THE GABELLI DIVIDEND & INCOME TRUST
Exhibit 1- 77(Q)1(a)
THE GABELLI DIVIDEND & INCOME TRUST
SECOND AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
TABLE OF CONTENTS
Page
ARTICLE I
The Trust
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 Officers 5
ARTICLE III
Powers and Duties of Trustees
3.1 General 5
3.2 Investments 6
3.3 Legal Title 6
3.4 Issuance and Repurchase of Shares 6
3.5 Borrow Money or Utilize Leverage 7
3.6 Collection and Payment 7
3.7 Expenses 7
3.8 By-Laws 7
3.9 Miscellaneous Powers 7
3.10 Delegation; Committees 8
3.11 Further Powers 8
ARTICLE IV
Limitations of Liability and Indemnification
4.1 No Personal Liability of Shareholders, Trustees, etc.
8
4.2 Mandatory Indemnification 9
4.3 No Duty of Investigation; Notice in Trust Instruments,
etc. 10
4.4 Reliance on Experts, etc. 10
ARTICLE V
Shares of Beneficial Interest
5.1 Beneficial Interest 11
5.2 Classes and Series 11
5.3 Issuance of Shares 11
5.4 Rights of Shareholders 11
5.5 Trust Only 11
5.6 Register of Shares 11
5.7 Transfer Agent and Xxxxxxxxx 00
5.8 Transfer of Shares 11
5.9 Notices 11
5.10 Net Asset Value 11
5.11 Distributions to Shareholders 11
ARTICLE VI
Shareholders
6.1 Meetings of Shareholders 11
6.2 Voting 11
6.3 Notice of Meeting, Shareholder Proposals and Record
Date 11
6.4 Quorum and Required Vote 11
6.5 Proxies, etc. 11
6.6 Reports 11
6.7 Inspection of Records 11
6.8 Shareholder Action by Written Consent 11
ARTICLE VII
Duration: Termination of Trust; Amendment; Mergers, Etc.
7.1 Duration 11
7.2 Termination 11
7.3 Amendment Procedure 11
7.4 Merger, Consolidation and Sale ofAssets 11
7.5 Redemption; Conversion 11
7.6 Certain Transactions 11
ARTICLE VIII
Miscellaneous
8.1 Filing 11
8.2 Resident Agent 11
8.3 Governing Law 11
8.4 Counterparts 11
8.5 Reliance by Third Parties 11
8.6 Provisions in Conflict with Law or Regulation 11
THE GABELLI DIVIDEND & INCOME TRUST
SECOND AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
SECOND AMENDED AND RESTATED AGREEMENT AND DECLARATION
OF TRUST made as of the ______ day of February 2011, 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
Amended and Restated Agreement and Declaration of Trust last
amended February 26, 2009 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 Declaration 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
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.
Section3801, 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
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, shall not be under legal
disability and shall meet any additional qualifications as may
be provided for in the By-Laws. 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 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.
The Trustees may elect a Chairman of the Board of
Trustees, who shall not, in his or her capacity as such, be an
officer of the Trust and who shall serve at the pleasure of the
Trustees.
2.6 Officers . The Trustees shall elect a President,
a Secretary and a Treasurer 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, including by
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 0000 Xxx.
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 maybe 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 given or
made 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
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 or
independent accountants, 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, transmitted by
electronic mail or other form of 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 in accordance with the provisions of the By-Laws. 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 otherwise 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 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 (or such higher amount as may be
authorized by law) in net asset value or liquidation reference
of Shares for a continuous period of not less than six months to
the same extent and for the same purposes as is 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.
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 Shares 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 only 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 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 assumable 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 the same class
or series of securities beneficially owned by such Principal
Shareholder immediately prior to such offering or, in the case
of a class or series not then owned beneficially by such
Principal Shareholder, the percentage of Common Shares
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 knowingly 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 or agreement 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 or agreement 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.
____________________________
Xxxxx X. Xxxxxxx
____________________________
Xxxxxxx X. Xxxxxxxx
____________________________
Xxxxx X. Xxxx
____________________________
Xxxxx x'Xxxx
____________________________
Xxxxx X. Xxxxxxxxxx, Xx.
____________________________
Xxxxxxx X. Xxxxxxxx
____________________________
Xxxxxxxxx X. Xxxxxxxxx
____________________________
Xxxxxx X. Xxxxx
____________________________
Xxxxxxxx X. xxx Xxxxx
____________________________
Xxxxxxxxx X. Xxxxx
