The Gabelli Dividend & Income Trust
Exhibit to Item 77Q1(a)
THE GABELLI DIVIDEND & INCOME TRUST
____________________________________________
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
____________________________________________
As Amended, February 26, 2009
TABLE OF CONTENTS
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ARTICLE I
The Trust
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1.1 Name................................................................4
1.2 Definitions..........................................................4
ARTICLE II
Trustees
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2.1 Number and Qualification...............................................6
2.2 Term and Election.....................................................6
2.3 Resignation and Removal..............................................6
2.4 Vacancies.............................................................7
2.5 Meetings...............................................................7
2.6 Officers..............................................................8
ARTICLE III
Powers and Duties of Trustees
-----------------------------
3.1 General...............................................................8
3.2 Investments............................................................8
3.3 Legal Title...........................................................8
3.4 Issuance and Repurchase of Shares.....................................9
3.5 Borrow Money or Utilize Leverage......................................9
3.6 Collection and Payment................................................9
3.7 Expenses..............................................................9
3.8 By-Laws..............................................................10
3.9 Miscellaneous Powers.................................................10
3.10 Delegation; Committees..............................................10
3.11 Further Powers......................................................10
ARTICLE IV
Limitations of Liability
and Indemnification
-------------------
4.1 No Personal Liability of Shareholders, Trustees, etc..................11
4.2 Mandatory Indemnification.............................................11
4.3 No Duty of Investigation; Notice in Trust Instruments, etc............12
4.4 Reliance on Experts, etc.............................................13
ARTICLE V
Shares of Beneficial Interest
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5.1 Beneficial Interest..................................................13
5.2 Classes and Series...................................................13
5.3 Issuance of Shares...................................................13
5.4 Rights of Shareholders................................................14
5.5 Trust Only............................................................14
5.6 Register of Shares....................................................14
5.7 Transfer Agent and Registrar..........................................14
5.8 Transfer of Shares....................................................14
5.9 Notices...............................................................15
5.10 Net Asset Value......................................................15
5.11 Distributions to Shareholders........................................15
ARTICLE VI
Shareholders
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6.1 Meetings of Shareholders..............................................16
6.2 Voting................................................................16
6.3 Notice of Meeting, Shareholder Proposals and Record Date..............16
6.4 Quorum and Required Vote.............................................17
6.5 Proxies, etc.........................................................18
6.6 Reports...............................................................18
6.7 Inspection of Records................................................18
6.8 Shareholder Action by Written Consent.................................18
ARTICLE VII
Duration: Termination of Trust;
Amendment; Mergers, Etc.
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7.1 Duration..............................................................19
7.2 Termination............................................................19
7.3 Amendment Procedure..................................................19
7.4 Xxxxxx, Consolidation and Sale of Assets.............................20
7.5 Redemption; Conversion................................................21
7.6 Certain Transactions..................................................21
ARTICLE VIII
Miscellaneous
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8.1 Filing...............................................................23
8.2 Resident Agent.......................................................23
8.3 Governing Law.....................................................23
8.4 Counterparts........................................................23
8.5 Reliance by Third Parties............................................23
8.6 Provisions in Conflict with Law or Regulation........................24
THE GABELLI DIVIDEND & INCOME TRUST
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AGREEMENT AND DECLARATION OF TRUST
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SECOND AGREEMENT AND DECLARATION OF TRUST made as of the 26th day of
February 2009, by the Trustees hereunder, and by the holders of shares of
beneficial interest issued hereunder as hereinafter provided.
WHEREAS, the Trustees desire to amend and restate the Agreement and
Declaration of Trust made as of the 23rd day of October 2003 in its entirety
pursuant to its Section 7.3;
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 its
initial Agreement and Declaration of Trust and the Certificate of Trust filed
with the Secretary of State of the State of Delaware on August 20, 2003 shall
constitute a statutory trust under the Delaware Statutory Trust Statute 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
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1.1 Name. This Trust shall be known as the "The Gabelli Dividend &
Income Trust" and the Trustees shall conduct the business of the Trust under
that name or any other name or names as they may from time to time determine.
1.2 Definitions. As used in this Declaration, the following terms
shall have the following meanings:
The terms "Affiliated Person", "Assignment", "Commission",
"Interested Person" and "Principal Underwriter" shall have the meanings given
them in the 1940 Act.
"By-Laws" shall mean the By-Laws of the Trust as amended from time to
time by the Trustees.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder.
"Commission" shall mean the Securities and Exchange Commission.
"Declaration" shall mean this Second Amended and Restated Agreement
and Declaration of Trust, as amended or amended and restated from time to
time, including by way of any classifying or reclassifying Shares of any
class or any series of any such class or determining any designations, powers,
preferences, voting, conversion and other rights, limitations, qualifications
and terms and conditions thereof.
"Delaware Statutory Trust Statute" shall mean the provisions of the
Delaware Statutory Trust Act, 12 Del. C.ss.3801, et. seq., as such Act may be
amended from time to time.
"Person" shall mean and include natural persons, corporations,
partnerships, trusts, limited liability companies, associations, joint
ventures and other entities, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"Prospectus" shall mean the currently effective Prospectus of the
Trust, if any, 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. All references
to Shares shall be deemed to be Shares of any or all or series thereof 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.
"Trustees" shall mean the signatory to this Declaration, so long as
he 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.
"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.
The "1933 Act" refers to the Securities Act of 1933 and the rules and
regulations promulgated thereunder and applicable exemptions therefrom
covering the Trust and its affiliated persons, as amended from time to time.
The "1940 Act" refers to the Investment Company Act of 1940 and the
rules and regulations promulgated thereunder and applicable exemptions granted
therefrom, as amended from time to time.
ARTICLE II
Trustees
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2.1 Number and Qualification. Prior to a public offering of Shares,
there may be a sole Trustee and thereafter the number of Trustees shall be
such number, not less than three, as shall be set forth in a written
instrument signed or adopted by a majority of the Trustees then in office. No
reduction in the number of Trustees shall have the effect of removing any
Trustee from office prior to the expiration of his term. An individual
nominated as a Trustee shall be at least 21 years of age and not older than
such age as shall be set forth in a written instrument signed or adopted by
not less than two-thirds of the Trustees then in office and shall not be under
legal disability. Trustees need not own Shares and may succeed themselves in
office.
2.2 Term and Election. The Board of Trustees shall be divided into
three classes. Within the limits specified in Section 2.1, the number of the
Trustees in each class shall be determined by resolution of the Board of
Trustees. The initial term of office of the first class shall expire on the
date of the first annual meeting of Shareholders or special meeting in lieu
thereof. The initial term of office of the second class shall expire on the
date of the second annual meeting of Shareholders or special meeting in lieu
thereof. The initial term of office of the third class shall expire on the
date of the third annual meeting of Shareholders or special meeting in lieu
thereof. Upon expiration of the initial term of office of each class as set
forth above and the expiration of each subsequent term of office of such
class, the term of Trustees of such class shall be three years and until his
or her successor shall have been elected and shall have qualified or until his
or her earlier resignation, removal, incompetence, incapacitation or death.
2.3 Resignation and Removal. Any Trustee may resign his trust
(without need for prior or subsequent accounting) by an instrument in writing
signed by him and delivered or mailed to the Chairman, if any, the President
or the Secretary and such resignation shall be effective upon such delivery,
or at a later date provided in such instrument. Any Trustee may be removed
(provided the aggregate number of Trustees after such removal shall not be
less than the number required by Section 2.1 hereof) for cause at any time by
written instrument, signed by a majority of the remaining Trustees, specifying
the date when such removal shall become effective. Any Trustee 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) without cause at
any time by a written instrument, signed or adopted by two-thirds of the
remaining Trustees or by vote of Shares having not less than two-thirds of the
aggregate number of Shares entitled to vote in the election of such Trustee,
specifying the date when such removal shall become effective. Upon the
resignation or removal of a Trustee, or such persons otherwise ceasing to be a
Trustee, such persons 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 the resigning or
removed Trustee. Upon the incapacity or death of any Trustee, such Trustee's
legal representative shall execute and deliver on such Trustee's behalf such
documents as the remaining Trustees shall require as provided in the preceding
sentence.
2.4 Vacancies. The term of office of a Trustee shall terminate and a
vacancy shall occur in the event of the removal, resignation, incompetence or
other incapacity to perform the duties of the office, or death, of a Trustee.
Whenever a vacancy in the Board of Trustees shall occur, the remaining
Trustees may fill such vacancy by appointing an individual having the
qualifications described in this Article by a written instrument signed or
adopted by a majority of the Trustees then in office or by election by the
Shareholders, 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). Any
vacancy created by an increase in Trustees may be filled by the appointment of
an individual having the qualifications described in this Article made by a
written instrument signed by a majority of the Trustees then in office or by
election by the Shareholders. 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, the President, the Secretary 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 mailed or, to the extent
permitted by applicable law, transmitted by electronic mail or other form of
legally permissible electronic transmission not less than 48 hours before the
meeting or otherwise actually delivered orally or in writing not less than 24
hours before the meeting, but may be waived in writing by any Trustee either
before or after such meeting. The attendance of a Trustee at a meeting shall
constitute a waiver of notice of such meeting except where a Trustee attends a
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting has not been lawfully called or convened. The
Trustees may act with or without a meeting. A quorum for all meetings of the
Trustees shall be one-third of the Trustees then in office. Unless provided
otherwise in this Declaration of Trust, 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
or such other proportion as shall be specified herein for action at a meeting
at which all Trustees then in office are present.
Any committee of the Trustees, including an executive committee, if
any, may act with or without a meeting. A quorum for all meetings of any such
committee shall be a majority of the members thereof. Unless provided
otherwise in this Declaration, any action of any such committee may be taken
at a meeting by vote of a majority of the members present (a quorum being
present) or without a meeting by written consent of a majority of the members
or such other proportion as shall be specified herein for action at a meeting
at which all committee members are present.
With respect to actions of the Trustees and any committee of the
Trustees, Trustees who are Interested Persons in any action to be taken may be
counted for quorum purposes under this Section and shall be entitled to vote
to the extent not prohibited by the 1940 Act.
All or any one or more Trustees may participate in a meeting of the
Trustees or any committee thereof by means of a conference telephone or
similar communications equipment by means of which all persons participating
in the meeting can hear each other; participation in a meeting pursuant to any
such communications system shall constitute presence in person at such meeting
except as otherwise provided by the 1940 Act.
2.6 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 other titles and powers as the Trustees may
deem to be advisable. A Chairman shall, and the President, Secretary and
Treasurer may, but need not, be a Trustee.
ARTICLE III
Powers and Duties of Trustees
-----------------------------
3.1 General. The Trustees shall owe to the Trust and its Shareholders
the same fiduciary duties as owed by directors of corporations to such
corporations and their stockholders under the general corporation law of the
State of Delaware. 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 shall have power to engage in any activity not
prohibited by Delaware law. The enumeration of any specific power herein shall
not be construed as limiting the aforesaid power. The Trustees may perform
such acts as in their sole discretion are proper for conducting the business
of the Trust. The powers of the Trustees may be exercised without order of or
resort to any court. No Trustee shall be obligated to give any bond or other
security for the performance of any of his duties or powers hereunder.
3.2 Investments. The Trustees shall have power to:
(a) manage, conduct, operate and carry on the business of an
investment company;
(b) subscribe for, invest in, reinvest in, purchase or otherwise
acquire, hold, pledge, sell, assign, transfer, exchange, distribute or
otherwise deal in or dispose of any and all sorts of property, tangible or
intangible, including but not limited to securities of any type whatsoever,
whether equity or non-equity, of any issuer, evidences of indebtedness of any
person and any other rights, interests, instruments or property of any sort
and to exercise any and all rights, powers and privileges of ownership or
interest in respect of any and all such investments of every kind and
description, including, without limitation, the right to consent and otherwise
act with respect thereto, with power to designate one or more Persons to
exercise any of said rights, powers and privileges in respect of any of said
investments. The Trustees shall not be limited by any law limiting the
investments which may be made by fiduciaries.
3.3 Legal Title. Legal title to all the Trust Property shall be
vested in the Trustees as joint tenants except that the Trustees shall have
power to cause legal title to any Trust Property to be held by or in the name
of one or more of the Trustees, or in the name of the Trust, or in the name of
any other Person as nominee, custodian or pledgee, on such terms as the
Trustees may determine, provided that the interest of the Trust therein is
appropriately protected.
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 shall be effective whether
or not conveyancing documents have been executed and delivered.
3.4 Issuance and Repurchase of Shares. Subject to the provisions of
this Declaration and applicable law, 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 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
not prohibited by the laws of the State of Delaware governing statutory
trusts.
3.5 Borrow Money or Utilize Leverage. The Trustees shall have the
power to borrow money or otherwise obtain credit or utilize leverage in
connection with the activities of the Trust to the maximum extent permitted by
law, regulation or order 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 Collection and Payment. The Trustees shall have power to collect
all property due to the Trust; to pay all claims, including taxes, against the
Trust Property or the Trust, the Trustees or any officer, employee or agent of
the Trust; to prosecute, defend, compromise or abandon any claims relating to
the Trust Property or the Trust, or the Trustees or any officer, employee or
agent of the Trust; to foreclose any security interest securing any
obligations, by virtue of which any property is owed to the Trust; and to
enter into releases, agreements and other instruments. Except to the extent
required for a Delaware business corporation, 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.
3.7 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 appropriate 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.
3.8 By-Laws. The Trustees may adopt and from time to time amend or
repeal By-Laws for the conduct of the business of the Trust. Such By-Laws
shall be binding on the Trust and the Shareholders unless inconsistent with
the provisions of this Declaration. The Shareholders shall not have authority
to adopt, amend or repeal By-Laws.
3.9 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, including investment advisors,
administrators, custodians, transfer agents, shareholder services providers,
accountants, counsel, brokers, dealers and others, and to delegate or grant to
such persons all such power and authority as the Trustees may determine; (b)
enter into joint ventures, partnerships and any other combinations or
associations; (c) purchase, and pay for out of Trust Property, insurance
policies insuring the Shareholders, Trustees, officers, employees, agents,
investment advisors, distributors, selected dealers or independent contractors
of the Trust against all claims arising by reason of holding any such position
or by reason of any action taken or omitted by any such Person in such
capacity, whether or not constituting negligence, or whether or not the Trust
would have the power to indemnify such Person against such liability; (d)
establish pension, profit-sharing, share purchase, and other retirement,
incentive and benefit plans for any Trustees, officers, employees and agents
of the Trust; (e) make donations, irrespective of benefit to the Trust, for
charitable, religious, educational, scientific, civic or similar purposes; (f)
to the extent permitted by applicable law, indemnify any Person with whom the
Trust has dealings, including without limitation any investment adviser,
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; and (i) 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.
3.10 Delegation; Committees. The Trustees shall have the power,
consistent with their continuing exclusive authority over the management of
the Trust and the Trust Property, to delegate from time to time to such of
their number or to officers, employees or agents of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Trustees or otherwise as the Trustees may deem
expedient. The Trustees may designate one or more committees each of which
shall have all or such lesser portion of the power and authority of the entire
Board of Trustees as the Trustees shall determine from time to time, except to
the extent action by the entire Board of Trustees or particular Trustees is
required by the 1940 Act.
3.11 Further Powers. The Trustees shall have the power to conduct the
business of the Trust and carry on its operations in any and all of its
branches and maintain offices both within and without the State of Delaware,
in any and all states of the United States of America, in the District of
Columbia, and in any and all commonwealths, territories, dependencies,
colonies, possessions, agencies or instrumentalities of the United States of
America and of foreign governments, and to do all such other things and
execute all such instruments as they deem necessary, proper or desirable in
order to promote the interests of the Trust although such things are not
herein specifically mentioned. Any determination as to what is in the
interests of the Trust made by the Trustees in good faith shall be conclusive.
In construing the provisions of this Declaration, the presumption shall be in
favor of a grant of power to the Trustees.
ARTICLE IV
Limitations of Liability
and Indemnification
-------------------
4.1 No Personal Liability of Shareholders, Trustees, etc. No
Shareholder of the Trust shall be subject in such capacity to any personal
liability whatsoever to any Person in connection with Trust Property or the
acts, obligations or affairs of the Trust. Shareholders shall have the same
limitation of personal liability as is extended to stockholders of a private
corporation for profit incorporated under the general corporation law of the
State of Delaware. No Trustee or officer of the Trust shall be subject in such
capacity to any personal liability whatsoever to any Person, other than the
Trust or its Shareholders, in connection with Trust Property or the affairs of
the Trust, save only liability to the Trust or its Shareholders arising from
bad faith, willful misfeasance, gross negligence or reckless disregard for his
duty to such Person; and, subject to the foregoing exception, all such Persons
shall look solely to the Trust Property for satisfaction of claims of any
nature arising in connection with the affairs of the Trust. If any
Shareholder, Trustee or officer, as such, of the Trust, is made a party to any
suit or proceeding to enforce any such liability, subject to the foregoing
exception, he shall not, on account thereof, be held to any personal
liability.
4.2 Mandatory Indemnification. (a) The Trust shall indemnify the
Trustees and officers 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 (other than, except
as authorized by the Trustees, as the plaintiff or complainant) or with which
he may be or may have been threatened, while acting in any capacity set forth
above in this Section 4.2 by reason of his having acted in any such capacity,
except with respect to any matter as to which he shall not have acted in good
faith in the reasonable belief that his action was in the best interest of the
Trust or, in the case of any criminal proceeding, as to which he shall have
had reasonable cause to believe that the conduct was unlawful, provided,
however, that no indemnitee shall be indemnified hereunder against any
liability to any person or any expense of such indemnitee arising by reason of
(i) willful misfeasance, (ii) bad faith, (iii) gross negligence (negligence in
the case of Affiliated Indemnitees), 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 was authorized by a majority of
the Trustees.
(b) Notwithstanding the foregoing, no indemnification shall be
made hereunder unless there has been a determination (1) 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, (2) in the absence of
such a decision, by (i) a majority vote of a quorum of those Trustees who are
neither Interested Persons of the Trust nor parties to the proceeding
("Disinterested Non-Party Trustees"), that the indemnitee is entitled to
indemnification hereunder, or (ii) if such quorum is not obtainable or even if
obtainable, if such majority so directs, independent legal counsel in a
written opinion conclude that the indemnitee should be entitled to
indemnification hereunder. All determinations to make advance payments in
connection with the expense of defending any proceeding shall be authorized
and made in accordance with the immediately succeeding paragraph (c) below.
(c) The Trust shall make advance payments in connection with the
expenses of defending any action with respect to which indemnification might
be sought hereunder if the Trust receives a written affirmation by the
indemnitee of the indemnitee's good faith belief that the standards of conduct
necessary for indemnification have been met and a written undertaking to
reimburse the Trust unless it is subsequently determined that he 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:
(1) the indemnitee shall provide adequate security for his undertaking, (2)
the Trust shall be insured against losses arising by reason of any lawful
advances, or (3) a majority of a quorum of the Disinterested Non-Party
Trustees, or if a majority vote of such quorum so direct, independent legal
counsel in a written opinion, shall conclude, based on a review of readily
available facts (as opposed to a full trial-type inquiry), that there is
substantial reason to believe that the indemnitee ultimately will be found
entitled to indemnification.
(d) The rights accruing to any indemnitee under these provisions
shall not exclude any other right to which he may be lawfully entitled.
(e) Notwithstanding the foregoing, subject to any limitations
provided by the 1940 Act and this Declaration, the Trust shall have the power
and authority to indemnify Persons providing services to the Trust to the full
extent provided by law as if the Trust were a corporation organized under the
Delaware General Corporation Law provided that such indemnification has been
approved by a majority of the Trustees.
4.3 No Duty of Investigation; 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, its
Shareholders, Trustees, officers, employees and agents in such amount as the
Trustees shall deem adequate to cover possible liability, and such other
insurance as the Trustees in their sole judgment shall deem advisable or is
required by the 1940 Act.
4.4 Reliance on Experts, etc. Each Trustee and officer or employee of
the Trust shall, in the performance of its duties, be fully and completely
justified and protected with regard to any act or any failure to act resulting
from reliance in good faith upon the books of account or other records of the
Trust, upon an opinion of counsel, or upon reports made to the Trust by any of
the Trust's officers or employees or by any advisor, administrator, manager,
distributor, selected dealer, accountant, appraiser or other expert or
consultant selected with reasonable care by the Trustees, officers or
employees of the Trust, regardless of whether such counsel or other person may
also be a Trustee.
ARTICLE V
Shares of Beneficial Interest
-----------------------------
5.1 Beneficial Interest. The interest of the beneficiaries hereunder
shall be divided into an unlimited number of 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 nonassessable
when the consideration determined by the Trustees (if any) therefor shall have
been received by the Trust.
5.2 Classes and Series. The Trustees shall have the authority,
without the approval of the holders of any Shares of the Trust, to classify
and reclassify issued and unissued Shares into one or more classes and one or
more series of any or all of such classes, each of which classes and series
thereof shall have such designations, powers, preferences, voting, conversion
and other rights, limitations, qualifications and terms and conditions as the
Trustees shall determine from time to time with respect to each such class or
series; provided, however, that no reclassification of any issued and
outstanding Shares and no modifications of any of the designations, powers,
preferences, voting, conversion or other rights, limitations, qualifications
and terms and conditions of any issued and outstanding Shares may be made by
the Trustees without the affirmative vote of the holders of Shares specified
in Section 7.3(a) to the extent required thereby. The initial class of Shares
of the Trust shall be designated as "Common Shares", subject to redesignation
as aforesaid. To the extent expressly determined by the Trustees as aforesaid,
all consideration received by the Trust for the issue or sale of Shares of a
class, together with all income, earnings, profits and proceeds thereof,
including any proceeds derived from the sale, exchange or liquidation thereof,
and any funds or payments derived from any reinvestment of such proceeds in
whatever form the same may be, shall irrevocably belong to such class subject
only to the rights of the creditors, and all liabilities allocable to such
class shall be charged thereto.
5.3 Issuance of Shares. The Trustees, in their discretion, may from
time to time without vote of the Shareholders issue Shares of any class or any
series of any such class 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 of any class or any series of any such class
into a greater or lesser number without thereby changing the proportionate
beneficial interest in such Shares. Issuances and repurchases of Shares may be
made in whole Shares and/or l/l,000ths of a Share or multiples thereof as the
Trustees may determine.
5.4 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 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 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 5.4, in Section 7.4 or
as specified by the Trustees in the designation or redesignation of any class
or series thereof of the Shares).
5.5 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.
5.6 Register of Shares. A register shall be kept at 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
and each series of each class. Each such register shall be conclusive as to
who are the holders of the Shares of the applicable class and series 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.
5.7 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 agent and registrar shall perform
the duties usually performed by transfer agents and registrars of stock in a
corporation, as modified by the Trustees.
5.8 Transfer of Shares. Shares shall be transferable on the records
of the Trust only by the record holder thereof or by its agent thereto duly
authorized in writing, upon delivery to the Trustees or a transfer agent of
the Trust of a duly executed instrument of transfer, together with such
evidence of the genuineness of each such execution and authorization and of
other matters as may reasonably be required. Upon such delivery the transfer
shall be recorded on the applicable register of the Trust. Until such record
is made, the Shareholder of record shall be deemed to be the holder of such
Shares for all purposes hereof and neither the Trustees nor any transfer agent
or registrar nor any officer, employee or agent of the Trust shall be affected
by any notice of the proposed transfer.
Any person becoming entitled to any Shares in consequence of the
death, bankruptcy, or incompetence of any Shareholder, or otherwise by
operation of law, shall be recorded on the applicable register of Shares as
the holder of such Shares upon production of the proper evidence thereof to
the Trustees or a transfer agent of the Trust, but until such record is made,
the Shareholder of record shall be deemed to be the holder of such for all
purposes hereof, and neither the Trustees nor any transfer agent or registrar
nor any officer or agent of the Trust shall be affected by any notice of such
death, bankruptcy or incompetence, or other operation of law.
5.9 Notices. Any and all notices to which any Shareholder hereunder
may be entitled and any and all communications to any Shareholder shall be
deemed duly served or given if transmitted by electronic mail or other form
of legally permissible electronic transmission, or if mailed, postage
prepaid, addressed to any Shareholder of record at his last known address
as recorded on the applicable register of the Trust and may be sent together
with any such notice or other communication to another Shareholder at the
same address. To the extent consistent with applicable law, including any
regulation or order, or consented to by any Shareholder, any such notice or
other communication may be given or made in any other manner. Notice
directed to a shareholder by electronic mail or other form of legally
permissible electronic transmission shall be transmitted to any address at
which the shareholder receives electronic mail or other electronic
transmissions.
5.10 Net Asset Value. The value of the assets of the Trust, the
amount of liabilities of the Trust and the net asset value of each outstanding
Common Share of the Trust shall be determined at such time or times on such
days as the Trustees may determine, in accordance with the 1940 Act. The
method of determination of net asset value shall be determined by the
Trustees. The power and duty to make net asset value determinations and
calculations may be delegated by the Trustees.
5.11 Distributions to Shareholders.
(a) The Trustees shall from time to time distribute among the
Shares (or one or more classes or series thereof) such portion 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 the
instrument setting forth the terms of such Shares or such class or series of
Shares, which need not be ratable with respect to distributions in respect of
Shares of any other class or series thereof of the Trust. Such distributions
may be made in cash or property (including without limitation any type of
obligations of the Trust or any assets thereof) or any combination thereof.
(b) Distributions may be made to the Shareholders of record
entitled to such distribution at the time such distribution is declared or at
such later date as shall be determined by the Trust prior to the date of
payment.
(c) The Trustees may always retain from any source 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 of the Trust.
ARTICLE VI
Shareholders
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6.1 Meetings of Shareholders. The Trust may, but shall not be
required to, hold annual meetings of the holders of any class or series of
Shares. An annual or special meeting of Shareholders may be called at any time
only by the Trustees; provided, however, that if May 31 of any year shall have
passed and the Trustees shall not have called an annual meeting of
Shareholders for such year, the Trustees shall call a meeting for the purpose
of voting on the removal of one or more Trustees or the termination of any
investment advisory agreement, upon written request of holders of Shares of
the Trust having in the aggregate not less than a majority of the votes of the
outstanding Shares of the Trust entitled to vote on the matter or matters in
question, such request specifying the purpose or purposes for which such
meeting is to be called. Any meeting of Shareholders shall be held within or
without the State of Delaware on such day and at such time as the Trustees
shall designate.
6.2 Voting. Shareholders shall have no power to vote on any matter
(including matters as to which the Delaware Statutory Trust Statute specifies
a voting requirement in the absence of a provision in the Declaration, it
being the intention of this Declaration that Shareholders shall have no power
to vote on any such matter except as described herein) except matters on which
a vote of Shares is required by or pursuant to the 1940 Act, this Declaration,
the By-Laws or resolution of the Trustees. Any matter required to be submitted
for approval of any of the Shares and affecting one or more classes or series
shall require approval by the required vote of Shares of the affected class or
classes and series voting together as a single class and, if such matter
affects one or more classes or series thereof differently from one or more
other classes or series thereof or from one or more series of the same class,
approval by the required vote of Shares of such other class or classes or
series or series voting as a separate class shall be required in order to be
approved with respect to such other class or classes or series or series;
provided, however, that except to the extent required by the 1940 Act, there
shall be no separate class votes on the election or removal of Trustees or the
selection of auditors for the Trust. Shareholders of a particular class or
series thereof shall not be entitled to vote on any matter that affects the
rights or interests of only one or more other classes or series of such other
class or classes or only one or more other series of the same class. There
shall be no cumulative voting in the election or removal of Trustees.
6.3 Notice of Meeting, Shareholder Proposals 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 or, to the extent permitted by
applicable law or consented to by the Shareholder, electronic mail or other form
of legally permissible electronic transmission, to each Shareholder of record
entitled to vote thereat at its registered address or electronic address, mailed
or transmitted at least 10 days before the meeting or otherwise in compliance
with applicable law. Except with respect to an annual meeting, at which any
business required by the 1940 Act may be conducted, only the business stated in
the notice of the meeting shall be considered at such meeting. Subject to the
provisions of applicable law, any Shareholder wishing to include a proposal to
be considered at an annual meeting must submit such proposal to the Trust at
least 30 days in advance of such meeting. Any adjourned meeting may be held as
adjourned one or more times without further notice not later than 130 days after
the record date. For the purposes of determining the Shareholders who are
entitled to notice of and to vote at any meeting the Trustees may, without
closing the transfer books, fix a date not more than 100 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. Notice
directed to a shareholder by electronic mail or other form of electronic
transmission may be transmitted to any address at which the shareholder receives
electronic mail or other electronic transmissions.
6.4 Quorum and Required Vote.
(a) The holders of one-third of the outstanding Shares of the
Trust on the record date present in person or by proxy shall constitute a
quorum at any meeting of the Shareholders for purposes of conducting business
on which a vote of all Shareholders of the Trust is being taken. The holders
of one-third of the outstanding Shares of a class or classes on the record
date present in person or by proxy shall constitute a quorum at any meeting of
the Shareholders of such class or classes for purposes of conducting business
on which a vote of Shareholders of such class or classes is being taken. The
holders of one-third of the outstanding Shares of a series or series on the
record date present in person or by proxy shall constitute a quorum at any
meeting of the Shareholders of such series or series for purposes of
conducting business on which a vote of Shareholders of such series or series
is being taken. Shares underlying a proxy as to which a broker or other
intermediary states its absence of authority to vote with respect to one or
more matters shall be treated as present for purposes of establishing a quorum
for taking action on any such matter only to the extent so determined by the
Trustees at or prior to the meeting of Shareholders at which such matter is to
be considered.
(b) Subject to any provision of the 1940 Act or this Declaration
specifying or requiring a greater or lesser vote requirement for the
transaction of any matter of business at any meeting of Shareholders or, in
the absence of any such provision of the 1940 Act or this Declaration, subject
to any provision of the By-Laws or resolution of the Trustees specifying or
requiring a greater or lesser vote requirement, (i) the affirmative vote of a
plurality (or, if provided by the By-Laws, a majority) of the Shares present
in person or represented by proxy and entitled to vote for the election of any
Trustee or Trustees shall be the act of such Shareholders with respect to the
election of such Trustee or Trustees, (ii) the affirmative vote of a majority
of the Shares present in person or represented by proxy and entitled to vote
on any other 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 is
required on any matter, the affirmative vote of a majority of the Shares of
such class or classes or series or series present in person or represented by
proxy and entitled to vote on such matter shall be the act of the Shareholders
of such class or classes or series or series with respect to such matter.
Except to the extent required by the 1940 Act, a majority of the Shares of any
series or class shall mean the lesser of a majority of the outstanding Shares
of such class or series and at least 67% of a quorum of at least 50% of the
Shares held of record on the relevant record date present in person or by
proxy.
6.5 Proxies, etc. At any meeting of Shareholders, any holder of
Shares entitled to vote thereat may vote by 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. Only Shareholders of record shall be
entitled to vote. Each full Share shall be entitled to one vote and each
fractional Share shall be entitled to a vote equal to its fraction of a full
Share. When any Share is held jointly by several persons, any one of them may
vote at any meeting in person or by proxy in respect of such Share, but if
more than one of them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to any vote to
be cast, such vote shall not be received in respect of such Share. A proxy
purporting to be given by or on behalf of a Shareholder of record on the
record date for a meeting shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall rest on the
challenger. If the holder of any such Share is a minor or a person of unsound
mind, and subject to guardianship or to the legal control of any other person
as regards the charge or management of such Share, he may vote by his guardian
or such other person appointed or having such control, and such vote may be
given in person or by proxy. The Trustees shall have the authority to make and
modify from time to time regulations regarding the validity of proxies. In
addition to signed proxies, such regulations may authorize facsimile,
telephonic, Internet and other methods of appointing a proxy that are subject
to such supervision by or under the direction of the Trustees as the Trustees
shall determine.
6.6 Reports. The Trustees shall cause to be prepared and sent to
Shareholders at least annually and more frequently to the extent and in the
form required by law, regulation or any exchange on which Shares are listed a
report of operations containing financial statements of the Trust prepared in
conformity with generally accepted accounting principles and applicable law.
6.7 Inspection of Records. The records of the Trust shall be open to
inspection by Persons who have been holders of record of at least $25,000 in
net asset value or liquidation preference of Shares for a continuous period of
not less than six months to the same extent and for the same purposes as is
permitted under the Delaware General Business Corporation Law to shareholders
of a Delaware business corporation.
6.8 Shareholder Action by Written Consent. Any action which may be
taken by Shareholders by vote may be taken without a meeting if the holders of
all of the Shares entitled to vote thereon consent to the action in writing
and the written consents are filed with the records of the meetings of
Shareholders. Such consent shall be treated for all purposes as a vote taken
at a meeting of Shareholders.
ARTICLE VII
Duration: Termination of Trust;
Amendment; Mergers, Etc.
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7.1 Duration. Subject to termination in accordance with the
provisions of Section 7.2 hereof, the Trust created hereby shall have
perpetual existence.
7.2 Termination.
(a) The Trust may be dissolved, after two thirds of the Trustees
then in office have approved a resolution therefor, upon approval by Xxxxxx
having at least 75% of the votes of all of the Shares outstanding on the
record date for such meeting, voting as a single class except to the extent
required by the 1940 Act. 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, merger where the
Trust is not the survivor, transfer or otherwise dispose of all or any
part of the remaining Trust Property to one or more Persons at public or
private sale for consideration which may consist in whole or in part in
cash, securities or other property of any kind, discharge or pay its
liabilities, and do all other acts appropriate to liquidate its business;
provided that any sale, conveyance, assignment, exchange, merger in which
the Trust is not the survivor, transfer or other disposition of all or
substantially all the Trust Property of the Trust shall require approval
of the principal terms of the transaction and the nature and amount of
the consideration with the same vote as required for dissolution pursuant
to paragraph (a) above.
(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.
7.3 Amendment Procedure.
(a) Except as required by applicable law or this Declaration,
the Trustees may amend this Declaration without any vote of Shareholders,
including to change the name of the Trust or any class or series, to make any
change that does not adversely affect the relative rights or preferences of
any class or series of Shares or to conform this Declaration to the
requirements of the 1940 Act or any other applicable law, but the Trustees
shall not be liable for failing to do so. If a vote of Shareholders is
required by applicable law or this Declaration, or if the Trustees determine
to submit an amendment to a vote of Shareholders, then, other than with
respect to amendments of Sections 2.2, 2.3, 3.8, 6.1, 6.2, 6.4, 6.8, 7.1, 7.2,
7.3, 7.4, 7.5 and 7.6, this Declaration may be amended, after a majority of
the Trustees then in office have approved a resolution therefor, by the
affirmative vote set forth in Section 6.4(b)(ii). Sections 2.2, 2.3, 3.8, 6.1,
6.2, 6.4, 6.8, 7.1, 7.2, 7.3, 7.4, 7.5 and 7.6 may be amended, after a
majority of the Trustees then in office have approved a resolution therefor,
by the affirmative vote of the holders of not less than 75% of the affected
Shares outstanding on the record date.
(b) Nothing contained in this Declaration shall permit the
amendment of this Declaration to impair the exemption from personal liability
of the Shareholders, Trustees, officers, employees and agents of the Trust or
to permit assessments upon Shareholders.
(c) An amendment duly adopted by the requisite vote of the Board
of Trustees and, if required, 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 signed by a majority of the Trustees setting forth an amendment
and reciting that it was duly adopted by the Trustees and, if required,
Shareholders as aforesaid, or a copy of the Declaration, as amended, 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 Trustees.
Notwithstanding any other provision hereof, until such time as
Shares are issued and outstanding, this Declaration may be terminated or
amended in any respect by the affirmative vote of a majority of the Trustees
or by an instrument signed by a majority of the Trustees then in office.
7.4 Merger, Consolidation and Sale of Assets. Subject to Section 7.6,
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 or may convert into another form of organization, upon such terms and
conditions and for such consideration when and as authorized by two-thirds of
the Trustees then in office and thereafter approved by the affirmative vote of
the holders of not less than 75% (a majority (as defined in Section 6.4(b)) in
the event the provisions of the governing instruments of the entity resulting
from such transaction or, in the case of a sale or exchange of assets, the
acquiring entity contain substantially the same provisions as Sections 2.2,
2.3, 3.8, 6.1, 6.2, 6.4, 6.8, 7.1, 7.2, 7.3, 7.4, 7.5 and 7.6 of this
Declaration) of the affected Shares outstanding on the record date for the
meeting of Shareholders to approve such transaction, and any such merger,
consolidation, sale, lease, exchange or conversion shall be determined for all
purposes to have been accomplished under and pursuant to the statutes of the
State of Delaware.
7.5 Redemption; Conversion. No holder of Shares of any class or
series, other than in accordance with the provisions of Section 23(c)
(excluding Rule 23c-3 thereunder) of the 1940 Act and other than to the extent
expressly determined by the Trustees with respect to Shares qualifying as
preferred stock pursuant to Section 18(a) of the 1940 Act, shall have any
right to require the Trust or any person controlled by the Trust to purchase
any of such holder's Shares. The Trust may be converted at any time from a
"closed-end investment company" to an "open-end investment company" as those
terms are defined by the 1940 Act or a company obligated to repurchase shares
under Rule 23c-3 of the 1940 Act (an "interval company"), upon the approval of
such a proposal, together with the necessary amendments to this Declaration to
permit such a conversion, by two-thirds of the Trustees then in office, by the
holders of not less than 75% of the Trust's outstanding Shares entitled to
vote thereon and by such vote or votes of the holders of any class or classes
or series of Shares as may be required by the 1940 Act. From time to time, the
Trustees may consider recommending to the Shareholders a proposal to convert
the Trust from a "closed-end company" to an "open-end company" or "interval
company." Upon the recommendation and subsequent adoption of such a proposal
and the necessary amendments to this Declaration to permit such a conversion
by the requisite proportion of the Trust's outstanding Shares entitled to
vote, the Trust shall, upon complying with any requirements of the 1940 Act
and state law, become an "open-end investment company".
7.6 Certain Transactions. (a) Subject to the exceptions provided in
paragraph (d) of this Section, the types of transactions described in
paragraph (c) of this Section shall, following the completion of the initial
public offering of the common Shares, require the affirmative vote or consent
of the holders of eighty percent (80%) of the Shares of each class outstanding
and entitled to vote, voting as a separate class, when a Principal Shareholder
(as defined in paragraph (b) of this Section) is a party to the transaction.
Such affirmative vote or consent shall be in addition to the vote or consent
of the holders of Shares otherwise required by or pursuant to the 1940 Act,
this Declaration, the Bylaws or resolution of the Board of Trustees.
(b) The term "Principal Shareholder" shall mean any Person which
is the beneficial owner, directly or indirectly, of five percent (5%) or more
of the outstanding Shares and shall include any affiliate or associate, as
such terms are defined in clause (ii) below, of such Person. For the purposes
of this Section, in addition to the Shares which a Person beneficially owns
directly, (a) any Person 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 Person 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 as in
effect on the date of initial adoption of this Declaration, and (b) the
outstanding Shares shall include Shares deemed owned through application of
clauses (i) and (ii) above but shall not include any other Shares which may be
issuable pursuant to any agreement, or upon exercise of conversion rights or
warrants, or otherwise.
(c) This Section shall apply to the following transactions:
(i) The merger or consolidation of the Trust or any
subsidiary of the Trust with or into any Principal Shareholder.
(ii) The issuance of any securities of the Trust to any
Principal Shareholder for cash (other than pursuant to any automatic
dividend reinvestment plan or pursuant to any offering in which such
Principal Shareholder acquires securities that represent no greater a
percentage of any class or series of securities being offered than the
percentage of any class of Shares beneficially owned by such Principal
Shareholder immediately prior to such offering or, in the case of
securities, offered in respect of another class or series, the percentage
of such other class or series beneficially owned by such Principal
Shareholder immediately prior to such offering).
(iii) The sale, lease or exchange of all or any
substantial part of the assets of the Trust to any Principal Shareholder
(except assets having an aggregate fair market value of less than
$5,000,000, aggregating for the purpose of such computation all assets
sold, leased or exchanged in any series of similar transactions within a
twelve-month period.)
(iv) The sale, lease or exchange to the Trust or any
subsidiary thereof, in exchange for securities of the Trust of any assets
of any Principal Shareholder (except assets having an aggregate fair
market value of less than $5,000,000, aggregating for the purposes of
such computation all assets sold, leased or exchanged in any series of
similar transactions within a twelve-month period).
(v) The purchase by the Trust or any Person controlled by
the Trust of any Common Shares of the Trust from such Principal
Shareholder or any person to whom such Principal Shareholder shall have
transferred such Common Shares other than pursuant to a tender offer
available to all Shareholders of the same class or series in which such
Principal Shareholder or transferee tenders no greater percentage of the
Shares of such class or series than are tendered by all other
Shareholders of such class or series in the aggregate.
(d) The provisions of this Section shall not be applicable to (i) any
of the transactions described in paragraph (c) of this Section if two-thirds of
the Board of Trustees then in office shall by resolution have approved a
memorandum of understanding with such Principal Shareholder with respect to and
substantially consistent with such transaction prior to the time such Person
shall have become a Principal Shareholder, or (ii) any such transaction with any
corporation of which a majority of the outstanding shares of all classes of a
stock normally entitled to vote in elections of directors is owned of record or
beneficially by the Trust and its subsidiaries and of which such Person is not a
Principal Shareholder.
(e) The Board of Trustees shall have the power and duty to determine
for the purposes of this Section on the basis of information known to the Trust
whether (i) a Person beneficially owns five percent (5%) or more of the
outstanding Shares, (ii) a Person 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 $5,000,000, and (iv)
the memorandum of understanding referred to in paragraph (d) hereof is
substantially consistent with the transaction covered thereby. Any such
determination shall be conclusive and binding for all purposes of this Section.
ARTICLE VIII
Miscellaneous
8.1 Filing. This Declaration and any amendment (including any
supplement) hereto shall be filed in such places as may be required or as the
Trustees deem appropriate. Each amendment shall be accompanied by a
certificate signed and acknowledged by a Trustee stating that such action was
duly taken in a manner provided herein, and shall, upon insertion in the
Trust's minute book, be conclusive evidence of all amendments contained
therein. A restated Declaration, containing the original Declaration as
amended by all amendments theretofore made, may be executed from time to time
by a majority of the Trustees and shall, upon insertion in the Trust's minute
book, be conclusive evidence of all amendments contained therein and may
thereafter be referred to in lieu of the original Declaration and the various
amendments thereto.
8.2 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.
8.3 Governing Law. This Declaration is executed by a majority of 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 laws
of said State and reference shall be specifically made to the business
corporation law of the State of Delaware as to the construction of matters not
specifically covered herein or as to which an ambiguity exists, although such
law shall not be viewed as limiting the powers otherwise granted to the
Trustees hereunder and any ambiguity shall be viewed in favor of such powers.
8.4 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.
8.5 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.
8.6 Provisions in Conflict with Law or Regulation.
(a) The provisions of this Declaration are severable, and if the
Trustees shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the regulated investment company
provisions of the Code or with other applicable laws and regulations, the
conflicting provision shall be deemed never to have constituted a part of this
Declaration to the extent of such conflict; provided, however, that such
determination shall not affect any of the remaining provisions of this
Declaration or render invalid or improper any action taken or omitted prior to
such determination.
(b) If any provision of this Declaration shall be held invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability
shall attach only to such provision in such jurisdiction and shall not in any
manner affect such provision in any other jurisdiction or any other provision
of this Declaration in any jurisdiction.
IN WITNESS WHEREOF, the undersigned has caused these presents to
be executed as of the day and year first above written.
By: ________________________ ________________________
Xxxxxxx X. Xxxxxxxx Xxxxx X. Xxxx
________________________ ________________________
Xxxxx x'Xxxx Xxxxx X. Kahrenkopf, Jr.
________________________ ________________________
Xxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxx
________________________ ________________________
Xxxxxxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxx
________________________ ________________________
Xxxxxxxx X. xxx Xxxxx Xxxxxxxxx X. Xxxxx
