Exhibit 77Q(1)
THE GABELLI GLOBAL DEAL FUND
____________________________________________
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF FUND
____________________________________________
Amended and Restated February 26, 2009
TABLE OF CONTENTS
ARTICLE I The Fund
1.1 Name 5
1.2 Definitions 5
ARTICLE II Trustees
2.1 Number and Qualification 6
2.2 Term and Election 6
2.3 Resignation and Removal 7
2.4 Vacancies 7
2.5 Meetings 7
2.6 Officers 8
ARTICLE III Powers and Duties of Trustees
3.1 General 9
3.2 Investments 9
3.3 Legal Title 9
3.4 Issuance and Repurchase of Shares 10
3.5 Borrow Money or Utilize Leverage 10
3.6 Collection and Payment 10
3.7 Expenses 10
3.8 By-Laws 10
3.9 Miscellaneous Powers 11
3.10 Delegation; Committees 11
3.11 Further Powers 11
ARTICLE IV Limitations of Liability and Indemnification
4.1 No Personal Liability of Shareholders, Trustees, etc 12
4.2 Mandatory Indemnification 12
4.3 No Duty of Investigation; Notice in Fund Instruments, etc. 13
4.4 Reliance on Experts, etc. 14
ARTICLE V Shares of Beneficial Interest
5.1 Beneficial Interest 14
5.2 Classes and Series 14
5.3 Issuance of Shares 15
5.4 Rights of Shareholders 15
5.5 Fund Only 15
5.6 Register of Shares 15
5.7 Transfer Agent and Registrar 16
5.8 Transfer of Shares 16
5.9 Notices 16
5.10 Net Asset Value 17
5.11 Distributions to Shareholders 17
ARTICLE VI Shareholders
6.1 Meetings of Shareholders 17
6.2 Voting 17
6.3 Notice of Meeting, Shareholder Proposals and Record Date 19
6.4 Quorum and Required Vote 19
6.5 Proxies, etc. 20
6.6 Reports 20
6.7 Inspection of Records 21
6.8 Shareholder Action by Written Consent 21
ARTICLE VII Duration: Termination of Fund; Amendment; Mergers, Etc.
7.1 Duration 21
7.2 Termination 21
7.3 Amendment Procedure 22
7.4 Merger, Consolidation and Sale of Assets 23
7.5 Redemption; Conversion 23
7.6 Certain Transactions 23
ARTICLE VIII Miscellaneous
8.1 Filing 26
8.2 Resident Agent 26
8.3 Governing Law 26
8.4 Counterparts 26
8.5 Reliance by Third Parties 26
8.6 Provisions in Conflict with Law or Regulation 27
THE GABELLI GLOBAL DEAL FUND
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF FUND
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF
FUND 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 Agreement and Declaration of Trust made as of 17th day
of October 2006 in its entirety pursuant to its Section 7.3;
WHEREAS, this Fund has been formed to carry on
business as set forth more particularly hereinafter;
WHEREAS, this Fund 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 Fund in accordance with the provisions
hereinafter set forth; and
WHEREAS, the parties hereto intend that the Fund
created by its initial Agreement and Declaration and the
Certificate of Fund filed with the Secretary of State of
the State of Delaware on October 17, 2006 shall constitute
a statutory Fund under the Delaware Statutory Fund Statute
and that this Declaration shall constitute the governing
instrument of such statutory Fund.
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 FUND 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 Fund as hereinafter set forth.
ARTICLE I
The Fund
1.1 Name
. This Fund shall be known as the "The Gabelli
Global Deal Fund" and the Trustees shall conduct the
business of the Fund 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 Fund as
amended from time to time by the Trustees.
"Code" shall mean the Internal Revenue Code of
1986, as amended, and the regulations promulgated
thereunder.
"Commission" shall mean the Securities and
Exchange Commission.
"Declaration" shall mean this Amended and
Restated Agreement and Declaration of Fund, 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 Fund Statute" shall mean the
provisions of the Delaware Statutory Fund Act, 12 Del. C.
Section 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 Fund, 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
Fund at such time.
"Shares" shall mean the transferable units of
beneficial interest into which the beneficial interest in
the Fund 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.
"Fund" shall mean the Fund 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.
"Fund 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 Fund 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 Fund and
its affiliated persons, as amended from time to time.
The "1940 Act" refers to the Investment Company
Act of 1940 and the rules and regulations promulgated
thereunder and applicable exemptions granted therefrom, as
amended from time to time.
ARTICLE II
Trustees
2.1 Number and Qualification
. Prior to a public offering of Shares, there
may be a sole Trustee and thereafter the number of Trustees
shall be such number, not less than three, as shall be set
forth in a written instrument signed or adopted by a
majority of the Trustees then in office. No reduction in
the number of Trustees shall have the effect of removing
any Trustee from office prior to the expiration of his
term. An individual nominated as a Trustee shall be at
least 21 years of age and not older than such age as shall
be set forth in a written instrument signed or adopted by
not less than two-thirds of the Trustees then in office and
shall not be under legal disability. Trustees need not own
Shares and may succeed themselves in office.
2.2 Term and Election
. The Board of Trustees shall be divided into
three classes. Within the limits specified in Section 2.1,
the number of the Trustees in each class shall be
determined by resolution of the Board of Trustees. The
initial term of office of the first class shall expire on
the date of the first annual meeting of Shareholders or
special meeting in lieu thereof. The initial term of
office of the second class shall expire on the date of the
second annual meeting of Shareholders or special meeting in
lieu thereof. The initial term of office of the third
class shall expire on the date of the third annual meeting
of Shareholders or special meeting in lieu thereof. Upon
expiration of the initial term of office of each class as
set forth above and the expiration of each subsequent term
of office of such class, the term of Trustees of such class
shall be three years and until his or her successor shall
have been elected and shall have qualified or until his or
her earlier resignation, removal, incompetence,
incapacitation or death.
2.3 Resignation and Removal
. Any Trustee may resign his Fund (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 Fund or the remaining Trustees
any Fund Property held in the name of the resigning or
removed Trustee. Upon the incapacity or death of any
Trustee, such Trustee's legal representative shall execute
and deliver on such Trustee's behalf such documents as the
remaining Trustees shall require as provided in the
preceding sentence.
2.4 Vacancies
. The term of office of a Trustee shall
terminate and a vacancy shall occur in the event of the
removal, resignation, incompetence or other incapacity to
perform the duties of the office, or death, of a Trustee.
Whenever a vacancy in the Board of Trustees shall occur,
the remaining Trustees may fill such vacancy by appointing
an individual having the qualifications described in this
Article by a written instrument signed or adopted by a
majority of the Trustees then in office or by election by
the Shareholders, or may leave such vacancy unfilled or may
reduce the number of Trustees (provided the aggregate
number of Trustees after such reduction shall not be less
than the minimum number required by Section 2.1 hereof).
Any vacancy created by an increase in Trustees may be
filled by the appointment of an individual having the
qualifications described in this Article by a majority of
the Trustees then in office or by election by the
Shareholders. No vacancy shall operate to annul this
Declaration or to revoke any existing agency created
pursuant to the terms of this Declaration. Whenever a
vacancy in the number of Trustees shall occur, until such
vacancy is filled as provided herein, the Trustees in
office, regardless of their number, shall have all the
powers granted to the Trustees and shall discharge all the
duties imposed upon the Trustees by this Declaration.
2.5 Meetings
. Meetings of the Trustees shall be held from
time to time upon the call of the Chairman, if any, the
President, the Secretary or any two Trustees. Regular
meetings of the Trustees may be held without call or notice
at a time and place fixed by the By-Laws or by resolution
of the Trustees. Notice of any other meeting shall be
mailed 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 Fund, 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 Fund and who shall serve at the pleasure
of the Trustees.
2.6 Officers
. The Trustees shall elect a President, a
Secretary and a Treasurer who shall serve at the pleasure
of the Trustees or until their successors are elected. The
Trustees may elect or appoint or may authorize the
Chairman, if any, or President to appoint such other
officers or agents with such other titles and powers as the
Trustees may deem to be advisable. A Chairman shall, and
the President, Secretary and Treasurer may, but need not,
be a Trustee.
ARTICLE III
Powers and Duties of Trustees
3.1 General
. The Trustees shall owe to the Fund 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 Fund Property and over the business of the Fund to the
same extent as if the Trustees were the sole owners of the
Fund 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 Fund. 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 Fund Property shall be
vested in the Trustees as joint tenants except that the
Trustees shall have power to cause legal title to any Fund
Property to be held by or in the name of one or more of the
Trustees, or in the name of the Fund, 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 Fund therein is appropriately protected.
The right, title and interest of the Trustees in
the Fund 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
Fund Property, and the right, title and interest of such
Trustee in the Fund 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 Fund 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 Fund, 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 Fund; to pay all claims, including
taxes, against the Fund Property or the Fund, the Trustees
or any officer, employee or agent of the Fund; to
prosecute, defend, compromise or abandon any claims
relating to the Fund Property or the Fund, or the Trustees
or any officer, employee or agent of the Fund; to foreclose
any security interest securing any obligations, by virtue
of which any property is owed to the Fund; 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 Fund or the Shareholders.
3.7 Expenses
. The Trustees shall have power to incur and pay
out of the assets or income of the Fund 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 Fund, and to pay reasonable
compensation from the funds of the Fund to themselves as
Trustees. The Trustees shall fix the compensation of all
officers, employees and Trustees. The Trustees may pay
themselves such compensation for special services,
including legal, underwriting, syndicating and brokerage
services, as they in good faith may deem reasonable and
reimbursement for expenses reasonably incurred by
themselves on behalf of the Fund.
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 Fund. Such By-Laws shall be binding on the Fund 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
Fund, 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 Fund Property, insurance policies insuring the
Shareholders, Trustees, officers, employees, agents,
investment advisors, distributors, selected dealers or
independent contractors of the Fund 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 Fund 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 Fund; (e) make donations,
irrespective of benefit to the Fund, for charitable,
religious, educational, scientific, civic or similar
purposes; (f) to the extent permitted by applicable law,
indemnify any Person with whom the Fund 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 Fund and the method in which its accounts shall
be kept; and (i) adopt a seal for the Fund but the absence
of such seal shall not impair the validity of any
instrument executed on behalf of the Fund.
3.10 Delegation; Committees
. The Trustees shall have the power, consistent
with their continuing exclusive authority over the
management of the Fund and the Fund Property, to delegate
from time to time to such of their number or to officers,
employees or agents of the Fund the doing of such things
and the execution of such instruments either in the name of
the Fund 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.
3.11 Further Powers
. The Trustees shall have the power to conduct
the business of the Fund 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 Fund
although such things are not herein specifically mentioned.
Any determination as to what is in the interests of the
Fund 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 Fund shall be subject in
such capacity to any personal liability whatsoever to any
Person in connection with Fund Property or the acts,
obligations or affairs of the Fund. 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 Fund
shall be subject in such capacity to any personal liability
whatsoever to any Person, other than the Fund or its
Shareholders, in connection with Fund Property or the
affairs of the Fund, save only liability to the Fund 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 Fund Property for
satisfaction of claims of any nature arising in connection
with the affairs of the Fund. If any Shareholder, Trustee
or officer, as such, of the Fund, 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 Fund shall indemnify the Trustees
and officers of the Fund (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 Fund or, in the case of any criminal
proceeding, as to which he shall have had reasonable cause
to believe that the conduct was unlawful, provided,
however, that no indemnitee shall be indemnified hereunder
against any liability to any person or any expense of such
indemnitee arising by reason of (i) willful misfeasance,
(ii) bad faith, (iii) gross negligence (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 Fund 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 Fund shall make advance payments in
connection with the expenses of defending any action with
respect to which indemnification might be sought hereunder
if the Fund 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 Fund
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 Fund 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 Fund shall have the power and
authority to indemnify Persons providing services to the
Fund to the full extent provided by law as if the Fund 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 Fund
Instruments, etc.
No purchaser, lender, transfer agent or other
person dealing with the Trustees or with any officer,
employee or agent of the Fund 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 Fund, and every
other act or thing whatsoever executed in connection with
the Fund 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 Fund. The Trustees
may maintain insurance for the protection of the Fund
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
Fund 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 Fund,
upon an opinion of counsel, or upon reports made to the
Fund by any of the Fund'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 Fund, 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 Fund.
5.2 Classes and Series
. The Trustees shall have the authority, without
the approval of the holders of any Shares of the Fund, to
classify and reclassify issued and unissued Shares into one
or more classes and one or more series of any or all of
such classes, each of which classes and series thereof
shall have such designations, powers, preferences, voting,
conversion and other rights, limitations, qualifications
and terms and conditions as the Trustees shall determine
from time to time with respect to each such class or
series; provided, however, that no 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 Fund 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 Fund 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 Fund 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 Fund nor can they be called upon to share
or assume any losses of the Fund 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 Fund 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 Fund. Nothing in this Declaration shall be
construed to make the Shareholders, either by themselves or
with the Trustees, partners or members of a joint stock
association.
5.6 Register of Shares
. A register shall be kept at the Fund 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 Fund 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 Fund 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 Fund. 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 Fund 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 Fund,
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 Fund 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 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
Fund 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 Fund, the
amount of liabilities of the Fund and the net asset value
of each outstanding Common Share of the Fund 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 Fund.
Such distributions may be made in cash or property
(including without limitation any type of obligations of
the Fund 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 Fund 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 Fund or to meet obligations of the
Fund, 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 Fund.
ARTICLE VI
Shareholders
6.1 Meetings of Shareholders
. The Fund may, but shall not be required to,
hold annual meetings of the holders of any class or series
of Shares. An annual or special meeting of Shareholders
may be called at any time only by the Trustees; provided,
however, that if May 31 of any year shall have passed and
the Trustees shall not have called an annual meeting of
Shareholders for such year, the Trustees shall call a
meeting for the purpose of voting on the removal of one or
more Trustees or the termination of any investment advisory
agreement or independent accountants, upon written request
of holders of Shares of the Fund having in the aggregate
not less than a majority of the votes of the outstanding
Shares of the Fund 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 Fund 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 Fund. 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, by electronic mail or other form of legally
permissible 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 Fund 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 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 Fund 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 Fund 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 Fund 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, proxies may be solicited in the
name of one or more Trustees or one or more of the officers
or employees of the Fund. 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 Fund prepared in
conformity with generally accepted accounting principles
and applicable law.
6.7 Inspection of Records
. The records of the Fund 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 Fund; Amendment; Mergers, Etc.
7.1 Duration
. Subject to termination in accordance with the
provisions of Section 7.2 hereof, the Fund created hereby
shall have perpetual existence.
7.2 Termination
.
(a) The Fund may be dissolved, after two
thirds of the Trustees then in office have approved a
resolution therefor, upon approval by Xxxxxx 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 Fund:
(i) The Fund 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 Fund and all of the powers of
the Trustees under this Declaration shall continue until
the affairs of the Fund shall have been wound up, including
the power to fulfill or discharge the contracts of the
Fund, collect its assets, sell, convey, assign, exchange,
merger where the Fund is not the survivor, transfer or
otherwise dispose of all or any part of the remaining Fund
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 Fund
is not the survivor, transfer or other disposition of all
or substantially all the Fund Property of the Fund 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 Fund 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 Fund and distribution to the Shareholders as herein
provided, a majority of the Trustees shall execute and
lodge among the records of the Fund 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 Fund, 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 Fund or any class or series, to make any change
that does not adversely affect the relative rights or
preferences of any class or series of Shares or to conform
this Declaration to the requirements of the 1940 Act or any
other applicable law, but the Trustees shall not be liable
for failing to do so. If a vote of Shareholders is
required by applicable law or this Declaration, or if the
Trustees determine to submit an amendment to a vote of
Shareholders, then, other than with respect to amendments
of Sections 2.2, 2.3, 3.8, 6.1, 6.2, 6.4, 6.8, 7.1, 7.2,
7.3, 7.4, 7.5 and 7.6, this Declaration may be amended,
after a majority of the Trustees then in office have
approved a resolution therefor, by the affirmative vote set
forth in Section 6.4(b)(ii). Sections 2.2, 2.3, 3.8, 6.1,
6.2, 6.4, 6.8, 7.1, 7.2, 7.3, 7.4, 7.5 and 7.6 may only be
amended, after a majority of the Trustees then in office
have approved a resolution therefor, by the affirmative
vote of the holders of not less than 75% of the affected
Shares outstanding on the record date.
(b) Nothing contained in this Declaration
shall permit the amendment of this Declaration to impair
the exemption from personal liability of the Shareholders,
Trustees, officers, employees and agents of the Fund 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 Fund 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 Fund may merge or
consolidate with any other corporation, association, Fund
or other organization or may sell, lease or exchange all or
substantially all of the Fund 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.
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 Fund or any person controlled by
the Fund to purchase any of such holder's Shares. The Fund
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
Fund'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 Fund 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 Fund's outstanding Shares entitled to
vote, the Fund 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 Fund) 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 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 Fund or any subsidiary of the Fund with or into any
Principal Shareholder.
(ii) The issuance of any
securities of the Fund 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 Fund 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 Fund or any subsidiary thereof, in exchange for
securities of the Fund 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 Fund or any
Person controlled by the Fund of any Common Shares of the
Fund 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 vote in elections of directors
is owned of record or beneficially by the Fund 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 Fund
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 Fund
or any subsidiary thereof constitute a substantial part of
the assets of the Fund 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 Fund'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 Fund'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 Fund shall maintain a resident agent in
the State of Delaware, which agent shall initially be The
Corporation Fund Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000 The Trustees may designate a successor
resident agent, provided, however, that such appointment
shall not become effective until written notice thereof is
delivered to the office of the Secretary of the State.
8.3 Governing Law
. This Declaration is executed by a majority of
the Trustees and delivered in the State of Delaware and
with reference to the laws thereof, and the rights of all
parties and the validity and construction of every
provision hereof shall be subject to and construed
according to the laws of said State and reference shall be
specifically made to the business corporation law of the
State of Delaware as to the construction of matters not
specifically covered herein or as to which an ambiguity
exists, although such law shall not be viewed as limiting
the powers otherwise granted to the Trustees hereunder and
any ambiguity shall be viewed in favor of such powers.
8.4 Counterparts
. This Declaration may be simultaneously
executed in several counterparts, each of which shall be
deemed to be an original, and such counterparts, together,
shall constitute one and the same instrument, which shall
be sufficiently evidenced by any such original counterpart.
8.5 Reliance by Third Parties
. Any certificate executed by an individual who,
according to the records of the Fund, 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 Fund, (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 Fund,
shall be conclusive evidence as to the matters so certified
in favor of any person dealing with the Trustees and their
successors.
8.6 Provisions in Conflict with Law or
Regulation
.
(a) The provisions of this Declaration are
severable, and if the Trustees shall determine, with the
advice of counsel, that any of such provisions is in
conflict with the 1940 Act, the regulated investment
company provisions of the Code or with other applicable
laws and regulations, the conflicting provision shall be
deemed never to have constituted a part of this Declaration
to the extent of such conflict; provided, however, that
such determination shall not affect any of the remaining
provisions of this Declaration or render invalid or
improper any action taken or omitted prior to such
determination.
(b) If any provision of this Declaration
shall be held invalid or unenforceable in any jurisdiction,
such invalidity or unenforceability shall attach only to
such provision in such jurisdiction and shall not in any
manner affect such provision in any other jurisdiction or
any other provision of this Declaration in any
jurisdiction.
IN WITNESS WHEREOF, the undersigned has caused these
presents to be executed as of the day and year first above
written.
By: ________________________ ________________________
Xxxxxxx X. Xxxxxxxx Xxxxx X. Xxxx
________________________ ________________________
Xxxxxxxx X. Xxxxx Xxxxx x'Xxxx
________________________ ________________________
Xxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxx
________________________ ________________________
Xxxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxx
________________________
Xxxxxxxxx X. Xxxxx
