Portions of the Amended and Restated Agreement and Declaration of Trust and By- laws of the Registrant defining the Rights of Holders of Common Shares of the Registrant ING CLARION GLOBAL REAL ESTATE INCOME FUND AMENDED AND RESTATED AGREEMENT AND...
Exhibit
5(a)
Portions
of the Amended and Restated Agreement and Declaration of Trust and By-laws of
the Registrant defining the Rights of Holders of Common Shares of the
Registrant
AMENDED
AND RESTATED
"Code"
shall mean the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
ARTICLE
II
Trustees
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 for cause only, and
not without cause, and only by action taken by a majority of the remaining
Trustees then in office 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 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.
ARTICLE
VI
Shares
of Beneficial Interest
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
1
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 partnership, limited partnership, joint stock
association, corporation, bailment or any form of legal relationship other than
a trust. Nothing in this Declaration shall be construed to make the
Shareholders, either by themselves or with the Trustees, partners or members of
a joint stock association.
6.5 Issuance
of Shares. The Trustees, in their discretion, may from time to time
without vote of the Shareholders issue Shares including preferred shares that
may have been established pursuant to Section 6.2, in addition to the then
issued and outstanding Shares and Shares held in the treasury, to such party or
parties and for such amount and type of consideration, including cash or
property, at such time or times, and on such terms as the Trustees may
determine, and may in such manner acquire other assets (including the
acquisition of assets subject to, and in connection with the assumption of,
liabilities) and businesses. The Trustees may from time to time
divide or combine the Shares 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.
6.8 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.
2
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 or if delivered in any other
manner permitted by applicable law or the Shareholder.
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.
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 Act 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
9.2 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.
3
(b) Distributions
pursuant to this Section 9.2 may be among the Shareholders of record of the
applicable class or series of Shares at the time of declaring a distribution or
among the Shareholders of record at such later date as the Trustees shall
determine and specify.
(c) The
Trustees may always retain from the net profits such amount as they may deem
necessary to pay the debts or expenses of the Trust or to meet obligations of
the Trust, or as they otherwise may deem desirable to use in the conduct of its
affairs or to retain for future requirements or extensions of the
business.
(d) Inasmuch
as the computation of net income and gains for Federal income tax purposes may
vary from the computation thereof on the books, the above provisions shall be
interpreted to give the Trustees the power in their discretion to distribute for
any fiscal year as ordinary dividends and as capital gains distributions,
respectively, additional amounts sufficient to enable the Trust to avoid or
reduce liability for taxes.
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.
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
4
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 abstaining 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.
5
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.
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 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
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.
6
(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 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
7
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 Declaration, 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 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.
8
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 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
9
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).
(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.
10
AMENDED
AND RESTATED BY-LAWS
ARTICLE
I
Shareholder
Meetings
1.1 Chairman. The
Chairman, if any, shall act as chairman at all meetings of the Shareholders; in
the Chairman's absence, the Trustee or Trustees present at each meeting may
elect a temporary chairman for the meeting, who may be one of
themselves.
1.2 Proxies;
Voting. Shareholders may vote either in person or by duly executed
proxy and each full share represented at the meeting shall have one vote, all as
provided in Article 10 of the Declaration.
1.3 Fixing
Record Dates. For the purpose of determining the Shareholders who are
entitled to notice of or to vote or act at any meeting, including any
adjournment thereof, or who are entitled to participate in any dividends, or for
any other proper purpose, the Trustees may from time to time, without closing
the transfer books, fix a record date in the manner provided in Section 10.3 of
the Declaration. If the Trustees do not prior to any meeting of
Shareholders so fix a record date or close the transfer books, then the date of
mailing notice of the meeting or the date upon which the dividend resolution is
adopted, as the case may be, shall be the record date.
1.4 Inspectors
of Election. In advance of any meeting of Shareholders, the Trustees
may appoint Inspectors of Election to act at the meeting or any adjournment
thereof. If Inspectors of Election are not so appointed, the
Chairman, if any, of any meeting of Shareholders may, and on the request of any
Shareholder or Shareholder proxy shall, appoint Inspectors of Election of the
meeting. The number of Inspectors of Election shall be either one or
three. If appointed at the meeting on the request of one or more
Shareholders or proxies, a majority of Shares present shall determine whether
one or three Inspectors of Election are to be appointed, but failure to allow
such determination by the Shareholders shall not affect the validity of the
appointment of Inspectors of Election. In case any person appointed
as Inspector of Election fails to appear or fails or refuses to act, the vacancy
may be filled by appointment made by the Trustees in advance of the convening of
the meeting or at the meeting by the person acting as chairman. The
Inspectors of Election shall determine the number of Shares outstanding, the
Shares represented at the meeting, the existence of a quorum, the authenticity,
validity and effect of proxies, shall receive votes, ballots or consents, shall
hear and determine all challenges and questions in any way arising in connection
with the right to vote, shall count and tabulate all votes or consents,
determine the results, and do such other acts as may be proper to conduct the
election or vote with fairness to all Shareholders. If there are
three Inspectors of Election, the decision, act or certificate of a majority is
effective in all respects as the decision, act or certificate of
all. On request of the Chairman, if any, of the meeting, or of any
Shareholder or Shareholder proxy, the Inspectors of Election shall make a report
in writing of any challenge or question or matter determined by them and shall
execute a certificate of any facts found by them.
11
1.5 Records
at Shareholder Meetings. At each meeting of the Shareholders, there
shall be made available for inspection at a convenient time and place during
normal business hours, if requested by Shareholders, the minutes of the last
previous Annual or Special Meeting of Shareholders of the Trust and a list of
the Shareholders of the Trust, as of the record date of the meeting or the date
of closing of transfer books, as the case may be. Such list of
Shareholders shall contain the name and the address of each Shareholder in
alphabetical order and the number of Shares owned by such
Shareholder. Shareholders shall have such other rights and procedures
of inspection of the books and records of the Trust as are granted to
shareholders of a Delaware business corporation.
ARTICLE
V
Stock
Transfers
5.1 Transfer
Agents, Registrars and the Like. As provided in Section 6.7 of the
Declaration, the Trustees shall have authority to employ and compensate such
transfer agents and registrars with respect to the Shares of the Trust as the
Trustees shall deem necessary or desirable. In addition, the Trustees
shall have power to employ and compensate such dividend disbursing agents,
warrant agents and agents for the reinvestment of dividends as they shall deem
necessary or desirable. Any of such agents shall have such power and
authority as is delegated to any of them by the Trustees.
5.2 Transfer
of Shares. The Shares of the Trust shall be transferable on the books
of the Trust only upon delivery to the Trustees or a transfer agent of the Trust
of proper documentation as provided in Section 6.8 of the
Declaration. The Trust, or its transfer agents, shall be authorized
to refuse any transfer unless and until presentation of such evidence as may be
reasonably required to show that the requested transfer is proper.
5.3 Registered
Shareholders. The Trust may deem and treat the holder of record of
any Shares as the absolute owner thereof for all purposes and shall not be
required to take any notice of any right or claim of right of any other
person.
ARTICLE
VI
Amendment
of By-Laws
6.1 Amendment
and Repeal of By-Laws. In accordance with Section 3.9 of the
Declaration, the Trustees shall have the exclusive power to amend or repeal the
By-Laws or adopt new By-Laws at any time. Action by the Trustees with
respect to the By-Laws shall be taken by an affirmative vote of a majority of
the Trustees. The Trustees shall in no event adopt By-Laws which are
in conflict with the Declaration, and any apparent inconsistency shall be
construed in favor of the related provisions in the Declaration.
12