THE GABELLI GLOBAL GOLD, NATURAL RESOURCES & INCOME TRUST SECOND AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
Exhibit
99(a)(i)
THE
GABELLI GLOBAL GOLD, NATURAL RESOURCES & INCOME TRUST
____________________________________________
SECOND
AMENDED AND RESTATED
____________________________________________
January
4, 2005
Amended
and Restated January 12, 2005
Second
Amended and Restated February 26, 2009
TABLE OF
CONTENTS
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ARTICLE
I The
Trust
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1.1
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Name
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5
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1.2
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Definitions
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5
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ARTICLE II Trustees
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2.1
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Number and
Qualification
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6
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2.2
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Term and
Election
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6
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2.3
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Resignation and
Removal
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7
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2.4
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Vacancies
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7
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2.5
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Meetings
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8
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2.6
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Officers
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8
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ARTICLE III Powers and Duties of
Trustees
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3.1
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General
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9
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3.2
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Investments
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9
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3.3
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Legal
Title
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9
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3.4
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Issuance and
Repurchase of Shares
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10
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3.5
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Borrow Money or
Utilize Leverage
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10
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3.6
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Collection and
Payment
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10
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3.7
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Expenses
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10
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3.8
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By-Laws
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11
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3.9
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Miscellaneous
Powers
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11
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3.10
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Delegation;
Committees
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11
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3.11
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Further
Powers
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12
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ARTICLE IV Limitations of
Liability and Indemnification
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4.1
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No Personal Liability
of Shareholders, Trustees, etc
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12
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4.2
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Mandatory
Indemnification
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12
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4.3
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No Duty of
Investigation; Notice in Trust Instruments, etc.
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14
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4.4
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Reliance on Experts,
etc.
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14
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ARTICLE V Shares of Beneficial
Interest
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5.1
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Beneficial
Interest
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14
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5.2
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Classes and
Series
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14
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5.3
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Issuance of
Shares
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15
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2
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5.4
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Rights of
Shareholders
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15
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5.5
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Trust
Only
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15
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5.6
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Register of
Shares
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16
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5.7
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Transfer Agent and
Registrar
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16
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5.8
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Transfer of
Shares
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16
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5.9
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Notices
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16
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5.10
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Net Asset
Value
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17
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5.11
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Distributions to
Shareholders
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17
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ARTICLE VI Shareholders
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6.1
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Meetings of
Shareholders
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17
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6.2
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Voting
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18
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6.3
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Notice of Meeting,
Shareholder Proposals and Record Date
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18
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6.4
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Quorum and Required
Vote
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19
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6.5
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Proxies,
etc.
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19
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6.6
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Reports
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20
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6.7
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Inspection of
Records
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20
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6.8
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Shareholder Action by
Written Consent
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20
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ARTICLE VII Duration: Termination
of Trust; Amendment; Mergers, Etc.
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7.1
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Duration
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20
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7.2
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Termination
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21
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7.3
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Amendment
Procedure
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21
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7.4
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Merger, Consolidation
and Sale of Assets
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22
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7.5
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Redemption;
Conversion
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23
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7.6
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Certain
Transactions
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23
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ARTICLE VIII Miscellaneous
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8.1
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Filing
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25
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8.2
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Resident
Agent
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25
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8.3
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Governing
Law
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25
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8.4
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Counterparts
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25
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8.5
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Reliance by Third
Parties
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26
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8.6
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Provisions in Conflict
with Law or Regulation
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26
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3
THE GABELLI GLOBAL GOLD,
NATURAL RESOURCES & INCOME TRUST
SECOND AMENDED AND
RESTATED
SECOND AMENDED AND RESTATED AGREEMENT
AND DECLARATION OF TRUST made as of the 26th day
of February 2009, by the Trustees hereunder, and by the holders of shares of
beneficial interest issued hereunder as hereinafter provided.
WHEREAS, the Trustees desire to amend
and restate the Amended and Restated Agreement and Declaration of Trust made
January 5, 2005 and last amended January 12, 2005 in its entirety pursuant to
its Section 7.3;
WHEREAS,
this Trust has been formed to carry on business as set forth more particularly
hereinafter;
WHEREAS, this Trust is authorized to
issue an unlimited number of its shares of beneficial interest all in accordance
with the provisions hereinafter set forth;
WHEREAS, the Trustees have agreed to
manage all property coming into their hands as Trustees of a Delaware statutory
trust in accordance with the provisions hereinafter set forth; and
WHEREAS, the parties hereto intend that
the Trust created by its initial Agreement and Declaration of Trust and the
Certificate of Trust filed with the Secretary of State of the State of Delaware
on January 4, 2005 shall constitute a statutory trust under the Delaware
Statutory Trust Statute and that this Declaration shall constitute the governing
instrument of such statutory trust.
NOW, THEREFORE, the Trustees hereby
declare that they will hold all cash, securities, and other assets which they
may from time to time acquire in any manner as Trustees hereunder IN TRUST to
manage and dispose of the same upon the following terms and conditions for the
benefit of the holders from time to time of shares of beneficial interest in
this Trust as hereinafter set forth.
4
ARTICLE
I
The
Trust
1.1 Name. This
Trust shall be known as the "The Gabelli Global Gold, Natural Resources &
Income Trust" and the Trustees shall conduct the business of the Trust under
that name or any other name or names as they may from time to time
determine.
1.2 Definitions. As
used in this Declaration, the following terms shall have the following
meanings:
The terms "Affiliated Person",
"Assignment",
"Commission",
"Interested
Person" and "Principal
Underwriter" shall have the meanings given them in the 1940
Act.
"By-Laws" shall mean
the By-Laws of the Trust as amended from time to time by the
Trustees.
"Code" shall mean the
Internal Revenue Code of 1986, as amended, and the regulations promulgated
thereunder.
"Commission" shall
mean the Securities and Exchange Commission.
"Declaration" shall
mean this Second Amended and Restated Agreement and Declaration of Trust, as
amended or amended and restated from time to time, including by way of any
classifying or reclassifying Shares of any class or any series of any such class
or determining any designations, powers, preferences, voting, conversion and
other rights, limitations, qualifications and terms and conditions
thereof.
"Delaware Statutory Trust
Statute" shall mean the provisions of the Delaware Statutory Trust Act,
12 Del. C. §3801, et. seq., as such Act may
be amended from time to time.
"Person" shall mean
and include natural persons, corporations, partnerships, trusts, limited
liability companies, associations, joint ventures and other entities, whether or
not legal entities, and governments and agencies and political subdivisions
thereof.
"Prospectus" shall
mean the currently effective Prospectus of the Trust, if any, under the
Securities Act of 1933, as amended.
"Shareholders" shall
mean as of any particular time the holders of record of outstanding Shares of
the Trust at such time.
5
"Shares" shall mean
the transferable units of beneficial interest into which the beneficial interest
in the Trust shall be divided from time to time and includes fractions of Shares
as well as whole Shares. All references to Shares shall be deemed to
be Shares of any or all or series thereof as the context may
require.
"Trust" shall mean the
trust established by this Declaration, as amended from time to time, inclusive
of each such amendment.
"Trustees" shall mean
the signatory to this Declaration, so long as he shall continue in office in
accordance with the terms hereof, and all other persons who at the time in
question have been duly elected or appointed and have qualified as trustees in
accordance with the provisions hereof and are then in office.
"Trust Property" shall
mean as of any particular time any and all property, real or personal, tangible
or intangible, which at such time is owned or held by or for the account of the
Trust or the Trustees in such capacity.
The "1933 Act" refers to
the Securities Act of 1933 and the rules and regulations promulgated thereunder
and applicable exemptions therefrom covering the Trust and its affiliated
persons, as amended from time to time.
The "1940 Act" refers to
the Investment Company Act of 1940 and the rules and regulations promulgated
thereunder and applicable exemptions granted therefrom, as amended from time to
time.
ARTICLE
II
Trustees
2.1 Number and
Qualification. Prior to a public offering of Shares, there may
be a sole Trustee and thereafter the number of Trustees shall be such number,
not less than three, as shall be set forth in a written instrument signed or
adopted by a majority of the Trustees then in office. No reduction in
the number of Trustees shall have the effect of removing any Trustee from office
prior to the expiration of his term. An individual nominated as a
Trustee shall be at least 21 years of age and not older than such age as shall
be set forth in a written instrument signed or adopted by not less than
two-thirds of the Trustees then in office and shall not be under legal
disability. Trustees need not own Shares and may succeed themselves
in office.
2.2 Term and
Election. The Board of Trustees shall be divided into three
classes. Within the limits specified in Section 2.1, the number of
the Trustees in each class shall be determined by resolution of the Board of
Trustees. The initial term of office of the first class shall expire
on the date of the first annual meeting of Shareholders or special meeting in
lieu thereof. The initial term of office of the second class shall
expire on the date of the second annual meeting of Shareholders or special
meeting in lieu thereof. The initial term of office of the third
class shall expire on the date of the
6
third
annual meeting of Shareholders or special meeting in lieu
thereof. Upon expiration of the initial term of office of each class
as set forth above and the expiration of each subsequent term of office of such
class, the term of Trustees of such class shall be three years and until his or
her successor shall have been elected and shall have qualified or until his or
her earlier resignation, removal, incompetence, incapacitation or
death.
2.3 Resignation and
Removal. Any Trustee may resign his trust (without need for
prior or subsequent accounting) by an instrument in writing signed by him and
delivered or mailed to the Chairman, if any, the President or the Secretary and
such resignation shall be effective upon such delivery, or at a later date
provided in such instrument. Any Trustee may be removed (provided the
aggregate number of Trustees after such removal shall not be less than the
number required by Section 2.1 hereof) for cause at any time by written
instrument, signed by a majority of the remaining Trustees, specifying the date
when such removal shall become effective. Any Trustee may be removed
(provided the aggregate number of Trustees after such removal shall not be less
than the minimum number required by Section 2.1 hereof) without cause at any
time by a written instrument, signed or adopted by two-thirds of the remaining
Trustees or by vote of Shares having not less than two-thirds of the aggregate
number of Shares entitled to vote in the election of such Trustee, specifying
the date when such removal shall become effective. Upon the
resignation or removal of a Trustee, or such persons otherwise ceasing to be a
Trustee, such persons shall execute and deliver such documents as the remaining
Trustees shall require for the purpose of conveying to the Trust or the
remaining Trustees any Trust Property held in the name of the resigning or
removed Trustee. Upon the incapacity or death of any Trustee, such
Trustee's legal representative shall execute and deliver on such Trustee's
behalf such documents as the remaining Trustees shall require as provided in the
preceding sentence.
2.4 Vacancies. The
term of office of a Trustee shall terminate and a vacancy shall occur in the
event of the removal, resignation, incompetence or other incapacity to perform
the duties of the office, or death, of a Trustee. Whenever a vacancy
in the Board of Trustees shall occur, the remaining Trustees may fill such
vacancy by appointing an individual having the qualifications described in this
Article by a written instrument signed or adopted by a majority of the Trustees
then in office or by election by the Shareholders, or may leave such vacancy
unfilled or may reduce the number of Trustees (provided the aggregate number of
Trustees after such reduction shall not be less than the minimum number required
by Section 2.1 hereof). Any vacancy created by an increase in
Trustees may be filled by the appointment of an individual having the
qualifications described in this Article by a majority of the Trustees then in
office or by election by the Shareholders. No vacancy shall operate
to annul this Declaration or to revoke any existing agency created pursuant to
the terms of this Declaration. Whenever a vacancy in the number of
Trustees shall occur, until such vacancy is filled as provided herein, the
Trustees in office, regardless of their number, shall have all the powers
granted to the Trustees and shall discharge all the duties imposed upon the
Trustees by this Declaration.
7
2.5 Meetings. Meetings
of the Trustees shall be held from time to time upon the call of the Chairman,
if any, the President, the Secretary or any two Trustees. Regular
meetings of the Trustees may be held without call or notice at a time and place
fixed by the By-Laws or by resolution of the Trustees. Notice of any
other meeting shall be mailed or, to the extent permitted by applicable law,
transmitted by electronic mail or other form of legally permissible electronic
transmission not less than 48 hours before the meeting or otherwise actually
delivered orally or in writing not less than 24 hours before the meeting, but
may be waived in writing by any Trustee either before or after such
meeting. The attendance of a Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Trustee attends a meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting has not been lawfully called or convened. The
Trustees may act with or without a meeting. A quorum for all meetings
of the Trustees shall be one-third of the Trustees then in
office. Unless provided otherwise in this Declaration of Trust, any
action of the Trustees may be taken at a meeting by vote of a majority of the
Trustees present (a quorum being present) or without a meeting by written
consent of a majority of the Trustees or such other proportion as shall be
specified herein for action at a meeting at which all Trustees then in office
are present.
Any committee of the Trustees,
including an executive committee, if any, may act with or without a
meeting. A quorum for all meetings of any such committee shall be a
majority of the members thereof. Unless provided otherwise in this
Declaration, any action of any such committee may be taken at a meeting by vote
of a majority of the members present (a quorum being present) or without a
meeting by written consent of a majority of the members or such other proportion
as shall be specified herein for action at a meeting at which all committee
members are present.
With respect to actions of the Trustees
and any committee of the Trustees, Trustees who are Interested Persons in any
action to be taken may be counted for quorum purposes under this Section and
shall be entitled to vote to the extent not prohibited by the 1940
Act.
All or any one or more Trustees may
participate in a meeting of the Trustees or any committee thereof by means of a
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other; participation in a
meeting pursuant to any such communications system shall constitute presence in
person at such meeting except as otherwise provided by the 1940
Act.
The Trustees may elect a Chairman of
the Board of Trustees, who shall not, in his or her capacity as such, be an
officer of the Trust and who shall serve at the pleasure of the
Trustees.
2.6 Officers. The
Trustees shall elect a President, a Secretary and a Treasurer who shall serve at
the pleasure of the Trustees or until their successors are
elected. The Trustees may elect or appoint or may authorize the
Chairman, if any, or
8
President
to appoint such other officers or agents with such other titles and powers as
the Trustees may deem to be advisable. A Chairman shall, and the
President, Secretary and Treasurer may, but need not, be a Trustee.
ARTICLE
III
Powers and Duties of
Trustees
3.1 General. The
Trustees shall owe to the Trust and its Shareholders the same fiduciary duties
as owed by directors of corporations to such corporations and their stockholders
under the general corporation law of the State of Delaware. The
Trustees shall have exclusive and absolute control over the Trust Property and
over the business of the Trust to the same extent as if the Trustees were the
sole owners of the Trust Property and business in their own right, but with such
powers of delegation as may be permitted by this Declaration. The
Trustees shall have power to engage in any activity not prohibited by Delaware
law. The enumeration of any specific power herein shall not be
construed as limiting the aforesaid power. The Trustees may perform
such acts as in their sole discretion are proper for conducting the business of
the Trust. The powers of the Trustees may be exercised without order
of or resort to any court. No Trustee shall be obligated to give any
bond or other security for the performance of any of his duties or powers
hereunder.
3.2 Investments. The
Trustees shall have power to:
(a) manage, conduct,
operate and carry on the business of an investment company;
(b) subscribe for, invest
in, reinvest in, purchase or otherwise acquire, hold, pledge, sell, assign,
transfer, exchange, distribute or otherwise deal in or dispose of any and all
sorts of property, tangible or intangible, including but not limited to
securities of any type whatsoever, whether equity or non-equity, of any issuer,
evidences of indebtedness of any person and any other rights, interests,
instruments or property of any sort and to exercise any and all rights, powers
and privileges of ownership or interest in respect of any and all such
investments of every kind and description, including, without limitation, the
right to consent and otherwise act with respect thereto, with power to designate
one or more Persons to exercise any of said rights, powers and privileges in
respect of any of said investments. The Trustees shall not be limited
by any law limiting the investments which may be made by
fiduciaries.
3.3 Legal
Title. Legal title to all the Trust Property shall be vested
in the Trustees as joint tenants except that the Trustees shall have power to
cause legal title to any Trust Property to be held by or in the name of one or
more of the Trustees, or in the name of the Trust, or in the name of any other
Person as nominee, custodian or pledgee, on such terms as the Trustees may
determine, provided that the interest of the Trust therein is appropriately
protected.
9
The right, title and interest of the
Trustees in the Trust Property shall vest automatically in each person who may
hereafter become a Trustee upon his due election and
qualification. Upon the ceasing of any person to be a Trustee for any
reason, such person shall automatically cease to have any right, title or
interest in any of the Trust Property, and the right, title and interest of such
Trustee in the Trust Property shall vest automatically in the remaining
Trustees. Such vesting and cessation shall be effective whether or
not conveyancing documents have been executed and delivered.
3.4 Issuance and Repurchase of
Shares. Subject to the provisions of this Declaration and
applicable law, the Trustees shall have the power to issue, sell, repurchase,
redeem, retire, cancel, acquire, hold, resell, reissue, dispose of, transfer,
and otherwise deal in, Shares, including Shares in fractional denominations, and
to apply to any such repurchase, redemption, retirement, cancellation or
acquisition of Shares any funds or property whether capital or surplus or
otherwise, to the full extent now or hereafter not prohibited by the laws of the
State of Delaware governing statutory trusts.
3.5 Borrow Money or Utilize
Leverage. The Trustees shall have the power to borrow money or
otherwise obtain credit or utilize leverage in connection with the activities of
the Trust to the maximum extent permitted by law, including by regulation or
order, and to secure the same by mortgaging, pledging or otherwise subjecting as
security the assets of the Trust, including the lending of portfolio securities,
and to endorse, guarantee, or undertake the performance of any obligation,
contract or engagement of any other person, firm, association or
corporation.
3.6 Collection and
Payment. The Trustees shall have power to collect all property
due to the Trust; to pay all claims, including taxes, against the Trust Property
or the Trust, the Trustees or any officer, employee or agent of the Trust; to
prosecute, defend, compromise or abandon any claims relating to the Trust
Property or the Trust, or the Trustees or any officer, employee or agent of the
Trust; to foreclose any security interest securing any obligations, by virtue of
which any property is owed to the Trust; and to enter into releases, agreements
and other instruments. Except to the extent required for a Delaware
business corporation, the Shareholders shall have no power to vote as to whether
or not a court action, legal proceeding or claim should or should not be brought
or maintained derivatively or as a class action on behalf of the Trust or the
Shareholders.
3.7 Expenses. The
Trustees shall have power to incur and pay out of the assets or income of the
Trust any expenses which in the opinion of the Trustees are necessary or
appropriate to carry out any of the purposes of this Declaration, and the
business of the Trust, and to pay reasonable compensation from the funds of the
Trust to themselves as Trustees. The Trustees shall fix the
compensation of all officers, employees and Trustees. The Trustees
may pay themselves such compensation for special services, including legal,
underwriting, syndicating and brokerage services, as
10
they
in good faith may deem reasonable and reimbursement for expenses reasonably
incurred by themselves on behalf of the Trust.
3.8 By-Laws. The
Trustees may adopt and from time to time amend or repeal By-Laws for the conduct
of the business of the Trust. Such By-Laws shall be binding on the
Trust and the Shareholders unless inconsistent with the provisions of this
Declaration. The Shareholders shall not have authority to adopt,
amend or repeal By-Laws.
3.9 Miscellaneous
Powers. The Trustees shall have the power to: (a)
employ or contract with such Persons as the Trustees may deem desirable for the
transaction of the business of the Trust, including investment advisors,
administrators, custodians, transfer agents, shareholder services providers,
accountants, counsel, brokers, dealers and others, and to delegate or grant to
such persons all such power and authority as the Trustees may determine; (b)
enter into joint ventures, partnerships and any other combinations or
associations; (c) purchase, and pay for out of Trust Property, insurance
policies insuring the Shareholders, Trustees, officers, employees, agents,
investment advisors, distributors, selected dealers or independent contractors
of the Trust against all claims arising by reason of holding any such position
or by reason of any action taken or omitted by any such Person in such capacity,
whether or not constituting negligence, or whether or not the Trust would have
the power to indemnify such Person against such liability; (d) establish
pension, profit-sharing, share purchase, and other retirement, incentive and
benefit plans for any Trustees, officers, employees and agents of the Trust; (e)
make donations, irrespective of benefit to the Trust, for charitable, religious,
educational, scientific, civic or similar purposes; (f) to the extent permitted
by applicable law, indemnify any Person with whom the Trust has dealings,
including without limitation any investment adviser, administrator, manager,
transfer agent, custodian, distributor or selected dealer, or any other person
as the Trustees may see fit to such extent as the Trustees shall determine; (g)
guarantee indebtedness or contractual obligations of others; (h) determine and
change the fiscal year of the Trust and the method in which its accounts shall
be kept; and (i) adopt a seal for the Trust but the absence of such seal shall
not impair the validity of any instrument executed on behalf of the
Trust.
3.10 Delegation;
Committees. The Trustees shall have the power, consistent with
their continuing exclusive authority over the management of the Trust and the
Trust Property, to delegate from time to time to such of their number or to
officers, employees or agents of the Trust the doing of such things and the
execution of such instruments either in the name of the Trust or the names of
the Trustees or otherwise as the Trustees may deem expedient. The
Trustees may designate one or more committees each of which shall have all or
such lesser portion of the power and authority of the entire Board of Trustees
as the Trustees shall determine from time to time, except to the extent action
by the entire Board of Trustees or particular Trustees is required by the 1940
Act.
11
3.11 Further
Powers. The Trustees shall have the power to conduct the
business of the Trust and carry on its operations in any and all of its branches
and maintain offices both within and without the State of Delaware, in any and
all states of the United States of America, in the District of Columbia, and in
any and all commonwealths, territories, dependencies, colonies, possessions,
agencies or instrumentalities of the United States of America and of foreign
governments, and to do all such other things and execute all such instruments as
they deem necessary, proper or desirable in order to promote the interests of
the Trust although such things are not herein specifically
mentioned. Any determination as to what is in the interests of the
Trust made by the Trustees in good faith shall be conclusive. In
construing the provisions of this Declaration, the presumption shall be in favor
of a grant of power to the Trustees.
ARTICLE
IV
Limitations of Liability and
Indemnification
4.1 No Personal Liability of
Shareholders, Trustees, etc. No Shareholder of the Trust shall
be subject in such capacity to any personal liability whatsoever to any Person
in connection with Trust Property or the acts, obligations or affairs of the
Trust. Shareholders shall have the same limitation of personal
liability as is extended to stockholders of a private corporation for profit
incorporated under the general corporation law of the State of
Delaware. No Trustee or officer of the Trust shall be subject in such
capacity to any personal liability whatsoever to any Person, other than the
Trust or its Shareholders, in connection with Trust Property or the affairs of
the Trust, save only liability to the Trust or its Shareholders arising from bad
faith, willful misfeasance, gross negligence or reckless disregard for his duty
to such Person; and, subject to the foregoing exception, all such Persons shall
look solely to the Trust Property for satisfaction of claims of any nature
arising in connection with the affairs of the Trust. If any
Shareholder, Trustee or officer, as such, of the Trust, is made a party to any
suit or proceeding to enforce any such liability, subject to the foregoing
exception, he shall not, on account thereof, be held to any personal
liability.
4.2 Mandatory
Indemnification. (a) The Trust shall indemnify the
Trustees and officers of the Trust (each such person being an "indemnitee")
against any liabilities and expenses, including amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and reasonable counsel fees
reasonably incurred by such indemnitee in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or criminal,
before any court or administrative or investigative body in which he may be or
may have been involved as a party or otherwise (other than, except as authorized
by the Trustees, as the plaintiff or complainant) or with which he may be or may
have been threatened, while acting in any capacity set forth above in this
Section 4.2 by reason of his having acted in any such capacity, except with
respect to any matter as to which he shall not have acted in good faith in the
reasonable belief that his action was in the best interest of the Trust or, in
the case of any criminal proceeding, as to
12
which
he shall have had reasonable cause to believe that the conduct was unlawful,
provided, however, that no indemnitee shall be indemnified hereunder against any
liability to any person or any expense of such indemnitee arising by reason of
(i) willful misfeasance, (ii) bad faith, (iii) gross negligence (negligence in
the case of Affiliated Indemnitees), or (iv) reckless disregard of the duties
involved in the conduct of his position (the conduct referred to in such clauses
(i) through (iv) being sometimes referred to herein as "disabling
conduct"). Notwithstanding the foregoing, with respect to any action,
suit or other proceeding voluntarily prosecuted by any indemnitee as plaintiff,
indemnification shall be mandatory only if the prosecution of such action, suit
or other proceeding by such indemnitee was authorized by a majority of the
Trustees.
(b) Notwithstanding the
foregoing, no indemnification shall be made hereunder unless there has been a
determination (1) by a final decision on the merits by a court or other body of
competent jurisdiction before whom the issue of entitlement to indemnification
hereunder was brought that such indemnitee is entitled to indemnification
hereunder or, (2) in the absence of such a decision, by (i) a majority vote of a
quorum of those Trustees who are neither Interested Persons of the Trust nor
parties to the proceeding ("Disinterested Non-Party Trustees"), that the
indemnitee is entitled to indemnification hereunder, or (ii) if such quorum is
not obtainable or even if obtainable, if such majority so directs, independent
legal counsel in a written opinion conclude that the indemnitee should be
entitled to indemnification hereunder. All determinations to make
advance payments in connection with the expense of defending any proceeding
shall be authorized and made in accordance with the immediately succeeding
paragraph (c) below.
(c) The Trust shall make
advance payments in connection with the expenses of defending any action with
respect to which indemnification might be sought hereunder if the Trust receives
a written affirmation by the indemnitee of the indemnitee's good faith belief
that the standards of conduct necessary for indemnification have been met and a
written undertaking to reimburse the Trust unless it is subsequently determined
that he is entitled to such indemnification and if a majority of the Trustees
determine that the applicable standards of conduct necessary for indemnification
appear to have been met. In addition, at least one of the following
conditions must be met: (1) the indemnitee shall provide adequate
security for his undertaking, (2) the Trust shall be insured against losses
arising by reason of any lawful advances, or (3) a majority of a quorum of the
Disinterested Non-Party Trustees, or if a majority vote of such quorum so
direct, independent legal counsel in a written opinion, shall conclude, based on
a review of readily available facts (as opposed to a full trial-type inquiry),
that there is substantial reason to believe that the indemnitee ultimately will
be found entitled to indemnification.
(d) The rights accruing to
any indemnitee under these provisions shall not exclude any other right to which
he may be lawfully entitled.
(e) Notwithstanding the
foregoing, subject to any limitations provided by the 1940 Act and this
Declaration, the Trust shall have the power and authority to indemnify Persons
providing services to the Trust to the full extent provided
13
by
law as if the Trust were a corporation organized under the Delaware General
Corporation Law provided that such indemnification has been approved by a
majority of the Trustees.
4.3 No Duty of Investigation;
Notice in Trust Instruments, etc. No purchaser, lender,
transfer agent or other person dealing with the Trustees or with any officer,
employee or agent of the Trust shall be bound to make any inquiry concerning the
validity of any transaction purporting to be made by the Trustees or by said
officer, employee or agent or be liable for the application of money or property
paid, loaned, or delivered to or on the order of the Trustees or of said
officer, employee or agent. Every obligation, contract, undertaking,
instrument, certificate, Share, other security of the Trust, and every other act
or thing whatsoever executed in connection with the Trust shall be conclusively
taken to have been executed or done by the executors thereof only in their
capacity as Trustees under this Declaration or in their capacity as officers,
employees or agents of the Trust. The Trustees may maintain insurance
for the protection of the Trust Property, its Shareholders, Trustees, officers,
employees and agents in such amount as the Trustees shall deem adequate to cover
possible liability, and such other insurance as the Trustees in their sole
judgment shall deem advisable or is required by the 1940 Act.
4.4 Reliance on Experts,
etc. Each Trustee and officer or employee of the Trust shall,
in the performance of its duties, be fully and completely justified and
protected with regard to any act or any failure to act resulting from reliance
in good faith upon the books of account or other records of the Trust, upon an
opinion of counsel, or upon reports made to the Trust by any of the Trust's
officers or employees or by any advisor, administrator, manager, distributor,
selected dealer, accountant, appraiser or other expert or consultant selected
with reasonable care by the Trustees, officers or employees of the Trust,
regardless of whether such counsel or other person may also be a
Trustee.
ARTICLE
V
Shares of Beneficial
Interest
5.1 Beneficial
Interest. The interest of the beneficiaries hereunder shall be
divided into an unlimited number of shares of beneficial interest, par value
$.001 per share. All Shares issued in accordance with the terms
hereof, including, without limitation, Shares issued in connection with a
dividend in Shares or a split of Shares, shall be fully paid and nonassessable
when the consideration determined by the Trustees (if any) therefor shall have
been received by the Trust.
5.2 Classes and
Series. The Trustees shall have the authority, without the
approval of the holders of any Shares of the Trust, to classify and reclassify
issued and unissued Shares into one or more classes and one or more series of
any or all of such classes, each of which classes and series thereof shall have
such designations, powers, preferences, voting, conversion and other rights,
limitations, qualifications and terms and
14
conditions
as the Trustees shall determine from time to time with respect to each such
class or series; provided, however, that no reclassification of any issued and
outstanding Shares and no modifications of any of the designations, powers,
preferences, voting, conversion or other rights, limitations, qualifications and
terms and conditions of any issued and outstanding Shares may be made by the
Trustees without the affirmative vote of the holders of Shares specified in
Section 7.3(a) to the extent required thereby. The initial class of
Shares of the Trust shall be designated as "Common Shares", subject to
redesignation as aforesaid. To the extent expressly determined by the
Trustees as aforesaid, all consideration received by the Trust for the issue or
sale of Shares of a class, together with all income, earnings, profits and
proceeds thereof, including any proceeds derived from the sale, exchange or
liquidation thereof, and any funds or payments derived from any reinvestment of
such proceeds in whatever form the same may be, shall irrevocably belong to such
class subject only to the rights of the creditors, and all liabilities allocable
to such class shall be charged thereto.
5.3 Issuance of
Shares. The Trustees, in their discretion, may from time to
time without vote of the Shareholders issue Shares of any class or any series of
any such class to such party or parties and for such amount and type of
consideration, including cash or property, at such time or times, and on such
terms as the Trustees may determine, and may in such manner acquire other assets
(including the acquisition of assets subject to, and in connection with the
assumption of, liabilities) and businesses. The Trustees may from
time to time divide or combine the Shares of any class or any series of any such
class into a greater or lesser number without thereby changing the proportionate
beneficial interest in such Shares. Issuances and repurchases of
Shares may be made in whole Shares and/or l/l,000ths of a Share or multiples
thereof as the Trustees may determine.
5.4 Rights of
Shareholders. The Shares shall be personal property giving
only the rights in this Declaration specifically set forth. The
ownership of the Trust Property of every description and the right to conduct
any business are vested exclusively in the Trustees, and the Shareholders shall
have no interest therein other than the beneficial interest conferred by their
Shares, and they shall have no right to call for any partition or division of
any property, profits, rights or interests of the Trust nor can they be called
upon to share or assume any losses of the Trust suffer an assessment of any kind
by virtue of their ownership of Shares. The Shares shall not entitle
the holder to preference, preemptive, appraisal, conversion or exchange rights
(except as specified in this Section 5.4, in Section 7.4 or as specified by the
Trustees in the designation or redesignation of any class or series thereof of
the Shares).
5.5 Trust
Only. It is the intention of the Trustees to create only the
relationship of Trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention of the
Trustees to create a general partnership, limited partnership, joint stock
association, corporation, bailment or any form of legal relationship other than
a trust. Nothing in this Declaration shall be construed to make the
Shareholders, either by themselves or with the Trustees, partners or members of
a joint stock association.
15
5.6 Register of
Shares. A register shall be kept at the Trust or any transfer
agent duly appointed by the Trustees under the direction of the Trustees which
shall contain the names and addresses of the Shareholders and the number of
Shares held by them respectively and a record of all transfers
thereof. Separate registers shall be established and maintained for
each class and each series of each class. Each such register shall be
conclusive as to who are the holders of the Shares of the applicable class and
series and who shall be entitled to receive dividends or distributions or
otherwise to exercise or enjoy the rights of Shareholders. No
Shareholder shall be entitled to receive payment of any dividend or
distribution, nor to have notice given to him as herein provided, until he has
given his address to a transfer agent or such other officer or agent of the
Trustees as shall keep the register for entry thereon. It is not
contemplated that certificates will be issued for the Shares; however, the
Trustees, in their discretion, may authorize the issuance of share certificates
and promulgate appropriate fees therefore and rules and regulations as to their
use.
5.7 Transfer Agent and
Registrar. The Trustees shall have power to employ a transfer
agent or transfer agents, and a registrar or registrars, with respect to the
Shares. The transfer agent or transfer agents may keep the applicable
register and record therein, the original issues and transfers, if any, of the
said Shares. Any such transfer agent and registrar shall perform the
duties usually performed by transfer agents and registrars of stock in a
corporation, as modified by the Trustees.
5.8 Transfer of
Shares. Shares shall be transferable on the records of the
Trust only by the record holder thereof or by its agent thereto duly authorized
in writing, upon delivery to the Trustees or a transfer agent of the Trust of a
duly executed instrument of transfer, together with such evidence of the
genuineness of each such execution and authorization and of other matters as may
reasonably be required. Upon such delivery the transfer shall be
recorded on the applicable register of the Trust. Until such record
is made, the Shareholder of record shall be deemed to be the holder of such
Shares for all purposes hereof and neither the Trustees nor any transfer agent
or registrar nor any officer, employee or agent of the Trust shall be affected
by any notice of the proposed transfer.
Any person becoming entitled to any
Shares in consequence of the death, bankruptcy, or incompetence of any
Shareholder, or otherwise by operation of law, shall be recorded on the
applicable register of Shares as the holder of such Shares upon production of
the proper evidence thereof to the Trustees or a transfer agent of the Trust,
but until such record is made, the Shareholder of record shall be deemed to be
the holder of such for all purposes hereof, and neither the Trustees nor any
transfer agent or registrar nor any officer or agent of the Trust shall be
affected by any notice of such death, bankruptcy or incompetence, or other
operation of law.
5.9 Notices. Any
and all notices to which any Shareholder hereunder may be entitled and any and
all communications to any Shareholder shall be deemed duly given or made if
transmitted by electronic mail or other form of legally
permissible
16
electronic
transmission, or if mailed, postage prepaid, addressed to any Shareholder of
record at his last known address as recorded on the applicable register of the
Trust and may be sent together with any such notice or other communication to
another Shareholder at the same address. To the extent consistent
with applicable law, including any regulation or order, or consented to by any
Shareholder, any such notice or other communication may be given or made in any
other manner. Notice directed to a Shareholder by electronic mail or other form
of legally permissible electronic transmission shall be transmitted to any
address at which the Shareholder receives electronic mail or other electronic
transmissions.
5.10 Net Asset
Value. The value of the assets of the Trust, the amount of
liabilities of the Trust and the net asset value of each outstanding Common
Share of the Trust shall be determined at such time or times on such days as the
Trustees may determine, in accordance with the 1940 Act. The method
of determination of net asset value shall be determined by the
Trustees. The power and duty to make net asset value determinations
and calculations may be delegated by the Trustees.
5.11 Distributions to
Shareholders.
(a) The Trustees shall from
time to time distribute among the Shares (or one or more classes or series
thereof) such portion of the net profits, surplus (including paid-in surplus),
capital, or assets held by the Trustees as they may deem proper or as may
otherwise be determined in the instrument setting forth the terms of such Shares
or such class or series of Shares, which need not be ratable with respect to
distributions in respect of Shares of any other class or series thereof of the
Trust. Such distributions may be made in cash or property (including
without limitation any type of obligations of the Trust or any assets thereof)
or any combination thereof.
(b) Distributions may be
made to the Shareholders of record entitled to such distribution at the time
such distribution is declared or at such later date as shall be determined by
the Trust prior to the date of payment.
(c) The Trustees may always
retain from any source such amount as they may deem necessary to pay the debts
or expenses of the Trust or to meet obligations of the Trust, or as they
otherwise may deem desirable to use in the conduct of its affairs or to retain
for future requirements or extensions of the business of the Trust.
ARTICLE
VI
Shareholders
6.1 Meetings of
Shareholders. The Trust may, but shall not be required to,
hold annual meetings of the holders of any class or series of
Shares. An annual or special meeting of Shareholders may be called at
any time only by the Trustees; provided, however, that if May 31 of any year
shall have passed and the Trustees shall not have called an annual meeting of
Shareholders for such year, the Trustees shall call a
17
meeting
for the purpose of voting on the removal of one or more Trustees or the
termination of any investment advisory agreement or independent accountants,
upon written request of holders of Shares of the Trust having in the aggregate
not less than a majority of the votes of the outstanding Shares of the Trust
entitled to vote on the matter or matters in question, such request specifying
the purpose or purposes for which such meeting is to be called. Any
meeting of Shareholders shall be held within or without the State of Delaware on
such day and at such time as the Trustees shall designate.
6.2 Voting. Shareholders
shall have no power to vote on any matter (including matters as to which the
Delaware Statutory Trust Statute specifies a voting requirement in the absence
of a provision in the Declaration, it being the intention of this Declaration
that Shareholders shall have no power to vote on any such matter except as
described herein) except matters on which a vote of Shares is required by or
pursuant to the 1940 Act, this Declaration, the By-Laws or resolution of the
Trustees. Any matter required to be submitted for approval of any of
the Shares and affecting one or more classes or series shall require approval by
the required vote of Shares of the affected class or classes and series voting
together as a single class and, if such matter affects one or more classes or
series thereof differently from one or more other classes or series thereof or
from one or more series of the same class, approval by the required vote of
Shares of such other class or classes or series or series voting as a separate
class shall be required in order to be approved with respect to such other class
or classes or series or series; provided, however, that except to the extent
required by the 1940 Act, there shall be no separate class votes on the election
or removal of Trustees or the selection of auditors for the
Trust. Shareholders of a particular class or series thereof shall not
be entitled to vote on any matter that affects the rights or interests of only
one or more other classes or series of such other class or classes or only one
or more other series of the same class. There shall be no cumulative
voting in the election or removal of Trustees.
6.3 Notice of Meeting,
Shareholder Proposals and Record Date. Notice of all meetings
of Shareholders, stating the time, place and purposes of the meeting, shall be
given by the Trustees by mail or, to the extent permitted by applicable law or
consented to by the shareholder, transmitted by electronic mail or other form of
electronic transmission to each Shareholder of record entitled to vote thereat
at its registered address or electronic address, mailed or transmitted at least
10 days before the meeting or otherwise in compliance with applicable
law. Except with respect to an annual meeting, at which any business
required by the 1940 Act may be conducted, only the business stated in the
notice of the meeting shall be considered at such meeting. Subject to
the provisions of applicable law, any Shareholder wishing to include a proposal
to be considered at an annual meeting must submit such proposal to the Trust at
least 30 days in advance of such meeting. Any adjourned meeting may
be held as adjourned one or more times without further notice not later than 130
days after the record date. For the purposes of determining the
Shareholders who are entitled to notice of and to vote at any meeting the
Trustees may, without closing the transfer books, fix a date not more than 100
days prior to the date of such meeting of Shareholders as a record date for the
determination of the Persons to be treated as Shareholders of record for such
purposes. Notice directed to a Shareholder by electronic mail or
other form of electronic
18
transmission
may be transmitted to any address at which the Shareholder receives electronic
mail or other electronic transmissions.
6.4 Quorum and Required
Vote.
(a) The holders of
one-third of the outstanding Shares of the Trust on the record date present in
person or by proxy shall constitute a quorum at any meeting of the Shareholders
for purposes of conducting business on which a vote of all Shareholders of the
Trust is being taken. The holders of one-third of the outstanding
Shares of a class or classes on the record date present in person or by proxy
shall constitute a quorum at any meeting of the Shareholders of such class or
classes for purposes of conducting business on which a vote of Shareholders of
such class or classes is being taken. The holders of one-third of the
outstanding Shares of a series or series on the record date present in person or
by proxy shall constitute a quorum at any meeting of the Shareholders of such
series or series for purposes of conducting business on which a vote of
Shareholders of such series or series is being taken. Shares
underlying a proxy as to which a broker or other intermediary states its absence
of authority to vote with respect to one or more matters shall be treated as
present for purposes of establishing a quorum for taking action on any such
matter only to the extent so determined by the Trustees at or prior to the
meeting of Shareholders at which such matter is to be considered.
(b) Subject to any
provision of the 1940 Act or this Declaration specifying or requiring a greater
or lesser vote requirement for the transaction of any matter of business at any
meeting of Shareholders or, in the absence of any such provision of the 1940 Act
or this Declaration, subject to any provision of the By-Laws or resolution of
the Trustees specifying or requiring a greater or lesser vote requirement, (i)
the affirmative vote of a plurality (or, if provided by the By-Laws, a majority)
of the Shares present in person or represented by proxy and entitled to vote for
the election of any Trustee or Trustees shall be the act of such Shareholders
with respect to the election of such Trustee or Trustees, (ii) the affirmative
vote of a majority of the Shares present in person or represented by proxy and
entitled to vote on any other matter shall be the act of the Shareholders with
respect to such matter, and (iii) where a separate vote of one or more classes
or series is required on any matter, the affirmative vote of a majority of the
Shares of such class or classes or series or series present in person or
represented by proxy and entitled to vote on such matter shall be the act of the
Shareholders of such class or classes or series or series with respect to such
matter. Except to the extent otherwise required by the 1940 Act, a
majority of the Shares of any series or class shall mean the lesser of a
majority of the outstanding Shares of such class or series and at least 67% of a
quorum of at least 50% of the Shares held of record on the relevant record date
present in person or by proxy.
6.5 Proxies,
etc. At any meeting of Shareholders, any holder of Shares
entitled to vote thereat may vote by proxy, provided that no proxy shall be
voted at any meeting unless it shall have been placed on file with the
Secretary, or with such other officer or agent of the Trust as the Secretary may
direct, for verification prior to the time at which such vote shall be
taken. Pursuant to a resolution of a majority of the
Trustees,
19
proxies
may be solicited in the name of one or more Trustees or one or more of the
officers or employees of the Trust. Only Shareholders of record shall
be entitled to vote. Each full Share shall be entitled to one vote
and each fractional Share shall be entitled to a vote equal to its fraction of a
full Share. When any Share is held jointly by several persons, any
one of them may vote at any meeting in person or by proxy in respect of such
Share, but if more than one of them shall be present at such meeting in person
or by proxy, and such joint owners or their proxies so present disagree as to
any vote to be cast, such vote shall not be received in respect of such
Share. A proxy purporting to be given by or on behalf of a
Shareholder of record on the record date for a meeting shall be deemed valid
unless challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger. If the holder of any such
Share is a minor or a person of unsound mind, and subject to guardianship or to
the legal control of any other person as regards the charge or management of
such Share, he may vote by his guardian or such other person appointed or having
such control, and such vote may be given in person or by proxy. The
Trustees shall have the authority to make and modify from time to time
regulations regarding the validity of proxies. In addition to signed
proxies, such regulations may authorize facsimile, telephonic, Internet and
other methods of appointing a proxy that are subject to such supervision by or
under the direction of the Trustees as the Trustees shall
determine.
6.6 Reports. The
Trustees shall cause to be prepared and sent to Shareholders at least annually
and more frequently to the extent and in the form required by law or any
exchange on which Shares are listed a report of operations
containing financial statements of the Trust prepared in conformity
with generally accepted accounting principles and applicable law.
6.7 Inspection of
Records. The records of the Trust shall be open to inspection
by Persons who have been holders of record of at least $25,000 (or such higher
amount as may be authorized by law) in net asset value or liquidation preference
of Shares for a continuous period of not less than six months to the same extent
and for the same purposes as is permitted under the Delaware General Business
Corporation Law to shareholders of a Delaware business corporation.
6.8 Shareholder Action by
Written Consent. Any action which may be taken by Shareholders
by vote may be taken without a meeting if the holders of all of the Shares
entitled to vote thereon consent to the action in writing and the written
consents are filed with the records of the meetings of
Shareholders. Such consent shall be treated for all purposes as a
vote taken at a meeting of Shareholders.
ARTICLE
VII
Duration: Termination
of Trust; Amendment; Mergers, Etc.
7.1 Duration. Subject
to termination in accordance with the provisions of Section 7.2 hereof, the
Trust created hereby shall have perpetual existence.
20
7.2 Termination.
(a) The Trust may be
dissolved, after two thirds of the Trustees then in office have approved a
resolution therefor, upon approval by ▇▇▇▇▇▇ having at least 75% of the votes of
all of the Shares outstanding on the record date for such meeting, voting as a
single class except to the extent required by the 1940 Act. Upon the
dissolution of the Trust:
(i) The Trust shall carry
on no business except for the purpose of winding up its affairs.
(ii) The Trustees shall
proceed to wind up the affairs of the Trust and all of the powers of the
Trustees under this Declaration shall continue until the affairs of the Trust
shall have been wound up, including the power to fulfill or discharge the
contracts of the Trust, collect its assets, sell, convey, assign, exchange,
merger where the Trust is not the survivor, transfer or otherwise dispose of all
or any part of the remaining Trust Property to one or more Persons at public or
private sale for consideration which may consist in whole or in part in cash,
securities or other property of any kind, discharge or pay its liabilities, and
do all other acts appropriate to liquidate its business; provided that any sale,
conveyance, assignment, exchange, merger in which the Trust is not the survivor,
transfer or other disposition of all or substantially all the Trust Property of
the Trust shall require approval of the principal terms of the transaction and
the nature and amount of the consideration with the same vote as required for
dissolution pursuant to paragraph (a) above.
(iii) After paying or
adequately providing for the payment of all liabilities, and upon receipt of
such releases, indemnities and refunding agreements, as they deem necessary for
their protection, the Trustees may distribute the remaining Trust Property, in
cash or in kind or partly each, among the Shareholders according to their
respective rights.
(b) After the winding up
and termination of the Trust and distribution to the Shareholders as herein
provided, a majority of the Trustees shall execute and lodge among the records
of the Trust an instrument in writing setting forth the fact of such termination
and shall execute and file a certificate of cancellation with the Secretary of
State of the State of Delaware. Upon termination of the Trust, the
Trustees shall thereupon be discharged from all further liabilities and duties
hereunder, and the rights and interests of all Shareholders shall thereupon
cease.
7.3 Amendment Procedure.
(a) Except as required by
applicable law or this Declaration, the Trustees may amend this Declaration
without any vote of Shareholders, including to change the name of the Trust or
any class or series, to make any change that does not adversely affect the
relative rights or preferences of any class or series of Shares or to conform
this Declaration to the requirements of the 1940 Act or any other applicable
law,
21
but
the Trustees shall not be liable for failing to do so. If a vote of
Shareholders is required by applicable law or this Declaration, or if the
Trustees determine to submit an amendment to a vote of Shareholders, then, other
than with respect to amendments of Sections 2.2, 2.3, 3.8, 6.1, 6.2, 6.4, 6.8,
7.1, 7.2, 7.3, 7.4, 7.5 and 7.6, this Declaration may be amended, after a
majority of the Trustees then in office have approved a resolution therefor, by
the affirmative vote set forth in Section 6.4(b)(ii). Sections 2.2,
2.3, 3.8, 6.1, 6.2, 6.4, 6.8, 7.1, 7.2, 7.3, 7.4, 7.5 and 7.6 may only be
amended, after a majority of the Trustees then in office have approved a
resolution therefor, by the affirmative vote of the holders of not less than 75%
of the affected Shares outstanding on the record date.
(b) Nothing contained in
this Declaration shall permit the amendment of this Declaration to impair the
exemption from personal liability of the Shareholders, Trustees, officers,
employees and agents of the Trust or to permit assessments upon
Shareholders.
(c) An amendment duly
adopted by the requisite vote of the Board of Trustees and, if required,
Shareholders as aforesaid, shall become effective at the time of such adoption
or at such other time as may be designated by the Board of Trustees or
Shareholders, as the case may be. A certification signed by a
majority of the Trustees setting forth an amendment and reciting that it was
duly adopted by the Trustees and, if required, Shareholders as aforesaid, or a
copy of the Declaration, as amended, and executed by a majority of the Trustees,
shall be conclusive evidence of such amendment when lodged among the records of
the Trust or at such other time designated by the Trustees.
Notwithstanding any other provision
hereof, until such time as Shares are issued and outstanding, this Declaration
may be terminated or amended in any respect by the affirmative vote of a
majority of the Trustees or by an instrument signed by a majority of the
Trustees then in office.
7.4 Merger, Consolidation and
Sale of Assets. Subject to Section 7.6, the Trust may merge or
consolidate with any other corporation, association, trust or other organization
or may sell, lease or exchange all or substantially all of the Trust Property or
the property, including its good will or may convert into another form of
organization, upon such terms and conditions and for such consideration when and
as authorized by two-thirds of the Trustees then in office and thereafter
approved by the affirmative vote of the holders of not less than 75% (a majority
(as defined in Section 6.4(b)) in the event the provisions of the governing
instruments of the entity resulting from such transaction or, in the case of a
sale or exchange of assets, the acquiring entity contain substantially the same
provisions as Sections 2.2, 2.3, 3.8, 6.1, 6.2, 6.4, 6.8, 7.1, 7.2, 7.3, 7.4,
7.5 and 7.6 of this Declaration) of the affected Shares outstanding on the
record date for the meeting of Shareholders to approve such transaction, and any
such merger, consolidation, sale, lease, exchange or conversion shall be
determined for all purposes to have been accomplished under and pursuant to the
statutes of the State of Delaware.
22
7.5 Redemption;
Conversion. No holder of Shares of any class or series, other
than in accordance with the provisions of Section 23(c) (excluding Rule 23c-3
thereunder) of the 1940 Act and other than to the extent expressly determined by
the Trustees with respect to Shares qualifying as preferred stock pursuant to
Section 18(a) of the 1940 Act, shall have any right to require the Trust or any
person controlled by the Trust to purchase any of such holder's
Shares. The Trust may be converted at any time from a "closed-end
investment company" to an "open-end investment company" as those terms are
defined by the 1940 Act or a company obligated to repurchase shares under Rule
23c-3 of the 1940 Act (an "interval company"), upon the approval of such a
proposal, together with the necessary amendments to this Declaration to permit
such a conversion, by two-thirds of the Trustees then in office, by the holders
of not less than 75% of the Trust's outstanding Shares entitled to vote thereon
and by such vote or votes of the holders of any class or classes or series of
Shares as may be required by the 1940 Act. From time to time, the
Trustees may consider recommending to the Shareholders a proposal to convert the
Trust from a "closed-end company" to an "open-end company" or "interval
company." Upon the recommendation and subsequent adoption of such a
proposal and the necessary amendments to this Declaration to permit such a
conversion by the requisite proportion of the Trust's outstanding Shares
entitled to vote, the Trust shall, upon complying with any requirements of the
1940 Act and state law, become an "open-end investment company".
7.6 Certain
Transactions. (a) Subject to the exceptions
provided in paragraph (d) of this Section, the types of transactions described
in paragraph (c) of this Section shall, following the completion of the initial
public offering of the common Shares, require the affirmative vote or consent of
the holders of 80% of the Shares of each class outstanding and entitled to vote,
voting as a separate class, when a Principal Shareholder (as defined in
paragraph (b) of this Section) is a party to the transaction. Such
affirmative vote or consent shall be in addition to the vote or consent of the
holders of Shares otherwise required by or pursuant to the 1940 Act, this
Declaration, the Bylaws or resolution of the Board of Trustees.
(b) The term "Principal
Shareholder" shall mean any Person which is the beneficial owner, directly or
indirectly, of five percent (5%) or more of the outstanding Shares and shall
include any affiliate or associate, as such terms are defined in clause (ii)
below, of such Person. For the purposes of this Section, in addition
to the Shares which a Person beneficially owns directly, (a) any Person shall be
deemed to be the beneficial owner of any Shares (i) which it has the right to
acquire pursuant to any agreement or upon exercise of conversion rights or
warrants, or otherwise (but excluding share options granted by the Trust) or
(ii) which are beneficially owned, directly or indirectly (including Shares
deemed owned through application of clause (i) above), by any other Person with
which its "affiliate" or "associate" (as defined below) has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of Shares, or which is its "affiliate" or "associate" as those terms
are defined in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934 as in effect on the date of initial adoption of
this Declaration, and (b) the
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outstanding
Shares shall include Shares deemed owned through application of clauses (i) and
(ii) above but shall not include any other Shares which may be issuable pursuant
to any agreement, or upon exercise of conversion rights or warrants, or
otherwise.
(c) This Section shall
apply to the following transactions:
(i) The
merger or consolidation of the Trust or any subsidiary of the Trust with or into
any Principal Shareholder.
(ii) The
issuance of any securities of the Trust to any Principal Shareholder for cash
(other than pursuant to any automatic dividend reinvestment plan or pursuant to
any offering in which such Principal Shareholder acquires securities that
represent no greater a percentage of any class or series of securities being
offered than the percentage of the same class or series of securities
beneficially owned by such Principal Shareholder immediately prior to such
offering or, in the case of a class or series not then owned beneficially by
such Principal Shareholder, the percentage of Common Shares beneficially owned
by such Principal Shareholder immediately prior to such offering).
(iii) The
sale, lease or exchange of all or any substantial part of the assets of the
Trust to any Principal Shareholder (except assets having an aggregate fair
market value of less than $5,000,000, aggregating for the purpose of such
computation all assets sold, leased or exchanged in any series of similar
transactions within a twelve-month period).
(iv) The
sale, lease or exchange to the Trust or any subsidiary thereof, in exchange for
securities of the Trust of any assets of any Principal Shareholder (except
assets having an aggregate fair market value of less than $5,000,000,
aggregating for the purposes of such computation all assets sold, leased or
exchanged in any series of similar transactions within a twelve-month
period).
(v) The
purchase by the Trust or any Person controlled by the Trust of any Common Shares
of the Trust from such Principal Shareholder or any person to whom such
Principal Shareholder shall have knowingly transferred such Common Shares other
than pursuant to a tender offer available to all Shareholders of the same class
or series in which such Principal Shareholder or transferee tenders no greater
percentage of the Shares of such class or series than are tendered by all other
Shareholders of such class or series in the aggregate.
(d) The provisions of this
Section shall not be applicable to (i) any of the transactions described in
paragraph (c) of this Section if two-thirds of the Board of Trustees then in
office shall by resolution have approved a memorandum of understanding or
agreement with such Principal Shareholder with respect to and substantially
consistent with such transaction prior to the time such Person shall have become
a Principal Shareholder, or (ii) any such transaction with any corporation of
which a majority of the outstanding shares of all classes of a stock normally
entitled to
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vote
in elections of directors is owned of record or beneficially by the Trust and
its subsidiaries and of which such Person is not a Principal
Shareholder.
(e) The Board of Trustees
shall have the power and duty to determine for the purposes of this Section on
the basis of information known to the Trust whether (i) a Person
beneficially owns five percent (5%) or more of the outstanding Shares,
(ii) a Person is an "affiliate" or "associate" (as defined above) of
another, (iii) the assets being acquired or leased to or by the Trust or any
subsidiary thereof constitute a substantial part of the assets of the Trust and
have an aggregate fair market value of less than $5,000,000, and (iv) the
memorandum of understanding or agreement referred to in paragraph (d) hereof is
substantially consistent with the transaction covered thereby. Any
such determination shall be conclusive and binding for all purposes of this
Section.
ARTICLE
VIII
Miscellaneous
8.1 Filing. This
Declaration and any amendment (including any supplement) hereto shall be filed
in such places as may be required or as the Trustees deem
appropriate. Each amendment shall be accompanied by a certificate
signed and acknowledged by a Trustee stating that such action was duly taken in
a manner provided herein, and shall, upon insertion in the Trust's minute book,
be conclusive evidence of all amendments contained therein. A
restated Declaration, containing the original Declaration as amended by all
amendments theretofore made, may be executed from time to time by a majority of
the Trustees and shall, upon insertion in the Trust's minute book, be conclusive
evidence of all amendments contained therein and may thereafter be referred to
in lieu of the original Declaration and the various amendments
thereto.
8.2 Resident
Agent. The Trust shall maintain a resident agent in the State
of Delaware, which agent shall initially be The Corporation Trust Company, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Trustees may designate
a successor resident agent, provided, however, that such appointment shall not
become effective until written notice thereof is delivered to the office of the
Secretary of the State.
8.3 Governing
Law. This Declaration is executed by a majority of the
Trustees and delivered in the State of Delaware and with reference to the laws
thereof, and the rights of all parties and the validity and construction of
every provision hereof shall be subject to and construed according to the laws
of said State and reference shall be specifically made to the business
corporation law of the State of Delaware as to the construction of matters not
specifically covered herein or as to which an ambiguity exists, although such
law shall not be viewed as limiting the powers otherwise granted to the Trustees
hereunder and any ambiguity shall be viewed in favor of such
powers.
8.4 Counterparts. This
Declaration may be simultaneously executed in several counterparts, each of
which shall be deemed to be an original, and such
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counterparts,
together, shall constitute one and the same instrument, which shall be
sufficiently evidenced by any such original counterpart.
8.5 Reliance by Third
Parties. Any certificate executed by an individual who,
according to the records of the Trust, or of any recording office in which this
Declaration may be recorded, appears to be a Trustee hereunder, certifying
to: (a) the number or identity of Trustees or Shareholders, (b) the
name of the Trust, (c) the due authorization of the execution of any instrument
or writing, (d) the form of any vote passed at a meeting of Trustees or
Shareholders, (e) the fact that the number of Trustees or Shareholders present
at any meeting or executing any written instrument satisfies the requirements of
this Declaration, (f) the form of any By Laws adopted by or the identity of any
officers elected by the Trustees, or (g) the existence of any fact or facts
which in any manner relate to the affairs of the Trust, shall be conclusive
evidence as to the matters so certified in favor of any person dealing with the
Trustees and their successors.
8.6 Provisions in Conflict
with Law or Regulation.
(a) The provisions of this
Declaration are severable, and if the Trustees shall determine, with the advice
of counsel, that any of such provisions is in conflict with the 1940 Act, the
regulated investment company provisions of the Code or with other applicable
laws and regulations, the conflicting provision shall be deemed never to have
constituted a part of this Declaration to the extent of such conflict; provided,
however, that such determination shall not affect any of the remaining
provisions of this Declaration or render invalid or improper any action taken or
omitted prior to such determination.
(b) If any provision of
this Declaration shall be held invalid or unenforceable in any jurisdiction,
such invalidity or unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provision in any other
jurisdiction or any other provision of this Declaration in any
jurisdiction.
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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.
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