of
Incorporation, the Board of Directors shall have power:
1. To make, alter, amend or repeal from time to time the
By-laws of the Corporation except as such power may
otherwise be limited in the By-laws.
2. To authorize the repurchase of shares in the open
market or otherwise, at prices not in excess of the
net asset value of such shares determined in
accordance with Article FIFTH hereof, provided the
Corporation has assets legally available for such
purpose, and to pay for such shares in cash,
securities or other assets then held or owned by the
Corporation.
3. To fix an offering price for the shares of any series
which shall yield to the Corporation not less than
the par value thereof, at which price the shares of
the Common Stock of the Corporation shall be offered
for sale, and to determine from time to time
thereafter the offering price which shall yield to
the Corporation not less than the par value thereof
from sales of the shares of its Common Stock.
4. From time to time to determine whether and to what
extent and to what time and places and under what
conditions and regulations the books and accounts of
the Corporation, or any of them other than the stock
ledger, shall be open to the inspection of the
stockholders, and no stockholder shall have any right
to inspect any account or book or document of the
Corporation, except as conferred by law or authorized
by resolution of the Board of Directors or of the
stockholders.
5. In addition to the powers and authorities granted
herein and by statute expressly conferred upon it,
the Board of Directors is authorized to exercise all
such powers and do all acts and things as may be
exercised or done by the Corporation, subject,
nevertheless, to the provisions of Maryland law,
these Articles of Incorporation and the By-laws of
the Corporation.
NINTH: The books of the Corporation may be kept (subject to
any provisions contained in applicable statutes) outside the State of
Maryland at such place or places as may be designated from time to time
by the Board of Directors or in the By-laws of the Corporation.
TENTH: The Corporation reserves the right from time to time to
amend, alter or repeal any of the provisions of these Articles of
Incorporation (including any amendment that changes the terms of any of
the outstanding shares by classification, reclassification or
otherwise), and any contract rights, as expressly set forth in these
Articles of Incorporation, of any outstanding shares, and to add or
insert any other provisions that may, under the statutes of the State
of Maryland at the time in force, be lawfully contained in articles of
incorporation, and all rights at any time conferred upon the
stockholders of the Corporation by these Articles of Incorporation are
subject to the provisions of this Article TENTH.
ELEVENTH: The presence in person or by proxy of the holders of
record of one-third of the shares issued and outstanding and entitled
to vote thereat shall constitute a quorum for the transaction of any
business at all meetings of the stockholders except as otherwise
provided by law or in these Articles of Incorporation.
At any meeting of stockholders of the Corporation or of any
series of the Corporation, an Eligible Institution (as that term may
from time to time be defined in the applicable then-current prospectus
of the Corporation) may vote any shares as to which such Eligible
Institution is the holder or agent of record and which are not
otherwise represented in person or by proxy at the meeting,
proportionately in accordance with the votes cast by holders of all
shares otherwise represented at the meeting in person or by proxy as to
which such Eligible Institution is the holder or agent of record. Any
shares so voted by an Eligible Institution will be deemed represented
at the meeting for all purposes, including quorum purposes.
Notwithstanding any provision of Maryland law requiring more
than a majority vote of the Common Stock, or any series thereof, in
connection with any corporate action (including, but not limited to,
the amendment of these Articles of Incorporation), unless otherwise
provided in these Articles of Incorporation or unless otherwise
required by applicable law, the Corporation may take or authorize such
action upon the favorable vote of a majority of all the votes cast at a
meeting at which a quorum was present.
TWELFTH: All persons who shall acquire shares in the
Corporation shall acquire the same subject to the provisions to these
Articles of Incorporation.
THIRTEENTH:The duration of the Corporation shall be perpetual.
The term "Articles of Incorporation" as used herein and in the
By-laws of the Corporation shall be deemed to mean these Articles of
Incorporation as from time to time amended and restated.
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IN WITNESS WHEREOF, BBH Common Settlement Fund, Inc. has caused these
presents to be signed in its name and on its behalf by its President, attested
by its Secretary, on July 28, 2000.
BBH Common Settlement Fund, Inc.
(Name of Corporation)
By /s/Molly S. Mugler
Molly S. Mugler
President
Christine D. Dorsey, Secretary, hereby acknowledges on behalf of BBH
Common Settlement Fund, Inc. that the foregoing Articles of Incorporation are
the corporate act of the Corporation and further certifies under the penalties
of perjury to the best of my knowledge, information and belief, the matters and
facts set forth in the Articles are true in all material respects.
Attest:
By /s/Christine D. Dorsey
Christine D. Dorsey
Secretary
