GLADSTONE ALTERNATIVE INCOME FUND AMENDED AND RESTATED DECLARATION AND AGREEMENT OF TRUST Effective as of October 1, 2024
GLADSTONE ALTERNATIVE INCOME FUND
AMENDED AND RESTATED DECLARATION AND AGREEMENT OF TRUST
Effective as of October 1, 2024
TABLE OF CONTENTS
ARTICLE I NAME AND DEFINITIONS |
1 | |||||
Section I.1 |
Name | 1 | ||||
Section I.2 |
Definitions | 1 | ||||
ARTICLE II PURPOSE |
3 | |||||
Section II.1 |
Purpose | 3 | ||||
ARTICLE III TRUSTEES |
3 | |||||
Section III.1 |
Powers | 3 | ||||
Section III.2 |
Legal Title | 6 | ||||
Section III.3 |
Number of Trustees; Term of Office | 7 | ||||
Section III.4 |
Election of Trustees | 7 | ||||
Section III.5 |
Resignation and Removal | 7 | ||||
Section III.6 |
Vacancies | 7 | ||||
Section III.7 |
Committees; Delegation | 8 | ||||
Section III.8 |
Quorum; Voting | 8 | ||||
Section III.9 |
Action Without a Meeting; Participation by Conference Telephone or Otherwise | 9 | ||||
Section III.10 |
By-Laws | 9 | ||||
Section III.11 |
No Bond Required | 9 | ||||
Section III.12 |
Reliance on Experts, Etc. | 9 | ||||
Section III.13 |
Fiduciary Duty | 9 | ||||
ARTICLE IV CONTRACTS |
10 | |||||
Section IV.1 |
Distribution Contract | 10 | ||||
Section IV.2 |
Advisory or Management Contracts | 10 | ||||
Section IV.3 |
Affiliations of Trustees or Officers, Etc. | 10 | ||||
10 | ||||||
Section V.1 |
No Personal Liability of Shareholders, Trustees, Etc. | 10 | ||||
Section V.2 |
Execution of Documents; Notice; Apparent Authority | 11 | ||||
Section V.3 |
Indemnification of Trustees, Officers, Etc. | 11 | ||||
ARTICLE VI SHARES OF BENEFICIAL INTEREST |
13 | |||||
Section VI.1 |
Beneficial Interest | 13 | ||||
Section VI.2 |
Other Securities | 13 |
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Section VI.3 |
Initial Designation of Classes | 13 | ||||
Section VI.4 |
Rights of Shareholders | 13 | ||||
Section VI.5 |
Trust Only | 14 | ||||
Section VI.6 |
Issuance of Shares | 14 | ||||
Section VI.7 |
Register of Shares | 14 | ||||
Section VI.8 |
Share Certificates | 15 | ||||
Section VI.9 |
Transfer of Shares | 15 | ||||
Section VI.10 |
Voting Powers | 15 | ||||
Section VI.11 |
Meetings of Shareholders | 16 | ||||
Section VI.12 |
Action Without a Meeting | 16 | ||||
Section VI.13 |
Quorum and Required Vote | 16 | ||||
Section VI.14 |
Delivery by Electronic Transmission or Otherwise | 16 | ||||
Section VI.15 |
Additional Provisions | 16 | ||||
Section VI.16 |
Removal of Trustees by Shareholders | 16 | ||||
ARTICLE VII REPURCHASE AND REDEMPTION OF COMMON SHARES |
17 | |||||
Section VII.1 |
Repurchase of Shares | 17 | ||||
Section VII.2 |
Price | 17 | ||||
Section VII.3 |
Repurchase by Agreement | 17 | ||||
Section VII.4 |
Involuntary Redemption; Disclosure of Ownership | 17 | ||||
ARTICLE VIII DETERMINATION OF NET ASSET VALUE; DISTRIBUTIONS |
18 | |||||
Section VIII.1 |
By Whom Determined | 18 | ||||
ARTICLE IX DURATION; DISSOLUTION AND TERMINATION OF TRUST; AMENDMENT; MERGERS, ETC | 19 | |||||
Section IX.1 |
Duration and Termination | 19 | ||||
Section IX.2 |
Amendment Procedure | 20 | ||||
Section IX.3 |
Merger, Consolidation and Sale of Assets | 20 | ||||
Section IX.4 |
Conversion to Other Business Entities | 20 | ||||
Section IX.5 |
Incorporation | 21 | ||||
ARTICLE X MISCELLANEOUS |
21 | |||||
Section X.1 |
Registered Agent; Registered Office | 21 | ||||
Section X.2 |
Governing Law | 21 | ||||
Section X.3 |
Counterparts | 22 | ||||
Section X.4 |
Reliance by Third Parties | 22 |
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Section X.5 |
Provisions in Conflict with Law or Regulations | 22 | ||||
Section X.6 |
Use of Name | 22 | ||||
Section X.7 |
Derivative Actions | 23 | ||||
Section X.8 |
General Direct Actions | 24 | ||||
Section X.9 |
Inspection of Records and Reports | 24 | ||||
Section X.10 |
Exclusive Delaware Jurisdiction | 24 | ||||
Section X.11 |
Waiver of Jury Trial | 25 | ||||
Section X.12 |
Conversion | 25 | ||||
Section X.13 |
Section Headings; Interpretation | 26 |
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AMENDED AND RESTATED DECLARATION AND AGREEMENT OF TRUST
OF
GLADSTONE ALTERNATIVE INCOME FUND
AMENDED AND RESTATED DECLARATION AND AGREEMENT OF TRUST made effective as of October 1, 2024 by and among the individuals executing this Declaration (as defined below) as Trustees and the holders from time to time of the shares of beneficial interest issued hereunder.
ARTICLE I
Section I.1 Name. The name of the trust governed hereby is “Gladstone Alternative Income Fund,” in which name, or other name from time to time as the Trustees may determine, the Trustees shall conduct the business and activities of the Trust and execute all documents and take all actions authorized herein. The Trustees may, without Shareholder approval, change the name of the Trust or any class and adopt such other name as they deem proper.
“Affiliate” shall have the meaning of “Affiliated Person” set forth in Section 2(a)(3) of the 1940 Act.
“By-Laws” shall mean the By-Laws of the Trust as amended from time to time;
“class” or “class of Shares” shall refer to the division of Shares into two or more classes as provided in Article VI hereof.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Commission” shall mean the Securities and Exchange Commission.
“Common Shares” shall mean Shares that do not have preference over any other class of Shares with respect to the payment of dividends or distributions upon liquidation, termination or winding up of the affairs of the Trust.
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“Declaration” shall mean this Amended and Restated Declaration and Agreement of Trust as amended from time to time. This Declaration and any By-Laws of the Trust shall constitute the governing instrument of the Trust.
“Delaware Act” shall mean Chapter 38 of Title 12 of the Delaware Code entitled “Treatment of Delaware Statutory Trusts,” as it may be amended from time to time.
“Delaware General Corporation Law” shall mean the Delaware General Corporation Law, 8 Del. C. § 100, et seq., as amended from time to time.
“Distributor” shall have the meaning set forth in Section IV.1.
“General Direction Action” shall mean an action, suit or other proceeding asserting a direct claim of any nature whatsoever (regardless of whether such claim sounds in contract, tort, fraud or otherwise or is based on common law, statutory, equitable, legal or other grounds) where the harm alleged falls upon all Shareholders or all Shareholders of a series or class (and not an individual harm only to the Shareholder or Shareholders bringing such action, suit or other proceeding) on a pro rata basis and/or proportionally based on their holdings of Shares.
“Investment Adviser” shall have the meaning set forth in Section IV.2.
“Majority Shareholder Vote” (i) with respect to matters voted upon by all Shareholders voting as a single class, shall have the meaning of “majority of the outstanding voting securities of a company” set forth in section 2(a)(42) of the 1940 Act; and (ii) with respect to any other matter required to be submitted to the outstanding voting Shares, shall have the meaning of “majority of the outstanding voting securities” of a class or series set forth in Rule 18f-2(h) under the 1940 Act.
“1940 Act” shall mean the Investment Company Act of 1940, as amended from time to time, and the rules and regulations thereunder, and any order or orders thereunder which may from time to time be applicable to the Trust. References herein to specific sections of the 1940 Act shall be deemed to include such rules and regulations as are applicable to such sections as determined by the Trustees or their designees.
“Person” shall mean an individual, a company, a corporation, partnership, trust (statutory or common law), or association, a joint venture, an organization, a business, a firm or other entity, whether or not a legal entity, or a country, a state, municipality or other political subdivision or any governmental agency or instrumentality.
“Principal Underwriter” shall have the meaning set forth in Section 2(a)(29) of the 1940 Act.
“series” or “series of Shares” shall refer to the division of Shares into two or more series as provided in Article VI hereof.
“Shareholder” shall mean a record owner of Shares.
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“Shares” shall mean the units of interest into which the beneficial interest in the Trust (or, if more than one series or class is authorized, each series or class thereof) shall be divided from time to time and includes fractions of Shares as well as whole Shares.
“Trust” shall mean the Delaware statutory trust established under the Delaware Act by this Declaration, as from time to time amended. All provisions herein relating to the Trust shall apply equally to each series or class of Shares except as the context otherwise requires.
“Trustees” shall mean the individuals who have signed this Declaration, so long as they shall continue in office in accordance with the terms hereof, and all other individuals who may from time to time be duly elected or appointed, qualified and serving as Trustees in accordance with the provisions of Article III hereof, and reference herein to a Trustee or the Trustees shall refer to such person or persons in their capacity or capacities as trustees hereunder. Unless otherwise required by the context or specifically provided, any reference herein to the Trustees shall refer to the sole Trustee at any time that there is only one Trustee of the Trust.
“Trust Property” shall mean any and all property, real or personal, tangible or intangible, which is owned or held by or for the account of the Trust or the Trustees.
ARTICLE II
ARTICLE III
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Without limiting the foregoing, the Trustees shall have the power:
(a) To enter into contracts of any nature related to the business of the Trust.
(b) To invest and reinvest cash, to hold cash uninvested, and to subscribe for, invest in, reinvest in, purchase or otherwise acquire, own, hold, pledge, sell, assign, transfer, exchange, distribute, purchase or write options on, lend, enter into contracts for the future acquisition or delivery of, or otherwise deal in or dispose of, securities, indices, currencies, commodities or other property of every nature and kind, including, without limitation, all types of bonds, debentures, stocks, negotiable or non-negotiable instruments, obligations, evidences of indebtedness, certificates of deposit or indebtedness, commercial paper, repurchase agreements, bankers acceptances, and other securities, commodities or contracts of any kind, issued, created, guaranteed, or sponsored by any and all Persons, including, without limitation, states, territories, and possessions of the United States and the District of Columbia and any political subdivision, agency, or instrumentality thereof, the U.S. Government or any foreign government or any political subdivision of the U.S. Government or any foreign government, or any domestic or international instrumentality, or by any bank or savings institution, or by any corporation or organization organized under the laws of the United States or of any state, territory, or possession thereof, or by any corporation or organization organized under any foreign law, or in “when issued” contracts for any such securities; to change the investments of the assets of the Trust; 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 instruments.
(c) To appoint agents and employees of the Trust, which agents and employees may be designated as officers of the Trust with corresponding titles as the Trustees may determine in their discretion.
(d) To exercise all rights, powers and privileges of ownership or interest in all securities included in the Trust Property, including the right to vote, give assent, execute and deliver proxies or powers of attorney to such person or persons as the Trustees shall deem proper and otherwise act with respect thereto and to do all acts for the preservation, protection, improvement and enhancement in value of all such securities and to delegate, assign, waive or otherwise dispose of any of such rights, powers or privileges.
(e) To exercise powers and rights of subscription or otherwise which in any manner arise out of the Trust’s ownership of securities.
(f) To declare and pay dividends and distributions to Shareholders.
(g) To acquire (by purchase, lease or otherwise) and to hold, use, maintain, develop and dispose of (by sale, lease or otherwise) any property, real or personal, and any interest therein.
(h) To borrow money, and in this connection to issue notes or other evidences of indebtedness; to secure borrowings by mortgaging, pledging or otherwise subjecting the Trust Property to security interests; and to lend Trust Property.
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(i) To aid by further investment any Person, if any obligation of or interest in such Person is included in the Trust Property or if the Trustees have any direct or indirect interest in the affairs of such Person; to do anything designed to preserve, protect, improve or enhance the value of such obligation or interest; and to endorse or guarantee or become surety on any or all of the contracts, stocks, bonds, notes, debentures and other obligations of any such Person; and to mortgage the Trust Property or any part thereof to secure any of or all such obligations.
(j) To enter into joint ventures, general or limited partnerships and any other combinations or associations.
(k) To purchase and pay for entirely out of Trust Property liability, casualty, property and other insurance, including, without limitation, insurance policies insuring the Shareholders, Trustees, officers, employees and agents of the Trust, the Investment Adviser, the Distributor and dealers or independent contractors of the Trust against all claims and liabilities of every nature arising by reason of holding or having held any such position or by reason of any action taken or omitted by any such Person in such capacity, whether or not constituting negligence, whether or not the Trust would have the power, under provisions of applicable law, to indemnify such Person against such liability.
(l) To establish and carry out pension, profit-sharing, share purchase, share bonus, savings, thrift and other retirement, incentive and benefit plans for any Trustees, officers, employees or agents of the Trust.
(m) To the extent permitted by law and determined by the Trustees, to indemnify any Person with whom the Trust has dealings, including, without limitation, the Shareholders, the Trustees, the officers, employees and agents of the Trust, the Investment Adviser, the Distributor, the transfer agent, the custodian and dealers.
(n) To incur and pay any charges, taxes and expenses which in the opinion of the Trustees are necessary or incidental to or proper for carrying out any of the purposes of this Trust, and to pay from the funds of the Trust Property to themselves as Trustees reasonable compensation and reimbursement for expenses.
(o) To prosecute or abandon and to compromise, arbitrate or otherwise adjust claims in favor of or against the Trust or any matter in controversy, including but not limited to claims for taxes.
(p) To exercise the right to consent, and to enter into releases, agreements and other instruments, including, but not limited to, the right to consent or participate in any plan for the reorganization, consolidation or merger of any corporation or issuer any security of which is or was held by the Trust; to consent to any contract, lease, mortgage, purchase or sale of such property by said corporation or issuer, and to pay calls or subscriptions with respect to securities held by the Trust.
(q) To join with other security holders in acting through a committee, depository, voting trustee or otherwise, and in that connection to deposit any security with, or transfer any security to, any such committee, depository or trustee, and to delegate to them such power and authority with relation to any security (whether or not so deposited or transferred) as the Trustees shall deem proper, and to agree to pay, and to pay, such portion of the expenses and compensation of such committee, depository or trustee as the Trustees shall deem proper.
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(r) To employ or contract with such Persons as the Trustees may deem desirable for the transaction of the business of the Trust.
(s) To 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.
(t) To employ one or more custodians of the assets of the Trust and authorize such custodians to employ subcustodians and to deposit all or any part of such assets in a system or systems for the central handling of securities.
(u) To retain a transfer or similar agent or a shareholder servicing agent, or both.
(v) To provide for the issuance and distribution of Shares by the Trust directly or through one or more Principal Underwriters, or both, or otherwise, including pursuant to one or more distribution plans of any kind.
(w) To interpret the investment policies, practices or limitations of the Trust.
(x) To set record dates for the determination of Shareholders with respect to various matters.
(y) To take such actions as are authorized, incidental or required to be taken by the Trustees pursuant to other provisions of this Declaration.
(z) To engage in any other lawful act or activity in which statutory trusts organized under the laws of State of Delaware may engage, including, but not limited to, any and all acts permitted of a closed-end company and “interval fund” under the 1940 Act.
The foregoing enumeration of specific powers shall not be held to limit or restrict in any manner the general powers of the Trustees.
The Trustees have the power to construe and interpret this Declaration and to act upon any such construction or interpretation. To the fullest extent permitted by law, any construction or interpretation of this Declaration by the Trustees and any action taken pursuant thereto and any determination as to what is in the interests of the Trust and the Shareholders made by the Trustees in good faith shall, in each case, be conclusive and binding on all Shareholders and all other Persons for all purposes.
The Trustees shall not be limited by any law now or hereafter in effect limiting the investments which may be made or retained by fiduciaries, but they shall have full power and authority to make any and all investments within the limitation of this Declaration that they, in their sole and absolute discretion, shall determine, and without liability for loss even though such investments do not or may not produce income or are of a character or in an amount not considered proper for the investment of trust funds. Unless otherwise expressly provided herein or required by federal law including the 1940 Act, the Trustees shall act in their sole discretion and may take any action or exercise any power without any vote or consent of the Shareholders.
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cause legal title to any Trust Property to be held by or in the name of one or more of the Trustees with suitable reference to their trustee status, or in a form not indicating any trust, whether in bearer, unregistered or other negotiable form, or in the name of a custodian or subcustodian or a nominee or nominees or otherwise. No creditor of any Trustee shall have any right to obtain possession, or otherwise exercise legal or equitable remedies with respect to, any Trust Property with respect to any claim against, or obligation of, such Trustee in its individual capacity and not related to the Trust. To the extent title to the Trust Property has been vested in the Trustees, 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 the resignation, retirement, removal, declination to serve, incapacity, or death of a Trustee, such Trustee shall automatically cease to have any right, title or interest in any of the Trust Property, and the right, title and interest of such Trustee in the Trust Property shall vest automatically in the remaining Trustees. Such vesting and cessation of title shall be effective whether or not conveyancing documents have been executed and delivered.
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(a) to change the principal office of the Trust;
(b) to amend the By-Laws;
(c) to issue Shares of any series or class;
(d) to elect or remove from office any Trustee or the Chair of the Board of Trustees, the President, the Chief Financial Officer, the Treasurer or the Secretary of the Trust;
(e) to increase or decrease the number of Trustees;
(f) to declare a dividend or other distribution on the Shares of any series or class; or
(g) to authorize any merger, consolidation or sale, lease or exchange of all or substantially all of the Trust Property.
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ARTICLE IV
ARTICLE V
LIMITATION OF LIABILITY; INDEMNIFICATION
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whatsoever other than such as the Shareholder may at any time personally agree to pay by way of subscription for any Shares or otherwise. All Persons extending credit to, contracting with or having any claim against the Trust shall look only to the assets of the Trust for payment under such credit, contract or claim, and neither the Shareholders nor the Trustees, nor any of the Trust’s officers, employees or agents, whether past, present or future, shall be personally liable therefor. No Trustee, officer, employee or agent of the Trust shall be subject to any personal liability whatsoever to any person other than the Trust or the Shareholders in connection with the Trust Property or the acts, obligations or affairs of the Trustees or the Trust. The Trustees shall not be responsible or liable to the Trust or the Shareholders for any neglect or wrongdoing of any officer, employee or agent (including, without limitation, the Investment Advisers, the Distributor, the custodian and the transfer agent) of the Trust, nor shall any Trustee be responsible or liable for the act or omission of any other Trustee. No Trustee, officer, employee or agent of the Trust shall be liable to the Trust or to any Shareholder, Trustee, officer, employee, or agent of the Trust, including for any action or failure to act (including without limitation the failure to compel in any way any former or acting Trustee to redress any breach of trust) except for his or her own bad faith, willful misfeasance (within the meaning of Section 17(h) of the 1940 Act), gross negligence or reckless disregard of his or her duties involved in the conduct of his or her office and shall not be liable for errors of judgment or mistakes of fact or law.
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which they may be or may have been involved as a party or otherwise or with which they may be or may have been threatened, while acting as Trustee or as an officer, employee or agent of the Trust or the Trustees, as the case may be, or thereafter, by reason of them being or having been such a Trustee, officer, employee or agent or otherwise relating to any act, omission, or obligation of the Trust. No individual shall be indemnified hereunder against any liability to the Trust or the Shareholders by reason of willful misfeasance (within the meaning of Section 17(h) of the 1940 Act), bad faith, gross negligence or reckless disregard of the duties involved in the conduct of their office. In addition, no such indemnity shall be provided with respect to any matter disposed of by settlement or a compromise payment by such Trustee, officer, employee or agent of the Trust, pursuant to a consent decree or otherwise, either for said payment or for any other expenses unless there has been a determination that such Person did not engage in willful misfeasance (within the meaning of Section 17(h) of the 1940 Act), bad faith, gross negligence or reckless disregard of the duties involved in the conduct of their office. All determinations that the applicable standards of conduct have been met for indemnification hereunder shall be made by (a) a majority vote of a quorum consisting of disinterested Trustees who are not parties to the proceeding relating to indemnification, or (b) if such a quorum is not obtainable or, even if obtainable, if a majority vote of such quorum so directs, by independent legal counsel in a written opinion, or (c) a vote of Shareholders (excluding Shares owned of record or beneficially by such individual). In addition, unless a matter is disposed of with a court determination (i) on the merits that such Trustee, officer, employee or agent was not liable or (ii) that such Person was not guilty of willful misfeasance (within the meaning of Section 17(h) of the 1940 Act), bad faith, gross negligence or reckless disregard of the duties involved in the conduct of their office, no indemnification shall be provided hereunder unless there has been a determination by independent legal counsel in a written opinion or by vote of a majority of the disinterested Trustees that such Person did not engage in willful misfeasance (within the meaning of Section 17(h) of the 1940 Act), bad faith, gross negligence or reckless disregard of the duties involved in the conduct of their office, based upon a review of readily available facts (as opposed to a full trial-type inquiry). The rights of indemnification herein provided may be insured against by policies maintained by the Trust, shall be severable, shall not affect any other rights to which any Trustees, officers, employees and agents may now or hereafter be entitled, shall continue as to a person who has ceased to be a Trustee, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such person. Nothing contained herein shall affect any rights to indemnification to which personnel, including Trustees, officers, employees and agents, may be entitled by contract or otherwise under law.
The Trustees may make advance payments out of the assets of the Trust in connection with the expense of defending any action with respect to which indemnification might be sought under this Section V.3. The indemnified Trustee, officer, employee or agent of the Trust shall give a written undertaking to reimburse the Trust in the event it is subsequently determined that they are not entitled to such indemnification and (a) the indemnified Trustee, officer, employee or agent of the Trust shall provide security for their undertaking, (b) the Trust shall be insured against losses arising by reason of lawful advances, or (c) a majority of a quorum of disinterested Trustees or an independent legal counsel in a written opinion shall determine, based on a review of readily available facts (as opposed to a full trial-type inquiry), that there is reason to believe that the indemnitee ultimately will be found entitled to indemnification. The rights accruing to any Trustee,
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officer, employee or agent of the Trust under these provisions shall not exclude any other right to which they may be lawfully entitled and shall inure to the benefit of their heirs, executors, administrators or other legal representatives. In making a determination under Section V.3, the disinterested trustees or legal counsel making the determinations shall afford the Trustee, officer, employee or agent a rebuttable presumption that the Trustee, officer, employee or agent has not engaged in bad faith, willful misfeasance, gross negligence or reckless disregard of the duties involved in the conduct of the Trustee, officer, employee or agent’s office.
ARTICLE VI
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a Shareholder shall be held to have expressly assented and agreed to the terms hereof and to have become a party hereto. The right to conduct any business hereinbefore 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 suffer an assessment of any kind by virtue of their ownership of Shares. The death of a Shareholder during the continuance of the Trust shall not operate to terminate the Trust nor to entitle the legal representative of such Shareholder to an accounting or to take any action in any court or otherwise against other Shareholders or the Trustees or the Trust Property, but only to the rights of such Shareholder hereunder. The Shares shall not entitle the holder to preference, preemptive, appraisal, conversion or exchange rights, except as the Trustees may otherwise approve, including pursuant to Section VI.2.
Section VI.6 Issuance of Shares.
Section VI.6.1 General. The Trustees may from time to time without vote of the Shareholders issue and sell or cause to be issued and sold Shares. All such Shares, when issued in accordance with the terms of this Section VI.6, shall be fully paid and nonassessable.
Section VI.6.2 On Merger or Consolidation. In connection with the acquisition of assets (including the acquisition of assets subject to, and in connection with the assumption of, liabilities), businesses or stock of another Person, the Trustees may issue or cause to be issued Shares and accept in payment therefor, in lieu of cash, such assets or businesses at their market value (as determined by the Trustees) or such stock at the market value (as determined by the Trustees) of the assets held by such other Person, either with or without adjustment for contingent costs or liabilities, provided that the funds of the Trust are permitted by law to be invested in such assets, businesses or stock.
Section VI.6.3 Fractional Shares. The Trustees may issue and sell fractions of Shares having pro rata all the rights of full Shares, including, without limitation, the right to vote and to receive dividends and distributions.
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investment companies. Such register shall be conclusive as to who are the holders of the Shares and who shall be entitled to receive dividends or distributions or otherwise to exercise or enjoy the rights of Shareholders of each series or class. No Shareholder shall be entitled to receive payment of any dividend or distribution, nor to have notice given to such Shareholder as herein or in the By-Laws provided, until they have given their address to the transfer agent or such other officer or agent of the Trust as shall keep the said register for entry thereon.
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at a meeting called for such purpose. Notwithstanding the provisions of Section VI.11 hereof, the Trustees shall comply at all times with the provisions of the 1940 Act, including without limitation Section 16(c) thereof or any successor section, pertaining to the removal of Trustees by Shareholders.
ARTICLE VII
REPURCHASE AND REDEMPTION OF COMMON SHARES
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(i) to call for redemption a number of Common Shares sufficient in the opinion of the Trustees to (A) maintain or bring the direct or indirect ownership of Common Shares into conformity with the requirements for such qualification or (B) avoid or to continue to avoid the treatment of the Trust as a personal holding company under the Code, and
(ii) to refuse to transfer or issue Common Shares to any Person whose acquisition of the Shares in question would in the opinion of the Trustees result in such disqualification or treatment.
Any redemption pursuant to this Section VII.4 shall be effected at net asset value determined in accordance with Section VIII.1 below.
(b) The holders of Common Shares of the Trust shall, upon request, disclose to the Trustees in writing such information with respect to direct and indirect ownership of Common Shares of the Trust as the Trustees deem necessary to comply with the provisions of the Code, United States Treasury regulations, or with the requirements of any other taxing authority.
(c) The Trustees shall have the power to redeem Common Shares in any Shareholder’s account at a redemption price determined in accordance with Section VIII.1 below if at any time the total number of Common Shares held in such account is fewer than an established minimum selected by the Trustees, in which event the Shareholder shall be notified that the number of Common Shares in the account is fewer than the minimum and shall be allowed a period, fixed by the Trustees, in which to avoid such redemption by increasing the account to at least the established minimum.
ARTICLE VIII
DETERMINATION OF NET ASSET VALUE; DISTRIBUTIONS
Section VIII.1 By Whom Determined. (a) Subject to applicable federal law, including the 1940 Act, and Article VI hereof, the Trustees, in their sole discretion, may prescribe (and delegate to any officer of the Trust or any other Person or Persons the right and obligation to prescribe) such bases and time (including any methodology or plan) for determining the per Share or net asset value of the Common Shares of the Trust or any series or classes thereof or net income attributable to the Common Shares of the Trust or any series or classes thereof, or the declaration and payment of dividends and distributions on the Shares of the Trust or any series or classes thereof and the method of determining the Shareholders to whom dividends and distributions are payable, as they may deem necessary or desirable. The Trustees may suspend the determination of net asset value to the extent permitted by the 1940 Act or the regulations and orders from time to time in effect thereunder.
(b) Without limiting the powers of the Trustees under Section III.1 of Article III hereof, the Trustees may at any time and from time to time, as they may determine, allocate or distribute to Shareholders such income and capital gains, accrued or realized, or returns of capital as the Trustees may determine, after providing for actual, accrued or estimated expenses and liabilities (including reserves) determined in accordance with generally accepted accounting practices. Without limiting the generality of the foregoing, but subject to applicable federal law, including the 1940 Act, any dividend or distribution may be paid in cash and or securities or other
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property, and the composition of any such distribution shall be determined by the Trustees (or by any officer of the Trust or any other Person or Persons to whom such authority has been delegated by the Trustees) and may be different among Shareholders including differences among Shareholders of the same series or class. The Trustees may adopt and offer to Shareholders such dividend reinvestment plans, cash dividend payout plans or related plans as the Trustees shall deem appropriate.
(c) Inasmuch as the computation of net income and gains for Federal income and excise tax purposes may vary from the computation thereof on the books of the Trust, the above provisions shall be interpreted to give the Trustees the power in their discretion to allocate or 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 after amended or modified.
ARTICLE IX
DURATION; DISSOLUTION AND TERMINATION OF TRUST; AMENDMENT;
(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, 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 of 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, transfer or other disposition of all or substantially all the Trust Property that requires Shareholder approval under Section IX.3 hereof shall receive the approval so required.
(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 termination of the Trust and distribution to the Shareholders as herein provided, the Trustees shall provide for the making of all filings and applications required by law, and shall execute and lodge among the records of the Trust an instrument in writing setting forth the fact of such termination. Thereupon, the Trustees shall be discharged from all further liabilities and duties hereunder, and the rights and interests of all Shareholders shall thereupon cease.
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(b) An instrument in writing setting forth the amendment or an amended and restated Declaration, executed by a majority of the Trustees, shall be conclusive evidence of such amendment when lodged among the records of the Trust. Subject to the foregoing, any such amendment shall be effective as provided in the instrument containing the terms of such amendment or, if there is no provision therein with respect to effectiveness, upon the execution of such instrument by a majority of the Trustees (or by an officer of the Trust pursuant to a vote of a majority of the Trustees).
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pursuant to any state or federal statute to the extent permitted by law; provided, however, that if required by the 1940 Act, no such statutory conversion, Share conversion or Share exchange shall be effective unless the terms of such transaction shall first have been approved at a meeting called for that purpose by a Majority Shareholder Vote of the Trust, as applicable; provided, further, that in all respects not governed by statute or applicable law, the Trustees shall have the power to prescribe the procedure necessary or appropriate to accomplish a sale of assets, merger or consolidation including the power to create one or more separate business trusts to which all or any part of the assets, liabilities, profits or losses of the Trust may be transferred and to provide for the conversion of Shares of the Trust into beneficial interests in such separate business trust or trusts.
ARTICLE X
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trust, (v) the allocation of receipts and expenditures to income or principal, (vi) restrictions or limitations on the permissible nature, amount or concentration of trust investments or requirements relating to the titling, storage or other manner of holding of trust assets, or (vii) the establishment of fiduciary or other standards or responsibilities or limitations on the acts or powers of trustees, which are inconsistent with the limitations or liabilities or authorities and powers of the Trustees set forth or referenced in this Declaration. The Trust shall be of the type commonly called a “statutory trust”, and without limiting the provisions hereof, the Trust may exercise all powers which are ordinarily exercised by such a trust under Delaware law. The Trust specifically reserves the right to exercise any of the powers or privileges afforded to trusts or actions that may be engaged in by trusts under the Delaware Act, and the absence of a specific reference herein to any such power, privilege or action shall not imply that the Trust may not exercise such power or privilege or take such actions.
(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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withdraw the right to the use of its name, the Trust will, at the request of such firm, or of a subsidiary, affiliate or successor thereof lawfully using the name, take such action as may be necessary to change its name to eliminate all use of or reference to the words “Gladstone” in any form and will not use the registered service mark of The Gladstone Companies, Inc. or its affiliates without the written consent of such firm, subsidiary, affiliate or successor. The Trust shall also agree in such contract that investment companies other than the Trust for which such firm or a subsidiary or successor thereof may act as investment adviser, and other companies affiliated with The Gladstone Companies, Inc., may be formed with the words “Gladstone” in their corporate titles. Such agreements on the part of the Trust are hereby made binding upon it, its Trustees, officers, shareholders, creditors and all other persons claiming under or through it.
(a) The Shareholder or Shareholders must make a pre-suit demand upon the Trustees to bring the subject action unless an effort to cause the Trustees to bring such an action is not likely to succeed. For purposes of this Section X.7(a), a demand on the Trustees shall only be deemed not likely to succeed and therefore excused if a majority of the Board of Trustees, or a majority of any committee established to consider the merits of such action, is composed of Trustees who are not “independent trustees” (as that term is defined in the Delaware Act);
(b) Unless a demand is not required under paragraph (a) of this Section X.7, Shareholders eligible to bring such derivative action under the Delaware Act who collectively hold Shares representing ten percent (10%) or more of all Shares issued and outstanding or of the series or classes thereof to which such action relates if it does not relate to all series and classes, shall join in the request for the Trustees to commence such action; and
(c) Unless a demand is not required under paragraph (a) of this Section X.7, the Trustees must be afforded a reasonable amount of time to consider such Shareholder request and to investigate the basis of such claim.
(d) For purposes of this Section X.7, the Board of Trustees may designate a committee of one Trustee to consider a Shareholder demand if necessary to create a committee with a majority of Trustees who are “independent trustees” (as that term is defined in the Delaware Act). The Trustees shall be entitled to retain counsel or other advisors in considering the merits of the request and may require an undertaking by the Shareholders making such request to reimburse the Trust for the expense of any such advisors in the event that the Trustees determine not to bring such action.
(e) Any decision by the Trustees to bring, maintain, or compromise (or not to bring, maintain, or compromise) such court action, proceeding or claim, or to submit the matter to a vote of Shareholders, shall be made by the Trustees in good faith and shall be binding upon the Shareholders. Where demand is not required per Section X.7, a Shareholder may only bring a derivative action if Shareholders owning not less than ten percent (10%) of the then outstanding Shares of the Trust or such series or class joins in the bringing of such court action, proceeding or claim.
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Section X.8 General Direct Actions.
Section X.8.1 General. To the fullest extent permitted by Delaware law, the Shareholders’ right to bring a General Direct Action against the Trust and/or its Trustees is eliminated, except for a General Direct Action to enforce an individual Shareholder right to vote or a General Direct Action to enforce an individual Shareholder’s rights under Sections 3805(e) or 3819 of the Delaware Statutory Trust Act. To the extent such right cannot be eliminated to this extent as a matter of Delaware law, then Section X.8.2 shall apply.
Section X.8.2 Required Conditions. No Shareholder may maintain a General Direct Action unless holders of at least ten percent (10%) of the outstanding Shares or, if less than all outstanding series or classes are alleged to have been harmed in connection with the General Direct Action, 10% of the Shares in the respective series, class or classes alleged to have been harmed, join in the bringing of such action. In addition, a Shareholder may bring a General Direct Action only if the following conditions are met:
(a) the Shareholder or Shareholders has obtained authorization from the Trustees to bring such General Direct Action unless an effort to cause the Trustees to authorize such an action is not likely to succeed; and a demand on the Trustees shall only be deemed not likely to succeed and therefore excused if a majority of the Trustees, or a majority of any committee established to consider the merits of such action, is composed of Trustees who are not “independent trustees” (as that term is defined in the Delaware Act); and
(b) unless a demand is not required under clause (a) of this paragraph, the Trustees must be afforded a reasonable amount of time to consider such Shareholder request and to investigate the basis of such claim; and the Trustees shall be entitled to retain counsel or other advisors in considering the merits of the request and may require an undertaking by the Shareholders making such request to reimburse the Trust for the expense of any such advisors in the event that the Trustees determine not to authorize such action.
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Delaware Act, this Declaration or the By-Laws (including, without limitation, any claims, suits, actions or proceedings to interpret, apply or enforce (A) the provisions of this Declaration or the By-Laws, or (B) the duties (including fiduciary duties), obligations or liabilities of the Trust to the Shareholders or the Trustees, or of officers or the Trustees to the Trust, to the Shareholders or each other, or (C) the rights or powers of, or restrictions on, the Trust, the officers, the Trustees or the Shareholders, or (D) any provision of the Delaware Act or other laws of the State of Delaware pertaining to trusts made applicable to the Trust pursuant to Section 3809 of the Delaware Act, or (E) any other instrument, document, agreement or certificate contemplated by any provision of the Delaware Act, this Declaration or the By-Laws relating in any way to the Trust (regardless, in each case, of whether such claims, suits, actions or proceedings (x) sound in contract, tort, fraud or otherwise, (y) are based on common law, statutory, equitable, legal or other grounds, or (z) are derivative or direct claims)), shall be exclusively brought in the Court of Chancery of the State of Delaware or, if such court does not have subject matter jurisdiction thereof, any other court in the State of Delaware with subject matter jurisdiction, (ii) irrevocably submits to the exclusive jurisdiction of such courts in connection with any such claim, suit, action or proceeding, (iii) irrevocably agrees not to, and waives any right to, assert in any such claim, suit, action or proceeding that (A) it is not personally subject to the jurisdiction of such courts or any other court to which proceedings in such courts may be appealed, (B) such claim, suit, action or proceeding is brought in an inconvenient forum, or (C) the venue of such claim, suit, action or proceeding is improper and (iv) consents to process being served in any such claim, suit, action or proceeding by mailing, certified mail, return receipt requested, a copy thereof to such party at the address in effect for notices hereunder, and agrees that such service shall constitute good and sufficient service of process and notice thereof; provided, nothing in clause (iv) hereof shall affect or limit any right to serve process in any other manner permitted by law.
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/s/ Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx as Trustee and not individually |
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/s/ Xxxxx Xxxxxx Xxxxx Xxxxxx as Trustee and not individually |
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/s/ Xxxx X. Xxxxxxxx Xxxx X. Xxxxxxxx as Trustee and not individually |
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/s/ Xxxxxxx X. English Xxxxxxx X. English as Trustee and not individually |
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/s/ Xxxxxxxxx X. Xxxxx Xxxxxxxxx X. Xxxxx as Trustee and not individually |
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/s/ Xxxx X. Xxxxxxx Xxxx X. Xxxxxxx as Trustee and not individually |
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/s/ Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxx as Trustee and not individually |
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/s/ Xxxxxx X. Xxxxxxxxx, Xx. Xxxxxx X. Xxxxxxxxx, Xx. as Trustee and not individually |
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