NEXPOINT STRATEGIC OPPORTUNITIES FUND
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
As of August 28, 2020
TABLE OF CONTENTS
ARTICLE I
The Trust
Page
1.1
Name
1
1.2
Definitions
1
ARTICLE II
Trustees
2.1
Number and Qualification
3
2.2
Term and Election
3
2.3
Resignation and Removal
3
2.4
Vacancies
4
2.5
Meetings
4
2.6
Trustee Action by Written Consent
5
2.7
Officers
5
ARTICLE III
Powers and Duties of Trustees
3.1
General
5
3.2
Investments
5
3.3
Legal Title
5
3.4
Issuance and Repurchase of Shares
6
3.5
Borrow Money or Utilize Leverage
6
3.6
Delegation; Committees
6
3.7
Collection and Payment
6
3.8
Expenses
6
3.9
By-Laws
7
3.10
Miscellaneous Powers
7
3.11
Further Powers
7
ARTICLE IV
Advisory, Management and Distribution Arrangements
4.1
Advisory and Management Arrangements
8
4.2
Distribution Arrangements
8
4.3
Parties to Contract
8
ARTICLE V
Limitations of Liability and Indemnification
5.1
No Personal Liability of Shareholders, Trustees, etc.
8
5.2
Mandatory Indemnification
9
5.3
No Bond Required of Trustees
10
5.4
No Duty of Investigation; No Notice in Trust Instruments, etc.
10
5.5
Reliance on Experts, etc.
10
ARTICLE VI
Shares of Beneficial Interest
6.1
Beneficial Interest
11
6.2
Other Securities
11
6.3
Rights of Shareholders
11
6.4
Trust Only
11
6.5
Issuance of Shares
11
6.6
Register of Shares
12
Page
6.7
Transfer Agent and Xxxxxxxxx
00
6.8
Transfer of Shares
12
6.9
Notices
12
ARTICLE VII
Custodians
7.1
Appointment and Duties
13
7.2
Central Certificate System
13
ARTICLE VIII
Redemption
8.1
Redemptions
13
8.2
Disclosure of Holding
14
ARTICLE IX
Determination of Net Asset Value Net Income and Distributions
9.1
Net Asset Value
14
9.2
Distributions to Shareholders
14
9.3
Power to Modify Foregoing Procedures
14
ARTICLE X
Shareholders
10.1
Meetings of Shareholders
15
10.2
Voting
15
10.3
Notice of Meeting and Record Date
15
10.4
Quorum and Required Vote
15
10.5
Proxies, etc.
16
10.6
Reports
16
10.7
Inspection of Records
16
10.8
Shareholder Action by Written Consent
17
ARTICLE XI
Duration; Termination of Trust; Amendment; Mergers,
Etc.
11.1
Duration
17
11.2
Termination
17
11.3
Amendment Procedure
17
11.4
Merger, Consolidation and Sale of Assets
18
11.5
Subsidiaries
18
11.6
Conversion
18
11.7
Certain Transactions
19
ARTICLE XII
Miscellaneous
12.1
Filing
20
12.2
Resident Agent
20
12.3
Governing Law
20
12.4
Counterparts
21
12.5
Reliance by Third Parties
21
12.6
Provisions in Conflict with Law or Regulation
21
NEXPOINT STRATEGIC OPPORTUNITIES FUND
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST initially
made as of March 10, 2006, by the Trustees
hereunder, and by the holders of shares of
beneficial interest issued hereunder as hereinafter
provided, and amended and/or restated from time to
time, most recently as of August 28, 2020.
WHEREAS, this Trust has been formed to carry
on business as set forth more particularly
hereinafter;
WHEREAS, this Trust is authorized to issue an
unlimited number of its shares of beneficial
interest all in accordance with the provisions
hereinafter set forth;
WHEREAS, the Trustees have agreed to manage
all property coming into their hands as Trustees of
a Delaware statutory trust in accordance with the
provisions hereinafter set forth; and
WHEREAS, the parties hereto intend that the
Trust created by this Declaration and the
Certificate of Trust filed with the Secretary of
State of the State of Delaware on March 10, 2006
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
NexPoint Strategic Opportunities Fund and the
Trustees shall conduct the business of the Trust
under that name or any other name or names as they
may from time to time determine.
1.2 Definitions. As used in this Declaration,
the following terms shall have the following
meanings:
1940 Act shall mean the Investment Company Act
of 1940 and the rules and regulations promulgated
thereunder and exemptions granted therefrom, as
amended from time to time.
Affiliated Person shall, for so long as the
Trust shall remain registered as an investment
company under the 1940 Act, have the meanings given
to it in the 1940 Act.
Assignment shall, for so long as the Trust
shall remain registered as an investment company
under the 1940 Act, have the meanings given to it in
the 1940 Act.
By-Laws shall mean the By-Laws of the Trust as
amended from time to time by the Trustees, which By-
Laws are expressly herein incorporated by reference
as part of the governing instrument within the
meaning of the DSTA.
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 Act or DSTA 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.
Fundamental Policies shall, for so long as the
Trust shall remain registered as an investment
company under the 1940 Act, 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.
Interested Person shall, for so long as the
Trust shall remain registered as an investment
company under the 1940 Act, have the meanings given
to it in the 1940 Act.
Majority Shareholder Vote shall, for so long
as the Trust shall remain registered as an
investment company under the 1940 Act, mean a vote
of a majority of the outstanding voting securities
(as such term is defined in the 0000 Xxx) of the
Trust with each class and series of Shares voting
together as a single class, except to the extent
otherwise required by the 1940 Act or this
Declaration with respect to any one or more classes
or series of Shares, in which case the applicable
proportion of such classes or series of Shares
voting as a separate class or series, as 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.
Principal Underwriter shall, for so long as the
Trust shall remain registered as an investment
company under the 1940 Act, have the meanings given
to it in the 1940 Act.
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. The number of
Trustees shall be determined by a written instrument
signed by a majority of the Trustees then in office.
Except as otherwise provided from time to time by a
majority of the Trustees, the number of Trustees
shall be no less than two or more than eleven. 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, shall not be under legal disability and
shall have such other qualifications, satisfy such
other requirements and be subject to such other
limitations as may be determined from time to time
by a majority of the Trustees. 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. As
of the date hereof, the term of office of the Class I
Trustee(s) shall expire at the annual meeting of the
Trust held in 2022, the term of office of the Class
II Trustee(s) shall expire at the annual meeting of
the Trust held in 2020 and the term of office of the
Class III Trustee(s) shall expire at the annual
meeting of the Trust held in 2021. Upon expiration of
the term of office of each class as set forth above,
the number of Trustees in such class, as determined
by the Board of Trustees, shall be elected for a term
expiring on the date of the 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 by a majority of the Trustees then in office
or, if no such Trustee then exists, by the President,
and each Trustee elected shall hold office until his
or her successor shall have been elected and shall
have qualified; provided that the term of office of
a Trustee shall terminate and a vacancy shall occur
in the event of the death, resignation, removal,
bankruptcy, adjudicated incompetence or other
incapacity to perform the duties of the office of 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), with or without cause, by
the affirmative vote of a majority of the remaining
Trustees. 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 Trustees legal representative shall
execute and deliver on such Trustees 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 applicable to Trustees 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 applicable to Trustees 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 as soon as practicable 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 determined from time to time by a majority
of the Trustees then in office. Unless provided
otherwise in this Declaration or the By-Laws and,
for so long as the Trust shall remain registered as
an investment company under the 1940 Act, 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 such number as the applicable
committee charter may provide. Unless provided
otherwise in this Declaration, the By-Laws or the
applicable committee charter, 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.
For so long as the Trust shall remain
registered as an investment company under the 1940
Act, 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, subject, for so
long as the Trust shall remain registered as an
investment company under the 1940 Act, to the
requirements of the 1940 Act with respect to
attendance in person.
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. Trustees shall act in good faith
in the manner they reasonably believe to be in the
best interest of the Trust as a whole. 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, for so long as the Trust shall
remain registered as an investment company under the
1940 Act, to the Fundamental Policies in effect from
time to time with respect to the Trust, to:
(a) manage, conduct, operate and carry on
any lawful business activity;
(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
interests in real estate and 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.
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 ARTICLE VIII and ARTICLE 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 under the DSTA.
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, for so long as the Trust shall
remain registered as an investment company under the
1940 Act, to the extent action by the entire Board
of Trustees or particular Trustees is required by
the 0000 Xxx.
3.7 Collection and Payment. The Trustees shall
have power to collect all property due to the Trust;
to pay all claims, including taxes, against the
Trust Property or the Trust, the Trustees or any
officer, employee or agent of the Trust; to
prosecute, defend, compromise or abandon any claims
relating to the Trust Property or the Trust, or the
Trustees or any officer, employee or agent of the
Trust; to foreclose any security interest securing
any obligations, by virtue of which any property is
owed to the Trust; and to enter into releases,
agreements and other instruments. The Shareholders
shall have no power to vote as to whether or not a
court action, legal proceeding or claim should or
should not be brought or maintained derivatively or
as a class action on behalf of the Trust or the
Shareholders.
3.8 Expenses. The Trustees shall have power to
incur and pay out of the assets or income of the
Trust any expenses which in the opinion of the
Trustees are necessary or incidental to carry out
any of the purposes of this Declaration, and the
business of the Trust, and to pay reasonable
compensation from the funds of the Trust to
themselves as Trustees. The Trustees shall fix the
compensation of all officers, employees and
Trustees. The Trustees may pay themselves such
compensation for special services, including legal,
underwriting, syndicating and brokerage services, as
they in good faith may deem reasonable and
reimbursement for expenses reasonably incurred by
themselves on behalf of the Trust. The Trustees
shall have the power, as frequently as they may
determine, to cause each Shareholder to pay
directly, in advance or arrears, for charges of
distribution, of the custodian or transfer,
Shareholder servicing or similar agent, a pro rata
amount as defined from time to time by the Trustees,
by setting off such charges due from such
Shareholder from declared but unpaid dividends or
distributions owed such Shareholder and/or by
reducing the number of shares in the account of such
Shareholder by that number of full and/or fractional
Shares which represents the outstanding amount of
such charges due from such Shareholder.
3.9 By-Laws. The Trustees shall have the
exclusive authority to adopt and from time to time
amend or repeal By-Laws for the conduct of the
business of the Trust.
3.10 Miscellaneous Powers. The Trustees shall
have the power to: (a) employ or contract with such
Persons as the Trustees may deem desirable for the
transaction of the business of the Trust; (b) enter
into joint ventures, partnerships and any other
combinations or associations; (c) purchase, and pay
for out of Trust Property, insurance policies
insuring the Shareholders, Trustees, officers,
employees, agents, investment advisors,
distributors, selected dealers or independent
contractors of the Trust against all claims arising
by reason of holding any such position or by reason
of any action taken or omitted by any such Person in
such capacity, whether or not constituting
negligence, or whether or not the Trust would have
the power to indemnify such Person against such
liability; (d) establish pension, profit-sharing,
share purchase, and other retirement, incentive and
benefit plans for any Trustees, officers, employees
and agents of the Trust; (e) make donations,
irrespective of benefit to the Trust, for
charitable, religious, educational, scientific,
civic or similar purposes; (f) to the full 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, for so
long as the Trust shall remain registered as an
investment company under the 1940 Act, the Trust
obtains the approval of shareholders holding at
least a majority of the Trusts 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, in any foreign country and in any and all
commonwealths, municipalities, 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, for so long as the Trust shall remain
registered as an investment company under the 1940
Act, to the requirements of the 1940 Act, 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, for so
long as the Trust shall remain registered as an
investment company under the 1940 Act, to the
requirements of 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, 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 or otherwise 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 in violation of
this Declaration 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 hereof or otherwise, 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 limitation of
personal liability provided under the DSTA. No
Trustee or officer of the Trust shall be subject in
such capacity to any personal liability whatsoever
to any Person, save only, for so long as the Trust
shall remain registered as an investment company
under the 1940 Act, 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) Subject to
any limitations or requirements contained in the By-
Laws, 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, for so
long as the Trust shall remain registered as an
investment company under the 1940 Act, no indemnitee
shall be indemnified hereunder against any liability
to any person or any expense of such indemnitee
arising by reason of (i) willful misfeasance, (ii)
bad faith, (iii) gross negligence, or (iv) reckless
disregard of the duties involved in the conduct of
his position (the conduct referred to in such clauses
(i) through (iv) being sometimes referred to herein
as disabling conduct). Notwithstanding the foregoing,
with respect to any action, suit or other proceeding
voluntarily prosecuted by any indemnitee as
plaintiff, indemnification shall be mandatory only if
the prosecution of such action, suit or other
proceeding by such indemnitee (1) was authorized by a
majority of the Trustees or (2) was instituted by the
indemnitee to enforce his or her rights to
indemnification hereunder in a case in which the
indemnitee is found to be entitled to such
indemnification. The rights to indemnification set
forth in this Declaration shall continue as to a
person who has ceased to be a Trustee or officer of
the Trust and shall inure to the benefit of his or
her heirs, executors and personal and legal
representatives. No amendment or restatement of this
Declaration or repeal of any of its provisions shall
limit or eliminate any of the benefits provided to
any person who at any time is or was a Trustee or
officer of the Trust or otherwise entitled to
indemnification hereunder in respect of any act or
omission that occurred prior to such amendment,
restatement or repeal.
(b) Notwithstanding the foregoing, for so
long as the Trust shall remain registered as an
investment company under the 1940 Act, 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 0000 Xxx) 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 indemnitees
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 Trustees not party
to the action (or, for so long as the Trust shall
remain registered as an investment company under the
1940 Act, 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 Shareholders or
Trustees (provided that, for so long as the Trust
shall remain registered as an investment company
under the 1940 Act, such vote includes the vote of a
majority of the Trustees who are not interested
persons, as defined in Section 2(a)(19) of the 0000
Xxx) or any other right to which he or she may be
lawfully entitled.
(e) Subject to (1), for so long as the Trust
shall remain registered as an investment company
under the 1940 Act, any limitations provided by the
1940 Act and (2) 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 permitted by law and 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 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 Trusts
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, for so long as the Trust shall remain
registered as an investment company under the 1940
Act, 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 multiple classes of common shares,
preferred interests, debt securities or other senior
securities. To the extent that the Trustees
authorize and issue additional 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 any applicable law 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 any class or series of
Shares).
6.4 Trust Only. It is the intention of the
Trustees to create only the relationship of Trustee
and beneficiary between the Trustees and each
Shareholder from time to time. It is not the
intention of the Trustees to create a general
partnership, limited partnership, joint stock
association, corporation, bailment or any form of
legal relationship other than a trust. Nothing in
this Declaration shall be construed to make the
Shareholders, either by themselves or with the
Trustees, partners or members of a joint stock
association.
6.5 Issuance of Shares. The Trustees, in their
discretion, may from time to time without vote of
the Shareholders issue Shares including preferred
shares that may have been established pursuant to
Section 6.2, in addition to the then issued and
outstanding Shares and Shares held in the treasury,
to such party or parties and for such amount and
type of consideration, including cash or property,
at such time or times, and on such terms as the
Trustees may determine, and may in such manner
acquire other assets (including the acquisition of
assets subject to, and in connection with the
assumption of, liabilities) and businesses. The
Trustees may from time to time divide or combine the
Shares 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 (1) if mailed, postage prepaid, addressed to
any Shareholder of record at his last known address
as recorded on the applicable register of the Trust;
(2) by press release or posting on the Trusts
publicly available website together in either case
with the filing of a Form 8-K; or (3) such other
method as the Trustees may determine.
ARTICLE VII
CUSTODIANS
7.1 Appointment and Duties. The Trustees shall
at all times employ a custodian or custodians, for
so long as the Trust shall remain registered as an
investment company under the 1940 Act, 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, for so long as the Trust shall remain
registered as an investment company under the 1940
Act, the 1940 Act, including without limitation
authority:
(1) to hold the securities owned by the Trust
and deliver the same upon written order;
(2) to receive any receipt for any moneys due
to the Trust and deposit the same in its own banking
department (if a bank) or elsewhere as the Trustees
may direct;
(3) to disburse such funds upon orders or
vouchers;
(4) if authorized by the Trustees, to keep the
books and accounts of the Trust and furnish clerical
and accounting services; and
(5) if authorized to do so by the Trustees, to
compute the net income or net asset value of the
Trust; all upon such basis of compensation as may be
agreed upon between the Trustees and the custodian.
The Trustees may also authorize each custodian
to employ one or more sub-custodians from time to
time to perform such of the acts and services of the
custodian and upon such terms and conditions, as may
be agreed upon between the custodian and such sub-
custodian and approved by the Trustees; provided
that, for so long as the Trust shall remain
registered as an investment company under the 1940
Act, 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, for so
long as the Trust shall remain registered as an
investment company under the 1940 Act, 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. Except as otherwise provided
by a majority of Trustees, 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 or other applicable laws or
regulations, or to comply with the requirements of
any other taxing or regulatory authority or as the
Trustees may otherwise determine is necessary or
desirable.
ARTICLE IX
DETERMINATION OF NET ASSET VALUE NET INCOME AND
DISTRIBUTIONS
9.1 Net Asset Value. For so long as the Trust
shall remain registered as an investment company
under the 1940 Act, 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 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, for so long as the Trust
shall remain registered as an investment company
under the 1940 Act, as may be required by the 1940
Act, such other bases and times for determining the
per share asset value of the Trusts 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, to the extent required by applicable law,
rules or regulations, hold annual meetings of the
Shareholders. A special meeting of Shareholders may
be called at any time by a majority of the Trustees
or the President and shall be called by any Trustee
for any proper purpose upon written request of
Shareholders of the Trust holding in the aggregate
not less than 51% of the outstanding Shares of the
Trust or class or series of Shares having voting
rights on the matter, such request specifying the
purpose or purposes for which such meeting is to be
called. Any shareholder meeting, including a Special
Meeting, shall be held within or without the State
of Delaware on such day and at such time as the
Trustees shall designate.
10.2 Voting. Shareholders shall have no power
to vote on any matter except matters on which a vote
of Shareholders is required by this Section 10.2,
Section 11.2(a), Section 11.3, Section 11.4, Section
11.6 and Section 11.7 of this Declaration or by
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 provided for by resolution of
the Trustees, 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 120 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 postponed or adjourned meeting may be
held as postponed or adjourned one or more times
without further notice not later than 120 days after
the original meeting 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 120 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) Subject to
such greater or lesser amount determined by the
Trustees as to any or all matters, 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 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) with respect to the
election of Trustees, the affirmative vote of a
plurality of the Shares represented in person or by
proxy at any meeting at which a quorum is present
shall be the act of the shareholders with respect to
such matters, (ii) with respect to all other
matters, 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 (iii) 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. Any purported
vote of any Shareholders which purported vote does
not meet the requirements of applicable state or
federal law may be disregarded as invalid if so
determined by the Trustees or the chairman of any
meeting of shareholders. In such event, such shares
shall nevertheless be counted for purposes of
determining whether a quorum is present.
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 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 applicable federal law or stock
exchange requirements, and in any event within a
reasonable period preceding any annual meeting of
Shareholders. The Trustees shall, in addition,
furnish to the Shareholders 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. Shareholders shall
have the right to inspect the records of the Trust,
including, without limitation, Shareholder lists,
documents, accounts and books of the Trust only to
the extent inalienably granted under the DSTA; all
other such rights whether or not provided in the
DSTA are expressly precluded. All Shareholders
requests to inspect the records of the Trust shall
be submitted by Shareholders to the Trustees in
writing. Upon receipt of such requests, the Trustees
may in their discretion establish procedures for any
permitted inspections. To preserve the integrity of
the Trusts records, the Trustees may provide
certified copies of Trust records rather than
originals. The Trustees shall not be required to
create records or obtain records from third parties
to satisfy Shareholders requests. The Trustees may
require Shareholders to pay in advance or otherwise
indemnify the Trust for the costs and expenses of
Shareholders inspection of records. Nothing in this
Section 10.7 is intended nor shall be construed to
permit Shareholders to inspect the records of the
Trust except as may be required by the DSTA or
permitted by the Trustees in their discretion.
10.8 Shareholder Action by Written Consent.
Except as otherwise provided by a majority of the
Trustees then in office, shareholder action may only
be taken at a duly called and held meeting of
Shareholders called for such purpose, and not by
written consent.
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 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 (measured at the
time that such termination was originally
approved by 80% of the Trustees as set forth
in this Section 11.2(a)) 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 set forth under Section 11.3(b) of
this Declaration.
(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) This Declaration
may only be amended if such amendment is approved by
a majority of the Trustees. Except as provided in
Section 11.3(b), the Trustees 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 individual Shareholder as
compared to the rights and preferences of other
Shareholders of the same class and series of Shares,
as they may deem necessary or appropriate.
(b) No amendment may be made to Section 5.1,
Section 5.2, Section 10.2 Section 11.2(a), this
Section 11.3, Section 11.4, Section 11.6 or Section
11.7 of this Declaration and no amendment may be
made to this Declaration which would change any
rights with respect to any Shares of the Trust by
reducing any stated amount payable thereon in
preference over all other classes or series of
Shares upon liquidation of the Trust or by
eliminating any voting rights pertaining thereto set
forth in Section 10.2 of this Declaration (provided
that nothing in this Section 11.3(b) shall 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 80% of the Trustees, in which
case approval of Shareholders as set forth in
Section 10.4 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 holders of then outstanding Shares.
(c) To the extent that Shareholders are
entitled to vote on any matter that in the judgement
of the Board of Trustees would prevent, impede or
make less efficient or more costly the
implementation of the proposals adopted by
Shareholders at the Special Meeting of Shareholders
held on _____, 2020 or the realization of the
benefits sought thereby, notwithstanding any other
provision of the Declaration, such matter shall,
unless otherwise determined by the vote of at least
80% of the Board of Trustees, require the
affirmative vote of not less than 75% of the
outstanding Shares.
(d) 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.
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; provided that any merger or
consolidation in which the Trust is not the
surviving entity, or sale, lease or exchange of all
or substantially all of the Trust Property of the
Trust (measured at the time that such transaction
was originally approved by two-thirds of the
Trustees as set forth in this Section 11.4) shall
require approval by Shareholders as set forth under
Section 11.3(b) of this Declaration and any such
merger, consolidation, sale, lease or exchange shall
be determined for all purposes to have been
accomplished under and pursuant to the laws 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, for so long as the Trust shall remain
registered as an investment company under the 1940
Act, 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
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 Trusts outstanding Shares entitled
to vote, the Trust shall, upon complying with any
requirements of the 1940 Act and state law, become
an open-end investment company. Such affirmative
vote or consent shall be in addition to the vote or
consent of the holders of the Shares otherwise
required by law, or any agreement between the Trust
and any national securities exchange.
11.7 Certain Transactions. (a) Notwithstanding
any other provision of this Declaration and subject
to the exceptions provided in paragraph (d) of this
Section 11.7, the types of transactions described in
paragraph (c) of this Section 11.7 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 11.7) 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 11.7,
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 11.7 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 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 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 11.7
shall not be applicable to (i) any of the
transactions described in paragraph (c) of this
Section 11.7 if 80% of the Trustees shall by
resolution have approved a memorandum of
understanding with such Principal Shareholder with
respect to and substantially consistent with such
transaction, in which case approval by Shareholders
as set forth in Section 10.4 of this Declaration
shall be the only vote of Shareholders required by
this Section 11.7, 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 11.7 on the basis of information known to
the Trust whether (i) a corporation, person or
entity beneficially owns five percent (5%) or more
of the outstanding Shares of any class or series,
(ii) a corporation, person or entity is an affiliate
or associate (as defined above) of another, (iii)
the assets being acquired or leased to or by the
Trust or any subsidiary thereof constitute a
substantial part of the assets of the Trust and have
an aggregate fair market value of less than 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 11.7.
ARTICLE XII
MISCELLANEOUS
12.1 Filing. 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 Trusts 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 Trusts 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.
12.2 Resident Agent. The Trust shall maintain
a resident agent in the State of Delaware, which
agent shall initially be The Corporation Trust
Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000 The Trustees may designate a successor
resident agent; provided, however, that such
appointment shall not become effective until written
notice thereof is delivered to the office of the
Secretary of the State.
12.3 Governing Law. This Declaration is
executed by the Trustees and delivered in the State
of Delaware and with reference to the laws thereof,
and the rights of all parties and the validity and
construction of every provision hereof shall be
subject to and construed according to the DSTA.
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 provisions of the
Code or with other applicable laws and regulations,
the conflicting provision shall, to the maximum
extent possible, be interpreted to give as much
effect as possible to the intent of the Declaration
taken as a whole; provided, however, that such
determination shall not affect any of the remaining
provisions of this Declaration or render invalid or
improper any action taken or omitted prior to such
determination.
(b) If any provision of this Declaration
shall be held invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability
shall attach only to such provision in such
jurisdiction and shall not in any manner affect such
provision in any other jurisdiction or any other
provision of this Declaration in any jurisdiction.
?
IN WITNESS WHEREOF, the undersigned has caused
this Agreement and Declaration of Trust to be
executed as of August 28, 2020.
Xxxx Xxxxx
Xxxxx Xxxxxx
Xxxxx X. Xxxx
Xx. Xxx Xxxxxxxxx
Xx Xxxxxxxxxxx
