THE GABELLI DIVIDEND & INCOME TRUST
____________________________________________
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
____________________________________________
November 25, 2003
TABLE OF CONTENTS
ARTICLE I
The Trust
1.1 Name....................................................................3
1.2 Definitions.............................................................3
ARTICLE II
Trustees
2.1 Number and Qualification................................................5
2.2 Term and Election.......................................................5
2.3 Resignation and Removal.................................................6
2.4 Vacancies...............................................................6
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.............................................................9
3.4 Issuance and Repurchase of Shares.......................................9
3.5 Borrow Money or Utilize Leverage........................................9
3.6 Collection and Payment.................................................10
3.7 Expenses...............................................................10
3.8 By-Laws................................................................10
3.9 Miscellaneous Powers...................................................11
3.10 Delegation; Committees................................................11
3.11 Further Powers........................................................11
ARTICLE IV
Limitations of Liability
and Indemnification
4.1 No Personal Liability of Shareholders, Trustees, etc...................12
4.2 Mandatory Indemnification..............................................12
4.3 No Duty of Investigation; Notice in Trust Instruments, etc.............14
4.4 Reliance on Experts, etc...............................................14
ARTICLE V
Shares of Beneficial Interest
5.1 Beneficial Interest....................................................15
5.2 Classes and Series.....................................................15
5.3 Issuance of Shares.....................................................16
5.4 Rights of Shareholders.................................................16
5.5 Trust Only.............................................................16
5.6 Register of Shares.....................................................17
5.7 Transfer Agent and Registrar...........................................17
5.8 Transfer of Shares.....................................................17
5.9 Notices................................................................18
5.10 Net Asset Value.......................................................18
5.11 Distributions to Shareholders.........................................18
ARTICLE VI
Shareholders
6.1 Meetings of Shareholders...............................................19
6.2 Voting.................................................................19
6.3 Notice of Meeting, Shareholder Proposals and Record Date...............20
6.4 Quorum and Required Vote...............................................20
6.5 Proxies, etc...........................................................21
6.6 Reports................................................................22
6.7 Inspection of Records..................................................22
6.8 Shareholder Action by Written Consent..................................22
ARTICLE VII
Duration: Termination of Trust;
Amendment; Mergers, Etc.
7.1 Duration...............................................................22
7.2 Termination............................................................22
7.3 Amendment Procedure....................................................23
7.4 Merger, Consolidation and Sale of Assets...............................24
7.5 Redemption; Conversion.................................................25
7.6 Certain Transactions...................................................25
ARTICLE VIII
Miscellaneous
8.1 Filing.................................................................27
8.2 Resident Agent.........................................................28
8.3 Governing Law..........................................................28
8.4 Counterparts...........................................................28
8.5 Reliance by Third Parties..............................................28
8.6 Provisions in Conflict with Law or Regulation..........................29
THE GABELLI DIVIDEND & INCOME TRUST
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made as of the 23rd day of
October, 2003, by the Trustees hereunder, and by the holders of shares of
beneficial interest issued hereunder as hereinafter provided.
WHEREAS, this Trust has been formed to carry on business as
set forth more particularly hereinafter;
WHEREAS, this Trust is authorized to issue an unlimited number
of its shares of beneficial interest all in accordance with the provisions
hereinafter set forth;
WHEREAS, the Trustees have agreed to manage all property
coming into their hands as Trustees of a Delaware statutory trust in accordance
with the provisions hereinafter set forth; and
WHEREAS, the parties hereto intend that the Trust created by
this Declaration 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",
"Inter ested 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 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
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, specify ing 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 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 object ing
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 commu nications 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 Trust ees, 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 compensa tion 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, administra tors, 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, partner ships 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 invest ment
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 execu tion 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
Share holder of the Trust shall be subject in such capacity to any personal
liability whatso ever 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 misfea sance, (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 indemnifica tion 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 indemnifica tion.
(d) The rights accruing to any indemnitee under
these provi sions 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 concern ing 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 reclassifica tion of any
issued and outstanding Shares and no modifications of any of the designa
tions, powers, preferences, voting, conversion or other rights, limitations,
qualifica tions 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 consider ation, 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 partner ship, 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 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.
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 Com mon 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 determina tion 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 combina
tion 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 Share holders
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 cumula tive 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 to each
Shareholder of record entitled to vote thereat at its registered address,
mailed 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.
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 Share holders at
which such matter is to be considered.
(b) Subject to any provision of the 1940 Act or
this Declara tion 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 verifica tion 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 prefer ence 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
provi sions 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 disposi tion 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, in demnities 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 cancella tion 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 outstand ing 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 outstand ing 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 acquir ing, 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 Share holder 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 computa tion 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 under standing or agreement with such
Principal Shareholder with respect to and substan tially 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.
By: /s/ Xxxxx X. Xxxxxx
_______________________
Xxxxx X. Xxxxxx
President
469735.04-New York S4A
28
