EXHIBIT (a)
ING CLARION REAL ESTATE INCOME FUND
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
DATED AS OF AUGUST 22, 2003
TABLE OF CONTENTS
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ARTICLE I
The Trust
1.1 Name .................................................................. 1
1.2 Definitions .......................................................... 2
ARTICLE II
Trustees
2.1 Number and Qualification .............................................. 3
2.2 Term and Election ..................................................... 4
2.3 Resignation and Removal ............................................... 4
2.4 Vacancies ............................................................. 5
2.5 Meetings .............................................................. 5
2.6 Trustee Action by Written Consent ..................................... 6
2.7 Officers .............................................................. 6
ARTICLE III
Powers and Duties of Trustees
3.1 General ............................................................... 6
3.2 Investments ........................................................... 7
3.3 Legal Title ........................................................... 7
3.4 Issuance and Repurchase of Shares ..................................... 8
3.5 Borrow Money or Utilize Leverage ...................................... 8
3.6 Delegation; Committees ................................................ 8
3.7 Collection and Payment ................................................ 8
3.8 Expenses .............................................................. 9
3.9 By-Laws ............................................................... 9
3.10 Miscellaneous Powers .................................................. 9
3.11 Further Powers ........................................................ 10
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ARTICLE IV
Advisory, Management and Distribution Arrangements
4.1 Advisory and Management Arrangements .................................. 10
4.2 Distribution Arrangements ............................................. 11
4.3 Parties to Contract ................................................... 11
ARTICLE V
Limitations of Liability
and Indemnification
5.1 No Personal Liability of Shareholders, Trustees, etc. ................. 11
5.2 Mandatory Indemnification ............................................. 12
5.3 No Bond Required of Trustees .......................................... 14
5.4 No Duty of Investigation; Notice in Trust Instruments, etc. ........... 14
5.5 Reliance on Experts, etc. ............................................. 14
ARTICLE VI
Shares of Beneficial Interest
6.1 Beneficial Interest ................................................... 15
6.2 Other Securities ...................................................... 15
6.3 Rights of Shareholders ................................................ 15
6.4 Trust Only ............................................................ 15
6.5 Issuance of Shares .................................................... 16
6.6 Register of Shares .................................................... 16
6.7 Transfer Agent and Registrar .......................................... 16
6.8 Transfer of Shares .................................................... 17
6.9 Notices ............................................................... 17
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ARTICLE VII
Custodians
7.1 Appointment and Duties ................................................ 17
7.2 Central Certificate System ............................................ 18
ARTICLE VIII
Redemption
8.1 Redemptions ........................................................... 18
8.2 Disclosure of Holding ................................................. 19
ARTICLE IX
Determination of Net Asset Value
Net Income and Distributions
9.1 Net Asset Value ....................................................... 19
9.2 Distributions to Shareholders ......................................... 19
9.3 Power to Modify Foregoing Procedures .................................. 20
ARTICLE X
Shareholders
10.1 Meetings of Shareholders ............................................. 20
10.2 Voting ............................................................... 20
10.3 Notice of Meeting and Record Date .................................... 21
10.4 Quorum and Required Vote ............................................. 21
10.5 Proxies, etc. ........................................................ 22
10.6 Reports .............................................................. 22
10.7 Inspection of Records ................................................ 23
10.8 Shareholder Action by Written Consent ................................ 23
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ARTICLE XI
Duration; Termination of Trust;
Amendment; Mergers, Etc.
11.1 Duration .............................................................. 23
11.2 Termination ........................................................... 23
11.3 Amendment Procedure ................................................... 24
11.4 Merger, Consolidation and Sale of Assets .............................. 25
11.5 Subsidiaries .......................................................... 25
11.6 Conversion ............................................................ 26
11.7 Certain Transactions .................................................. 26
ARTICLE XII
Miscellaneous
12.1 Filing ................................................................ 28
12.2 Resident Agent ........................................................ 29
12.3 Governing Law ......................................................... 29
12.4 Counterparts .......................................................... 29
12.5 Reliance by Third Parties ............................................. 29
12.6 Provisions in Conflict with Law or Regulation ......................... 29
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ING CLARION REAL ESTATE INCOME FUND
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made
as of the 22nd day of August, 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 July 16, 2003, as amended on July 18, 2003, shall
constitute a statutory trust under the Delaware Statutory Trust Act and that
this Declaration shall constitute the governing instrument of such statutory
trust.
NOW, THEREFORE, the Trustees hereby declare that they will
hold all cash, securities, and other assets which they may from time to time
acquire in any manner as Trustees hereunder IN TRUST to manage and dispose of
the same upon the following terms and conditions for the benefit of the holders
from time to time of shares of beneficial interest in this Trust as hereinafter
set forth.
ARTICLE I
The Trust
1.1 Name. This Trust shall be known as the "ING Clarion Real
Estate Income Fund" and the Trustees shall conduct the business of the Trust
under that name or any other name or names as they may from time to time
determine.
1.2 Definitions. As used in this Declaration, the following
terms shall have the following meanings:
The "1940 Act" refers to the Investment Company Act of 1940
and the rules and regulations promulgated thereunder and exemptions granted
therefrom, as amended from time to time.
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 Agreement and Declaration of
Trust, as amended, supplemented or amended and restated from time to time.
"Delaware Statutory Trust Statute" shall mean the provisions
of the Delaware Statutory Trust Act, 12 Del. C. Section 3801, et. seq., as such
Act may be amended from time to time.
"Delaware General Corporation Law" means the Delaware General
Corporation Law, 8 Del. C. Section 100, et. seq., as amended from time to time.
"Fundamental Policies" shall mean the investment policies and
restrictions designated as fundamental in the Prospectus utilized by the Trust
in connection with its initial public offering as set forth from time to time as
they may be amended from time to time in accordance with the requirements of the
1940 Act.
"Majority Shareholder Vote" shall mean a vote of "a majority
of the outstanding voting securities" (as such term is defined in the ▇▇▇▇ ▇▇▇)
of the Trust with each class and series of Shares voting together as a single
class, except to the extent otherwise required by the 1940 Act or this
Declaration with respect to any one or more classes or series of Shares, in
which case the applicable proportion of such classes or series of Shares voting
as a separate class or series, as the case may be, also will be required.
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"Person" shall mean and include individuals, corporations,
partnerships, trusts, limited liability companies, associations, joint
ventures and other entities, whether or not legal entities, and governments and
agencies and political subdivisions thereof.
"Prospectus" shall mean the Prospectus (including any
Statement of Additional Information incorporated by reference therein) of the
Trust in the form filed with the Commission in connection with there being
declared effective a registration statement of the Trust under the Securities
Act of 1933, as amended.
"Shareholders" shall mean as of any particular time the
holders of record of outstanding Shares of the Trust, at such time.
"Shares" shall mean the transferable units of beneficial
interest into which the beneficial interest in the Trust shall be divided from
time to time and includes fractions of Shares as well as whole Shares. In
addition, Shares also means any preferred shares or preferred units of
beneficial interest which may be issued from time to time, as described herein.
All references to Shares shall be deemed to be Shares of any or all series or
classes as the context may require.
"Trust" shall mean the trust established by this Declaration,
as amended from time to time, inclusive of each such amendment.
"Trust Property" shall mean as of any particular time any and
all property, real or personal, tangible or intangible, which at such time is
owned or held by or for the account of the Trust or the Trustees in such
capacity.
"Trustees" shall mean the signatories to this Declaration, so
long as they shall continue in office in accordance with the terms hereof, and
all other persons who at the time in question have been duly elected or
appointed and have qualified as trustees in accordance with the provisions
hereof and are then in office.
ARTICLE II
Trustees
2.1 Number and Qualification. Prior to a public offering of
Shares there may be a sole Trustee. Thereafter, the number of Trustees shall be
determined by a written instrument signed by a majority of the Trustees then in
office, provided that the number of Trustees shall be no less than two or more
than such number as a majority of more than two-thirds of the Trustees then in
office shall determine. No
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reduction in the number of Trustees shall have the effect of removing any
Trustee from office prior to the expiration of his term. An individual nominated
as a Trustee shall be at least 21 years of age and not older than 80 years of
age at the time of nomination and not 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, designated Class I, Class II and Class III. Each class shall
consist, as nearly as may be possible, of one-third of the total number of
trustees constituting the entire Board of Trustees. The number of the Trustees
in each class shall be determined by the Board of Trustees. The 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 following the effective date of
the registration statement relating to the initial public offering of the Shares
under the Securities Act of 1933, as amended. The 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 following the effective date of such
registration statement. The 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 following the effective date of such registration statement. Upon
expiration of the term of office of each class as set forth above, the Trustees
in such class shall be elected for a term expiring on the date of the third
annual meeting of Shareholders or special meeting in lieu thereof following such
expiration. The Trustees shall be elected at an annual meeting of the
Shareholders or special meeting in lieu thereof called for that purpose, except
as provided in Section 2.3 of this Article and each Trustee elected shall hold
office until his or her successor shall have been elected and shall have
qualified. The term of office of a Trustee shall terminate and a vacancy shall
occur in the event of the death, resignation, removal, bankruptcy, adjudicated
incompetence or other incapacity to perform the duties of the office of such
Trustee.
2.3 Resignation and Removal. Any of the Trustees may resign
their trust (without need for prior or subsequent accounting) by an instrument
in writing signed by such Trustee and delivered or mailed to the Trustees or the
Chairman, if any, the President or the Secretary and such resignation shall be
effective upon such delivery, or at a later date according to the terms of the
instrument. Any of the Trustees may be removed (provided the aggregate number of
Trustees after such removal shall not be less than the minimum number required
by Section 2.1 hereof) for cause only, and not without cause, and only by action
taken by a majority of the remaining Trustees followed by the holders of at
least seventy-five percent (75%) of the Shares then entitled to vote in an
election of such Trustee or by a Delaware court of competent jurisdiction. Upon
the resignation or removal of a Trustee, each such resigning or removed Trustee
shall execute and deliver such documents as the remaining Trustees shall require
for the purpose of conveying to the Trust or the
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remaining Trustees any Trust Property held in the name of such resigning or
removed Trustee. Upon the death, bankruptcy, incompetence or other incapacity of
any Trustee, such Trustee or 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. 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 or may leave such
vacancy unfilled or may reduce the number of Trustees; provided the aggregate
number of Trustees after such reduction shall not be less than the minimum
number required by Section 2.1 hereof; provided, further, that if the
Shareholders of any class or series of Shares are entitled separately to elect
one or more Trustees, a majority of the remaining Trustees or the sole remaining
Trustee elected by that class or series may fill any vacancy among the number of
Trustees elected by that class or series. Any vacancy created by an increase in
Trustees may be filled by the appointment by the Trustees of an individual
having the qualifications described in this Article. No vacancy shall operate to
annul this Declaration or to revoke any existing agency created pursuant to the
terms of this Declaration. Whenever a vacancy in the number of Trustees shall
occur, until such vacancy is filled as provided herein, the Trustees in office,
regardless of their number, shall have all the powers granted to the Trustees
and shall discharge all the duties imposed upon the Trustees by this
Declaration.
2.5 Meetings. Meetings of the Trustees shall be held from time
to time upon the call of the Chairman, if any, or the President or any two
Trustees. Regular meetings of the Trustees may be held without call or notice at
a time and place fixed by the By-Laws or by resolution of the Trustees. Notice
of any other meeting shall be given by the Secretary and shall be delivered to
the Trustees orally not less than 24 hours, or in writing not less than 72
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 properly called or
convened. A quorum for all meetings of the Trustees shall be one- third, but not
less than two, of the Trustees in office. Unless provided otherwise in this
Declaration and except as required under the 1940 Act, any action of the
Trustees may be taken at a meeting by vote of a majority of the Trustees present
(a quorum being present).
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 one-third, but not less than two, of the members
thereof. Unless
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provided otherwise in this Declaration and except as required under the 1940
Act, 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).
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.
2.6 Trustee Action by Written Consent. Any action which may be
taken by Trustees by vote may be taken without a meeting if that number of the
Trustees, or members of a committee, as the case may be, that would be required
for approval of such action at a meeting of the Trustees or of such committee at
which all of the Trustees or members were present consent to the action in
writing and the written consents are filed with the records of the meetings of
Trustees. Such consent shall be treated for all purposes as a vote taken at a
meeting of Trustees or the relevant committee.
2.7 Officers. The Trustees shall elect a President, a
Secretary and a Treasurer and may elect a Chairman who shall serve at the
pleasure of the Trustees or until their successors are elected. The Trustees may
elect or appoint or may authorize the Chairman, if any, or President to
appoint such other officers or agents with such powers as the Trustees may deem
to be advisable. A Chairman shall, and the President, Secretary and Treasurer
may, but need not, be a Trustee.
ARTICLE III
Powers and Duties of Trustees
3.1 General. 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 Delaware General Corporation
Law. 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
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may be permitted by this Declaration. The Trustees may perform such acts as in
their sole discretion are proper for conducting the business of the Trust. The
enumeration of any specific power herein shall not be construed as limiting the
aforesaid power. Such powers of the Trustees may be exercised without order of
or resort to any court.
3.2 Investments. The Trustees shall have power, subject to the
Fundamental Policies in effect from time to time with respect to the Trust, 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, enter into, become obligated with respect to, hold,
pledge, sell, assign, transfer, exchange, lend, borrow, 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.
The right, title and interest of the Trustees in the Trust
Property shall vest automatically in each person who may hereafter become a
Trustee upon his due election and qualification. Upon the ceasing of any person
to be a Trustee for any reason, such person shall automatically cease to have
any right, title or interest in any of the Trust Property, and the right, title
and interest of such Trustee in the Trust Property shall vest automatically in
the remaining Trustees. Such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered.
3.4 Issuance and Repurchase of Shares. The Trustees shall have
the power to issue, sell, repurchase, redeem, retire, cancel, acquire, hold,
resell, reissue, dispose of, transfer, and otherwise deal in, Shares, including
Shares in fractional
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denominations, and, subject to the more detailed provisions set forth in
Articles VIII and IX, to apply to any such repurchase, redemption, retirement,
cancellation or acquisition of Shares any funds or property, whether capital or
surplus or otherwise, to the full extent now or hereafter permitted corporations
formed under the Delaware General Corporation Law.
3.5 Borrow Money or Utilize Leverage. Subject to the
Fundamental Policies in effect from time to time with respect to the Trust, the
Trustees shall have the power to borrow money or otherwise obtain credit or
utilize leverage to the maximum extent permitted by law or regulation as such
may be needed from time to time and to secure the same by mortgaging, pledging
or otherwise subjecting as security the assets of the Trust, and to endorse,
guarantee, or undertake the performance of any obligation, contract or
engagement of any other person, firm, association or corporation.
3.6 Delegation; Committees. The Trustees shall have the power,
consistent with their continuing exclusive authority over the management of the
Trust and the Trust Property, to delegate from time to time to such of their
number or to officers, employees or agents of the Trust the doing of such things
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, to at
least the same extent as such delegation is permitted to directors of
corporations formed under the Delaware General Corporation Law and is permitted
by the 1940 Act, as well as any further delegations the Trustees may determine
to be desirable, expedient or necessary in order to effect the purposes hereof.
The Trustees may designate one or more committees which shall have all or such
lesser portion of the authority of the entire Board of Trustees as the Trustees
shall determine from time to time except to the extent action by the entire
Board of Trustees or particular Trustees is required by the ▇▇▇▇ ▇▇▇.
3.7 Collection and Payment. The Trustees shall have power to
collect all property due to the Trust; to pay all claims, including taxes,
against the Trust Property or the Trust, the Trustees or any officer, employee
or agent of the Trust; to prosecute, defend, compromise or abandon any claims
relating to the Trust Property or the Trust, or the Trustees or any officer,
employee or agent of the Trust; to foreclose any security interest securing any
obligations, by virtue of which any property is owed to the Trust; and to enter
into releases, agreements and other instruments. Except to the extent required
for a corporation formed under the Delaware General Corporation Law, 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.
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3.8 Expenses. The Trustees shall have power to incur and pay
out of the assets or income of the Trust any expenses which in the opinion of
the Trustees are necessary or incidental to carry out any of the purposes of
this Declaration, and the business of the Trust, and to pay reasonable
compensation from the funds of the Trust to themselves as Trustees. The Trustees
shall fix the compensation of all officers, employees and Trustees. The Trustees
may pay themselves such compensation for special services, including legal,
underwriting, syndicating and brokerage services, as they in good faith may deem
reasonable and reimbursement for expenses reasonably incurred by themselves on
behalf of the Trust. The Trustees shall have the power, as frequently as they
may determine, to cause each Shareholder to pay directly, in advance or arrears,
for charges of distribution, of the custodian or transfer, Shareholder servicing
or similar agent, a pro rata amount as defined from time to time by the
Trustees, by setting off such charges due from such Shareholder from declared
but unpaid dividends or distributions owed such Shareholder and/or by reducing
the number of shares in the account of such Shareholder by that number of full
and/or fractional Shares which represents the outstanding amount of such charges
due from such Shareholder.
3.9 By-Laws. The Trustees shall have the exclusive authority
to adopt and from time to time amend or repeal By-Laws for the conduct of the
business of the Trust.
3.10 Miscellaneous Powers. The Trustees shall have the power
to: (a) employ or contract with such Persons as the Trustees may deem desirable
for the transaction of the business of the Trust; (b) enter into joint ventures,
partnerships and any other combinations or associations; (c) purchase, and pay
for out of Trust Property, insurance policies insuring the Shareholders,
Trustees, officers, employees, agents, investment advisors, distributors,
selected dealers or independent contractors of the Trust against all claims
arising by reason of holding any such position or by reason of any action taken
or omitted by any such Person in such capacity, whether or not constituting
negligence, or whether or not the Trust would have the power to indemnify such
Person against such liability; (d) establish pension, profit-sharing, share
purchase, and other retirement, incentive and benefit plans for any Trustees,
officers, employees and agents of the Trust; (e) make donations, irrespective of
benefit to the Trust, for charitable, religious, educational, scientific, civic
or similar purposes; (f) to the extent permitted by law, indemnify any Person
with whom the Trust has dealings, including without limitation any advisor,
administrator, manager, transfer agent, custodian, distributor or selected
dealer, or any other person as the Trustees may see fit to such extent as the
Trustees shall determine; (g) guarantee indebtedness or contractual obligations
of others; (h) determine and change the fiscal year of the Trust and the method
in which its accounts shall be kept; (i) notwithstand-
9
ing the Fundamental Policies of the Trust, convert the Trust to a master-feeder
structure; provided, however, the Trust obtains the approval of shareholders
holding at least a majority of the Trust's Shares present at a meeting of
Shareholders at which a quorum is present and (j) adopt a seal for the Trust but
the absence of such seal shall not impair the validity of any instrument
executed on behalf of the Trust.
3.11 Further Powers. The Trustees shall have the power to
conduct the business of the Trust and carry on its operations in any and all of
its branches and maintain offices both within and without the State of Delaware,
in any and all states of the United States of America, in the District of
Columbia, 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. The Trustees will not be required to obtain any court order to deal
with the Trust Property.
ARTICLE IV
Advisory, Management and Distribution Arrangements
4.1 Advisory and Management Arrangements. Subject to the
requirements of applicable law as in effect from time to time, the Trustees may
in their discretion from time to time enter into advisory, administration or
management contracts (including, in each case, one or more sub-advisory,
sub-administration or sub-management contracts) whereby the other party to any
such contract shall undertake to furnish the Trustees such advisory,
administrative and management services, with respect to the Trust as the
Trustees shall from time to time consider desirable and all upon such terms and
conditions as the Trustees may in their discretion determine. Notwithstanding
any provisions of this Declaration, the Trustees may authorize any advisor,
administrator or manager (subject to such general or specific instructions as
the Trustees may from time to time adopt) to effect investment transactions with
respect to the assets on behalf of the Trustees to the full extent of the power
of the Trustees to effect such transactions or may authorize any officer,
employee or Trustee to effect such transactions pursuant to recommendations of
any such advisor, administrator or manager (and all without further action by
the Trustees). Any such investment transaction shall be deemed to have been
authorized by all of the Trustees.
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4.2 Distribution Arrangements. Subject to compliance with the
1940 Act, the Trustees may retain underwriters and/or placement agents to sell
Trust Shares and debt instruments. The Trustees may in their discretion from
time to time enter into one or more contracts, providing for the sale of the
Shares and debt instruments of the Trust, whereby the Trust may either agree to
sell such Shares or debt instruments to the other party to the contract or
appoint such other party its sales agent for such Shares. In either case, the
contract shall be on such terms and conditions as the Trustees may in their
discretion determine not inconsistent with the provisions of this Article IV or
the By-Laws; and such contract may also provide for the repurchase or sale of
Shares or debt instruments of the Trust by such other party as principal or as
agent of the Trust and may provide that such other party may enter into selected
dealer agreements with registered securities dealers and brokers and servicing
and similar agreements with persons who are not registered securities dealers to
further the purposes of the distribution or repurchase of the Shares or debt
instruments of the Trust.
4.3 Parties to Contract. Any contract of the character
described in Sections 4.1 and 4.2 of this Article IV or in Article VII hereof
may be entered into with any Person, although one or more of the Trustees,
officers or employees of the Trust may be an officer, director, trustee,
shareholder, or member of such other party to the contract, and no such contract
shall be invalidated or rendered voidable by reason of the existence of any such
relationship, nor shall any Person holding such relationship be liable merely by
reason of such relationship for any loss or expense to the Trust under or by
reason of said contract or accountable for any profit realized directly or
indirectly therefrom, provided that the contract when entered into was
reasonable and fair and not inconsistent with the provisions of this Article IV
or the By-Laws. The same Person may be the other party to contracts entered into
pursuant to Sections 4.1 and 4.2 above or Article VII, and any individual may be
financially interested or otherwise affiliated with Persons who are parties to
any or all of the contracts mentioned in this Section 4.3.
ARTICLE V
Limitations of Liability
and Indemnification
5.1 No Personal Liability of Shareholders, Trustees, etc. No
Shareholder of the Trust shall be subject in such capacity to any personal
liability whatsoever to any Person in connection with Trust Property or the
acts, obligations or affairs of the Trust. Shareholders shall have the same
limitation of personal liability
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as is extended to stockholders of a private corporation for profit incorporated
under the Delaware General Corporation Law. No Trustee or officer of the Trust
shall be subject in such capacity to any personal liability whatsoever to any
Person, 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. Any repeal or modification
of this Section 5.1 shall not adversely affect any right or protection of a
Trustee or officer of the Trust existing at the time of such repeal or
modification with respect to acts or omissions occurring prior to such repeal or
modification.
5.2 Mandatory Indemnification. (a) The Trust hereby agrees to
indemnify each person who at any time serves as a Trustee or officer of the
Trust (each such person being an "indemnitee") against any liabilities and
expenses, including amounts paid in satisfaction of judgments, in compromise or
as fines and penalties, and reasonable counsel fees reasonably incurred by such
indemnitee in connection with the defense or disposition of any action, suit or
other proceeding, whether civil or criminal, before any court or administrative
or investigative body in which he may be or may have been involved as a party or
otherwise or with which he may be or may have been threatened, while acting in
any capacity set forth in this Article V by reason of his having acted in any
such capacity, except with respect to any matter as to which he shall not have
acted in good faith in the reasonable belief that his action was in the best
interest of the Trust or, in the case of any criminal proceeding, as to which he
shall have had reasonable cause to believe that the conduct was unlawful,
provided, however, that no indemnitee shall be indemnified hereunder against any
liability to any person or any expense of such indemnitee arising by reason of
(i) willful misfeasance, (ii) bad faith, (iii) gross negligence, or (iv)
reckless disregard of the duties involved in the conduct of his position (the
conduct referred to in such clauses (i) through (iv) being sometimes referred to
herein as "disabling conduct"). Notwithstanding the foregoing, with respect to
any action, suit or other proceeding voluntarily prosecuted by any indemnitee as
plaintiff, indemnification shall be mandatory only if the prosecution of such
action, suit or other proceeding by such indemnitee (1) was authorized by a
majority of the Trustees or (2) was instituted by the indemnitee to enforce his
or her rights to indemnification hereunder in a case in which the indemnitee is
found to be entitled to such indemnification. The rights to indemnification
set forth in this Declaration shall continue as to a person who has ceased to be
a Trustee or officer of the Trust and shall inure to the benefit of his or her
heirs, executors and personal and legal representatives. No amendment or
restatement of this Declaration or repeal of any of its provisions shall
12
limit or eliminate any of the benefits provided to any person who at any time is
or was a Trustee or officer of the Trust or otherwise entitled to
indemnification hereunder in respect of any act or omission that occurred
prior to such amendment, restatement or repeal.
(b) Notwithstanding the foregoing, no indemnification
shall be made hereunder unless there has been a determination (i) by a final
decision on the merits by a court or other body of competent jurisdiction before
whom the issue of entitlement to indemnification hereunder was brought that such
indemnitee is entitled to indemnification hereunder or, (ii) in the absence of
such a decision, by (1) a majority vote of a quorum of those Trustees who are
neither "interested persons" of the Trust (as defined in Section 2(a)(19) of the
▇▇▇▇ ▇▇▇) nor parties to the proceeding ("Disinterested Non-Party Trustees"),
that the indemnitee is entitled to indemnification hereunder, or (2) if such
quorum is not obtainable or even if obtainable, if such majority so directs,
independent legal counsel in a written opinion concludes that the indemnitee
should be entitled to indemnification hereunder. All determinations to make
advance payments in connection with the expense of defending any proceeding
shall be authorized and made in accordance with the immediately succeeding
paragraph (c) below.
(c) The Trust shall make advance payments in
connection with the expenses of defending any action with respect to which
indemnification might be sought hereunder if the Trust receives a written
affirmation by the indemnitee of the 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 the
indemnitee is entitled to such indemnification and if a majority of the Trustees
determine that the applicable standards of conduct necessary for indemnification
appear to have been met. In addition, at least one of the following conditions
must be met: (i) the indemnitee shall provide adequate security for his
undertaking, (ii) the Trust shall be insured against losses arising by reason of
any lawful advances, or (iii) a majority of a quorum of the Disinterested
Non-Party Trustees, or if a majority vote of such quorum so direct, independent
legal counsel in a written opinion, shall conclude, based on a review of readily
available facts (as opposed to a full trial-type inquiry), that there is
substantial reason to believe that the indemnitee ultimately will be found
entitled to indemnification.
(d) The rights accruing to any indemnitee under these
provisions shall not exclude any other right which any person may have or
hereafter acquire under this Declaration, the By-Laws of the Trust, any statute,
agreement, vote of stockholders or Trustees who are "disinterested persons" (as
defined in Section
13
2(a)(19) of the ▇▇▇▇ ▇▇▇) or any other right to which he or she may be lawfully
entitled.
(e) Subject to any limitations provided by the 1940
Act and this Declaration, the Trust shall have the power and authority to
indemnify and provide for the advance payment of expenses to employees, agents
and other Persons providing services to the Trust or serving in any capacity at
the request of the Trust to the full extent corporations organized under the
Delaware General Corporation Law may indemnify or provide for the advance
payment of expenses for such Persons, provided that such indemnification has
been approved by a majority of the Trustees.
5.3 No Bond Required of Trustees. No Trustee shall, as such,
be obligated to give any bond or other security for the performance of any of
his duties hereunder.
5.4 No Duty of Investigation; 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 tort liability, and such other insurance as the
Trustees in their sole judgment shall deem advisable or is required by the 1940
Act.
5.5 Reliance on Experts, etc. Each Trustee and officer or
employee of the Trust shall, in the performance of its duties, be fully and
completely justified and protected with regard to any act or any failure to act
resulting from reliance in good faith upon the books of account or other records
of the Trust, upon an opinion of counsel, or upon reports made to the Trust by
any of the 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 expert may also be a
Trustee.
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ARTICLE VI
Shares of Beneficial Interest
6.1 Beneficial Interest. The interest of the beneficiaries
hereunder shall be divided into an unlimited number of transferable shares of
beneficial interest, par value $.001 per share. All Shares issued in accordance
with the terms hereof, including, without limitation, Shares issued in
connection with a dividend in Shares or a split of Shares, shall be fully paid
and, except as provided in the last sentence of Section 3.8, nonassessable when
the consideration determined by the Trustees (if any) therefor shall have been
received by the Trust.
6.2 Securities. The Trustees may, subject to the Fundamental
Policies and the requirements of the 1940 Act, authorize and issue such other
securities of the Trust as they determine to be necessary, desirable or
appropriate, having such terms, rights, preferences, privileges, limitations and
restrictions as the Trustees see fit, including preferred interests, debt
securities or other senior securities. To the extent that the Trustees
authorize and issue preferred shares of any class or series, they are hereby
authorized and empowered to amend or supplement this Declaration as they deem
necessary or appropriate, including to comply with the requirements of the 1940
Act or requirements imposed by the rating agencies or other Persons, all without
the approval of Shareholders. Any such supplement or amendment shall be filed
as is necessary. The Trustees are also authorized to take such actions and
retain such persons as they see fit to offer and sell such securities.
6.3 Rights of Shareholders. The Shares shall be personal
property giving only the rights in this Declaration specifically set forth. The
ownership of the Trust Property of every description and the right to conduct
any business herein before described are vested exclusively in the Trustees, and
the Shareholders shall have no interest therein other than the beneficial
interest conferred by their Shares, and they shall have no right to call for any
partition or division of any property, profits, rights or interests of the Trust
nor can they be called upon to share or assume any losses of the Trust or,
subject to the right of the Trustees to charge certain expenses directly to
Shareholders, as provided in the last sentence of Section 3.8, suffer an
assessment of any kind by virtue of their ownership of Shares. The Shares shall
not entitle the holder to preference, preemptive, appraisal, conversion or
exchange rights (except as specified in this Section 6.3, in Section 11.4 or as
specified by the Trustees when creating the Shares, as in preferred shares).
6.4 Trust Only. It is the intention of the Trustees to create
only the relationship of Trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention of the Trustees to create
a general partner-
15
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.
6.5 Issuance of Shares. The Trustees, in their discretion, may
from time to time without vote of the Shareholders issue Shares including
preferred shares that may have been established pursuant to Section 6.2, in
addition to the then issued and outstanding Shares and Shares held in the
treasury, to such party or parties and for such amount and type of
consideration, including cash or property, at such time or times, and on such
terms as the Trustees may determine, and may in such manner acquire other assets
(including the acquisition of assets subject to, and in connection with the
assumption of, liabilities) and businesses. The Trustees may from time to time
divide or combine the Shares or any class or series thereof into a greater or
lesser number without thereby changing the proportionate beneficial interest in
such Shares. Issuances and redemptions of Shares may be made in whole Shares
and/or l/l,000ths of a Share or multiples thereof as the Trustees may determine.
6.6 Register of Shares. A register shall be kept at the
offices of the Trust or any transfer agent duly appointed by the Trustees under
the direction of the Trustees which shall contain the names and addresses of the
Shareholders and the number of Shares held by them respectively and a record of
all transfers thereof. Separate registers shall be established and maintained
for each class or series of Shares. Each such register shall be conclusive as to
who are the holders of the Shares of the applicable class or series of Shares
and who shall be entitled to receive dividends or distributions or otherwise to
exercise or enjoy the rights of Shareholders. No Shareholder shall be entitled
to receive payment of any dividend or distribution, nor to have notice given
to him as herein provided, until he has given his address to a transfer agent or
such other officer or agent of the Trustees as shall keep the register for entry
thereon. It is not contemplated that certificates will be issued for the Shares;
however, the Trustees, in their discretion, may authorize the issuance of share
certificates and promulgate appropriate fees therefore and rules and regulations
as to their use.
6.7 Transfer Agent and Registrar. The Trustees shall have
power to employ a transfer agent or transfer agents, and a registrar or
registrars, with respect to the Shares. The transfer agent or transfer agents
may keep the applicable register and record therein, the original issues and
transfers, if any, of the said Shares. Any such transfer agents and/or
registrars shall perform the duties usually performed by transfer agents and
registrars of certificates of stock in a corporation, as modified by the
Trustees.
16
6.8 Transfer of Shares. Shares shall be transferable on the
records of the Trust only by the record holder thereof or by its agent thereto
duly authorized in writing, upon delivery to the Trustees or a transfer agent of
the Trust of a duly executed instrument of transfer, together with such evidence
of the genuineness of each such execution and authorization and of other matters
as may reasonably be required. Upon such delivery the transfer shall be recorded
on the applicable register of the Trust. Until such record is made, the
Shareholder of record shall be deemed to be the holder of such Shares for all
purposes hereof and neither the Trustees nor any transfer agent or registrar nor
any officer, employee or agent of the Trust shall be affected by any notice of
the proposed transfer.
Any person becoming entitled to any Shares in consequence of
the death, bankruptcy, or incompetence of any Shareholder, or otherwise by
operation of law, shall be recorded on the applicable register of Shares as the
holder of such Shares upon production of the proper evidence thereof to the
Trustees or a transfer agent of the Trust, but until such record is made, the
Shareholder of record shall be deemed to be the holder of such for all purposes
hereof, and neither the Trustees nor any transfer agent or registrar nor any
officer or agent of the Trust shall be affected by any notice of such death,
bankruptcy or incompetence, or other operation of law.
6.9 Notices. Any and all notices to which any Shareholder
hereunder may be entitled and any and all communications shall be deemed duly
served or given if mailed, postage prepaid, addressed to any Shareholder of
record at his last known address as recorded on the applicable register of the
Trust.
ARTICLE VII
Custodians
7.1 Appointment and Duties. The Trustees shall at all times
employ a custodian or custodians, meeting the qualifications for custodians for
portfolio securities of investment companies contained in the 1940 Act, as
custodian with respect to the assets of the Trust. Any custodian shall have
authority as agent of the Trust with respect to which it is acting as determined
by the custodian agreement or agreements, but subject to such restrictions,
limitations and other requirements, if any, as may be contained in the By-Laws
of the Trust and the 1940 Act:
(1) to hold the securities owned by the Trust and deliver the
same upon written order;
17
(2) to receive any receipt for any moneys due to the Trust and
deposit the same in its own banking department (if a bank) or elsewhere
as the Trustees may direct;
(3) to disburse such funds upon orders or vouchers;
(4) if authorized by the Trustees, to keep the books and
accounts of the Trust and furnish clerical and accounting services; and
(5) if authorized to do so by the Trustees, to compute the net
income or net asset value of the Trust;
all upon such basis of compensation as may be agreed upon between the Trustees
and the custodian.
The Trustees may also authorize each custodian to employ one
or more sub-custodians from time to time to perform such of the acts and
services of the custodian and upon such terms and conditions, as may be agreed
upon between the custodian and such sub-custodian and approved by the Trustees,
provided that in every case such sub-custodian shall meet the qualifications for
custodians contained in the 1940 Act.
7.2 Central Certificate System. Subject to such rules,
regulations and orders as the Commission may adopt, the Trustees may direct the
custodian to deposit all or any part of the securities owned by the Trust in a
system for the central handling of securities established by a national
securities exchange or a national securities association registered with the
Commission under the Securities Exchange Act of 1934, or such other Person as
may be permitted by the Commission, or otherwise in accordance with the 1940
Act, pursuant to which system all securities of any particular class of any
issuer deposited within the system are treated as fungible and may be
transferred or pledged by bookkeeping entry without physical delivery of such
securities, provided that all such deposits shall be subject to withdrawal only
upon the order of the Trust.
ARTICLE VIII
Redemption
8.1 Redemptions. The Shares of the Trust are not redeemable by
the holders except that the terms of any preferred shares may provide that they
are redeemable by the holders to the extent provided therein.
18
8.2 Disclosure of Holding. The holders of Shares or other
securities of the Trust shall upon demand disclose to the Trustees in writing
such information with respect to direct and indirect ownership of Shares or
other securities of the Trust as the Trustees deem necessary to comply with the
provisions of the Code, the 1940 or other applicable laws or regulations, or to
comply with the requirements of any other taxing or regulatory authority.
ARTICLE IX
Determination of Net Asset Value
Net Income and Distributions
9.1 Net Asset Value. The net asset value of each outstanding
Share of the Trust shall be determined at such time or times on such days as the
Trustees may determine, in accordance with the 1940 Act. The method of
determination of net asset value shall be determined by the Trustees and shall
be as set forth in the Prospectus or as may otherwise be determined by the
Trustees. The power and duty to make the net asset value calculations may be
delegated by the Trustees and shall be as generally set forth in the Prospectus
or as may otherwise be determined by the Trustees.
9.2 Distributions to Shareholders. (a) The Trustees shall from
time to time distribute ratably among the Shareholders of any class of Shares,
or any series of any such class, in accordance with the number of outstanding
full and fractional Shares of such class or any series of such class, such
proportion of the net profits, surplus (including paid-in surplus), capital, or
assets held by the Trustees as they may deem proper or as may otherwise be
determined in accordance with this Declaration. Any such distribution may be
made in cash or property (including without limitation any type of obligations
of the Trust or any assets thereof) or Shares of any class or series or any
combination thereof, and the Trustees may distribute ratably among the
Shareholders of any class of shares or series of any such class, in accordance
with the number of outstanding full and fractional Shares of such class or any
series of such class, additional Shares of any class or series in such manner,
at such times, and on such terms as the Trustees may deem proper or as may
otherwise be determined in accordance with this Declaration.
(b) Distributions pursuant to this Section 9.2 may be
among the Shareholders of record of the applicable class or series of Shares at
the time of declaring a distribution or among the Shareholders of record at such
later date as the Trustees shall determine and specify.
19
(c) The Trustees may always retain from the net
profits such amount as they may deem necessary to pay the debts or expenses of
the Trust or to meet obligations of the Trust, or as they otherwise may deem
desirable to use in the conduct of its affairs or to retain for future
requirements or extensions of the business.
(d) Inasmuch as the computation of net income and
gains for Federal income tax purposes may vary from the computation thereof on
the books, the above provisions shall be interpreted to give the Trustees the
power in their discretion to distribute for any fiscal year as ordinary
dividends and as capital gains distributions, respectively, additional amounts
sufficient to enable the Trust to avoid or reduce liability for taxes.
9.3 Power to Modify Foregoing Procedures. Notwithstanding any
of the foregoing provisions of this Article IX, the Trustees may prescribe, in
their absolute discretion except as may be required by the 1940 Act, such other
bases and times for determining the per share asset value of the Trust's Shares
or net income, or the declaration and payment of dividends and distributions as
they may deem necessary or desirable for any reason, including to enable the
Trust to comply with any provision of the 1940 Act, or any securities exchange
or association registered under the Securities Exchange Act of 1934, or any
order of exemption issued by the Commission, all as in effect now or hereafter
amended or modified.
ARTICLE X
Shareholders
10.1 Meetings of Shareholders. The Trust shall hold annual
meetings of the Shareholders (provided that the Trust's initial annual meeting
of Shareholders may occur up to one year after the completion of its initial
fiscal year). A special meeting of Shareholders may be called at any time by a
majority of the Trustees or the President and shall be called by any Trustee for
any proper purpose upon written request of Shareholders of the Trust holding in
the aggregate not less than 51% of the outstanding Shares of the Trust or class
or series of Shares having voting rights on the matter, such request specifying
the purpose or purposes for which such meeting is to be called. Any shareholder
meeting, including a special meeting, shall be held within or without the State
of Delaware on such day and at such time as the Trustees shall designate.
20
10.2 Voting. Shareholders shall have no power to vote on any
matter except matters on which a vote of Shareholders is required by applicable
law, this Declaration or resolution of the Trustees. Except as otherwise
provided herein, any matter required to be submitted to Shareholders and
affecting one or more classes or series of Shares shall require approval by the
required vote of all the affected classes and series of Shares voting together
as a single class; provided, however, that as to any matter with respect to
which a separate vote of any class or series of Shares is required by the 1940
Act, such requirement as to a separate vote by that class or series of Shares
shall apply in addition to a vote of all the affected classes and series voting
together as a single class. Shareholders of a particular class or series of
Shares shall not be entitled to vote on any matter that affects only one or more
other classes or series of Shares. There shall be no cumulative voting in the
election or removal of Trustees.
10.3 Notice of Meeting and Record Date. Notice of all meetings
of Shareholders, stating the time, place and purposes of the meeting, shall be
given by the Trustees by mail to each Shareholder of record entitled to vote
thereat at its registered address, mailed at least 10 days and not more than 90
days before the meeting or otherwise in compliance with applicable law. Only the
business stated in the notice of the meeting shall be considered at such
meeting. Any adjourned meeting may be held as adjourned one or more times
without further notice not later than 120 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 90 nor less than 10 days prior to the date of such meeting of
Shareholders as a record date for the determination of the Persons to be treated
as Shareholders of record for such purposes.
10.4 Quorum and Required Vote. (a) The holders of a majority
of the Shares entitled to vote on any matter at a meeting present in person or
by proxy shall constitute a quorum at such meeting of the Shareholders for
purposes of conducting business on such matter. The absence from any meeting, in
person or by proxy, of a quorum of Shareholders for action upon any given matter
shall not prevent action at such meeting upon any other matter or matters which
may properly come before the meeting, if there shall be present thereat, in
person or by proxy, a quorum of Shareholders in respect of such other matters.
(b) Subject to any provision of applicable law, this
Declaration or, to the extent not in conflict with a specific provision of this
Declaration other than this Section 10.4, a resolution of the Trustees
specifying a greater or a lesser vote requirement for the transaction of any
item of business at any meeting of Shareholders, (i) the affirmative vote of a
majority of the Shares present in person or represented by proxy and entitled to
vote on the subject matter and voting or abstain-
21
ing on such matter shall be the act of the Shareholders with respect to such
matter, and (ii) where a separate vote of one or more classes or series of
Shares is required on any matter, the affirmative vote of a majority of the
Shares of such class or series of Shares present in person or represented by
proxy at the meeting shall be the act of the Shareholders of such class or
series with respect to such matter. The Trustees are expressly authorized to
adopt by-laws requiring the affirmative vote of a majority of the outstanding
Shares to elect a Trustee; provided, however, that in the absence of such by-law
Trustees shall be elected by plurality vote.
10.5 Voting Rights, Proxies, etc. Only Shareholders of record
shall be entitled to vote. Each full Share shall be entitled to one vote and
fractional Shares shall be entitled to a vote of such fraction. At any meeting
of Shareholders, any holder of Shares entitled to vote thereat may vote by
properly authorized 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. The Trustees may authorize
the granting of proxies by any means they deem reasonable, including by
internet, telephone or other methods. Pursuant to a resolution of a majority
of the Trustees, proxies may be solicited in the name of one or more Trustees or
one or more of the officers or employees of the Trust. No proxy shall be valid
after the expiration of 11 months from the date thereof, unless otherwise
provided in the proxy. 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 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.
10.6 Reports. The Trustees shall cause to be prepared at least
annually and more frequently to the extent and in the form approved by the
Trustees or required by law, regulation or any exchange on which Shares are
listed a report of the Trust's operations.
10.7 Inspection of Records. The records of the Trust shall be
open to inspection by Shareholders to the same extent as is permitted
shareholders of a corporation formed under the Delaware General Corporation Law.
22
10.8 Shareholder Action by Written Consent. Any action which
may be taken by Shareholders by vote may be taken without a meeting if all of
the holders of Shares 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 XI
Duration; Termination of Trust;
Amendment; Mergers, Etc.
11.1 Duration. Subject to possible termination in accordance
with the provisions of Section 11.2 hereof, the Trust created hereby shall have
perpetual existence.
11.2 Termination. (a) The Trust may be dissolved, after a
majority of the Trustees in office have approved a resolution therefor, upon
approval by not less than 75% of the Shares of each class or series outstanding
and entitled to vote, voting as separate classes or series. Upon the dissolution
of the Trust:
(i) The Trust shall carry on no business
except for the purpose of winding up its affairs.
(ii) The Trustees shall proceed to wind up
the affairs of the Trust and all of the powers of the Trustees under
this Declaration shall continue until the affairs of the Trust shall
have been wound up, including the power to fulfill or discharge the
contracts of the Trust, collect its assets, sell, convey, assign,
exchange, merge where the Trust is not the survivor, transfer or
otherwise dispose of all or any part of the remaining Trust Property to
one or more Persons at public or private sale for consideration which
may consist in whole or in part in cash, securities or other property
of any kind, discharge or pay its liabilities, and do all other acts
appropriate to liquidate its business; provided that any sale,
conveyance, assignment, exchange, merger in which the Trust is not the
survivor, transfer or other disposition of all or substantially all
the Trust Property of the Trust shall require approval of the principal
terms of the transaction and the nature and amount of the consideration
by Shareholders with the same vote as required to open-end the Trust.
23
(iii) After paying or adequately providing
for the payment of all liabilities, and upon receipt of such releases,
indemnities and refunding agreements, as they deem necessary for
their protection, the Trustees may distribute the remaining Trust
Property, in cash or in kind or partly each, among the Shareholders
according to their respective rights.
(b) After the winding up and termination of the Trust
and distribution to the Shareholders as herein provided, a majority of the
Trustees shall execute and lodge among the records of the Trust an instrument in
writing setting forth the fact of such termination and shall execute and file a
certificate of cancellation with the Secretary of State of the State of
Delaware. Upon termination of the Trust, the Trustees shall thereupon be
discharged from all further liabilities and duties hereunder, and the rights and
interests of all Shareholders shall thereupon cease.
11.3 Amendment Procedure. (a) Except as provided in this
Section 11.3, this Declaration may be amended, after a majority of the Trustees
in office have approved a resolution therefor, upon approval by a Majority
Shareholder Vote. The Trustees also may amend this Declaration without any vote
of Shareholders of any class of series to divide the Shares of the Trust into
one or more classes or additional classes, or one or more series of any such
class or classes, to determine the terms of any class or series of Shares, to
change the name of the Trust or any class or series of Shares, to make any
change that does not adversely affect the relative rights or preferences of any
Shareholder, to make any further amendments to the terms of any class or series
of Shares authorized by such terms to be made by the Trustees without
Shareholder approval, as they may deem necessary, or to conform this Declaration
to the requirements of the 1940 Act or any other applicable federal laws or
regulations including pursuant to Section 6.2 or the requirements of the
regulated investment company provisions of the Code, but the Trustees shall not
be liable for failing to do so.
(b) No amendment may be made to Section 2.1, Section
2.2, Section 2.3, Section 3.9, Section 5.1, Section 5.2, Section 11.2(a), this
Section 11.3, Section 11.4, Section 11.6 or Section 11.7 of this Declaration and
no amendment may be made to this Declaration which would change any rights with
respect to any Shares of the Trust by reducing the amount payable thereon upon
liquidation of the Trust or by diminishing or eliminating any voting rights
pertaining thereto (except that this provision shall not limit the ability of
the Trustees to authorize, and to cause the Trust to issue, securities pursuant
to Section 6.2), except after a majority of the Trustees have approved a
resolution therefor, by the affirmative vote of the holders of not less than
seventy-five percent (75%) of the Shares of each affected class or
24
series outstanding, voting as separate classes or series. 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, the Shareholders as aforesaid, shall
become effective at the time of such adoption or at such other time as may be
designated by the Board of Trustees or Shareholders, as the case may be. A
certification in recordable form signed by a majority of the Trustees setting
forth an amendment and reciting that it was duly adopted by the Trustees and, if
required, the Shareholders as aforesaid, or a copy of the Declaration, as
amended, in recordable form, and executed by a majority of the Trustees, shall
be conclusive evidence of such amendment when lodged among the records of the
Trust or at such other time designated by the Board.
Notwithstanding any other provision hereof, until such time as
a Registration Statement under the Securities Act of 1933, as amended, covering
the first public offering of Shares of the Trust shall have become effective,
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.
11.4 Merger, Consolidation and Sale of Assets. Except as
provided in Section 11.7, the Trust or any subsidiary having a net asset value
in excess of 25% of the net asset value of the Trust may merge or consolidate
with any other corporation, association, trust or other organization or may
sell, lease or exchange all or substantially all of the Trust Property or the
property, including its good will, upon such terms and conditions and for such
consideration when and as authorized by a favorable vote of a majority of the
Trustees then in office followed by the favorable vote of the holders of not
less than seventy-five percent (75%) of the Shares; provided, however, that if
such other corporation, association, trust or other organization shall have
provisions in its governing documents substantially equivalent to Section 10.4
and Sections 11.1, 11.2, 11.3, this Section 11.4, 11.6 and 11.7 of this Declara-
tion, such Shareholder approval shall be by a Majority Shareholder Vote and any
such merger, consolidation, sale, lease or exchange shall be determined for all
purposes to have been accomplished under and pursuant to the statutes of the
State of Delaware.
11.5 Subsidiaries. Without approval by Shareholders, the
Trustees may cause to be organized or assist in organizing one or more
corporations, trusts, partnerships, associations or other organizations to take
over any portion of the Trust Property or to carry on any business in which the
Trust shall directly or indirectly have any interest, and to sell, convey and
transfer all or a portion of the Trust
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Property to any such corporation, trust, limited liability company, association
or organization in exchange for the shares or securities thereof, or otherwise,
and to lend money to, subscribe for the shares or securities of, and enter into
any contracts with any such corporation, trust, limited liability company,
partnership, association or organization, or any corporation, partnership,
trust, limited liability company, association or organization in which the Trust
holds or is about to acquire shares or any other interests.
11.6 Conversion. Notwithstanding any other provisions of this
Declaration or the By-Laws of the Trust, a favorable vote of a majority of the
Trustees then in office followed by the favorable vote of the holders of not
less than seventy-five percent (75%) of the Shares of each affected class or
series outstanding, voting as separate classes or series, shall be required to
approve, adopt or authorize an amendment to this Declaration that makes such
class or series of Shares a "redeemable security" as that term is defined in
the 1940 Act. Upon the adoption of a proposal to convert the Trust from a
"closed-end company" to an "open-end company" as those terms are defined by
the 1940 Act and the necessary amendments to this Declaration to permit such a
conversion of the 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. Such affirmative vote or consent shall be in
addition to the vote or consent of the holders of the Shares otherwise required
by law, or any agreement between the Trust and any national securities exchange.
11.7 Certain Transactions. (a) Notwithstanding any other
provision of this Declaration and subject to the exceptions provided in
paragraph (d) of this Section, the types of transactions described in paragraph
(c) of this Section shall require the affirmative vote or consent of a majority
of the Trustees then in office followed by the affirmative vote of the holders
of not less than seventy-five percent (75%) of the Shares of each affected class
or series outstanding, voting as separate classes or series, when a Principal
Shareholder (as defined in paragraph (b) of this Section) is a party to the
transaction. Such affirmative vote or consent shall be in addition to the vote
or consent of the holders of Shares otherwise required by law or by the terms of
any class or series of preferred stock, whether now or hereafter authorized, or
any agreement between the Trust and any national securities exchange.
(b) The term "Principal Shareholder" shall mean any
corporation, Person or other entity which is the beneficial owner, directly or
indirectly, of five percent (5%) or more of the outstanding Shares of any
outstanding class or series and shall include any affiliate or associate, as
such terms are defined in clause (ii) below, of a Principal Shareholder, and any
affiliated person, as such term is defined in Section 2(a)(3)(i)-(iii) of the
1940 Act, of such Principal Shareholder. For the
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purposes of this Section, in addition to the Shares which a corporation, Person
or other entity beneficially owns directly, (a) any corporation, Person or other
entity shall be deemed to be the beneficial owner of any Shares (i) which it has
the right to acquire pursuant to any agreement or upon exercise of conversion
rights or warrants, or otherwise (but excluding share options granted by the
Trust) or (ii) which are beneficially owned, directly or indirectly (including
Shares deemed owned through application of clause (i) above), by any other
corporation, Person or entity with which such corporation, Person or other
entity or any "affiliate" or "associate" (as defined below) thereof has any
agreement, arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of Shares, or which is an "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 of such corporation, Person or other entity,
and (b) the outstanding Shares shall include Shares deemed owned through
application of clauses (i) and (ii) above but shall not include any other Shares
which may be issuable pursuant to any agreement, or upon exercise of conversion
rights or warrants, or otherwise.
(c) This Section shall apply to the following
transactions:
(i) The merger or consolidation of the Trust
or any subsidiary of the Trust with or into any Principal Shareholder.
(ii) The issuance of any securities of the
Trust to any Principal Shareholder for cash (other than pursuant to any
automatic dividend reinvestment plan) unless immediately after giving
effect to such issuance, such Principal Shareholder beneficially owns
less than 15% of the total voting power of the Shares.
(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% of the total assets of the Trust, aggregating for the
purpose of such computation all assets sold, leased or exchanged in any
series of similar transactions within a twelve-month period.)
(iv) The sale, lease or exchange to the
Trust or any subsidiary thereof, in exchange for securities of the
Trust, of any assets of any Principal Shareholder (except assets having
an aggregate fair market value of less than 5% of the total assets of
the Trust, aggregating for the purposes of such computation all assets
sold, leased or exchanged in any series of similar transactions within
a twelve-month period).
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(d) The provisions of this Section shall not be
applicable to (i) any of the transactions described in paragraph (c) of this
Section if 80% of the Trustees shall by resolution have approved a memorandum of
understanding with such Principal Shareholder with respect to and substantially
consistent with such transaction, in which case approval by a Majority
Shareholder Vote shall be the only vote of Shareholders required by this
Section, or (ii) any such transaction with any entity of which a majority of the
outstanding shares of all classes and series of a stock normally entitled to
vote in elections of directors is owned of record or beneficially by the Trust
and its subsidiaries.
(e) The Board of Trustees shall have the power and
duty to determine for the purposes of this Section on the basis of information
known to the Trust whether (i) a corporation, person or entity beneficially owns
five percent (5%) or more of the outstanding Shares of any class or series, (ii)
a corporation, person or entity is an "affiliate," "associate" or "affiliated
person" (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%,
and (iv) the memorandum of understanding referred to in paragraph (d) hereof is
substantially consistent with the transaction covered thereby. Any such
determination shall be conclusive and binding for all purposes of this Section.
ARTICLE XII
Miscellaneous
12.1 Filing. (a) This Declaration and any amendment or
supplement hereto shall be filed in such places as may be required or as the
Trustees deem appropriate. Each amendment or supplement shall be accompanied by
a certificate signed and acknowledged by a Trustee or the President 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
and all amendments and supplements theretofore made, may be executed from time
to time by a majority of the Trustees in office and shall, upon insertion in the
Trust's minute book, be conclusive evidence of all amendments and supplements
contained therein and may thereafter be referred to in lieu of the original
Declaration and the various amendments and supplements thereto.
(b) The Trustees hereby authorize and direct a
Certificate of Trust, in the form attached hereto as Exhibit A, to be executed
and filed with the
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Office of the Secretary of State of the State of Delaware in accordance with the
Delaware Statutory Trust Act.
12.2 Resident Agent. The Trust shall maintain a resident agent
in the State of Delaware, which agent shall initially be The Corporation Trust
Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ The Trustees may
designate a successor resident agent, provided, however, that such appointment
shall not become effective until written notice thereof is delivered to the
office of the Secretary of the State.
12.3 Governing Law. This Declaration is executed by the
Trustees and delivered in the State of Delaware and with reference to the laws
thereof, and the rights of all parties and the validity and construction of
every provision hereof shall be subject to and construed according to laws of
said State and reference shall be specifically made to the Delaware General
Corporation Law 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.
12.4 Counterparts. This Declaration may be simultaneously
executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts, together, shall constitute one and the same
instrument, which shall be sufficiently evidenced by any such original
counterpart.
12.5 Reliance by Third Parties. Any certificate executed by an
individual who, according to the records of the Trust, or of any recording
office in which this Declaration may be recorded, appears to be a Trustee
hereunder, certifying to: (a) the number or identity of Trustees or
Shareholders, (b) the name of the Trust, (c) the due authorization of the
execution of any instrument or writing, (d) the form of any vote passed at a
meeting of Trustees or Shareholders, (e) the fact that the number of Trustees or
Shareholders present at any meeting or executing any written instrument
satisfies the requirements of this Declaration, (f) the form of any By Laws
adopted by or the identity of any officers elected by the Trustees, or (g) the
existence of any fact or facts which in any manner relate to the affairs of the
Trust, shall be conclusive evidence as to the matters so certified in favor of
any person dealing with the Trustees and their successors.
12.6 Provisions in Conflict with Law or Regulation. (a) The
provisions of this Declaration are severable, and if the Trustees shall
determine, with the advice of counsel, that any of such provisions is in
conflict with the 1940 Act, the regulated investment company provisions of the
Internal Revenue Code or with other applicable laws and regulations, the
conflicting provision shall be deemed never to
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have constituted a part of this Declaration; 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.
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IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
/s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Trustee
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trustee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Trustee
/s/ Asuka Nakahara
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Asuka Nakahara
Trustee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trustee
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