GLOBAL REAL ESTATE OPPORTUNITY TRUST AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
TABLE OF CONTENTS
ARTICLE I The Trust |
1 | |||
1.1 Name |
1 | |||
1.2 Definitions |
1 | |||
1.3 Purpose and Powers of Trust |
2 | |||
ARTICLE II Trustees |
2 | |||
2.1 Number and Qualification |
2 | |||
2.2 Term and Election |
3 | |||
2.3 Resignation and Removal |
3 | |||
2.4 Vacancies |
3 | |||
2.5 Meetings |
4 | |||
2.6 Officers |
4 | |||
ARTICLE III Powers and Duties of Trustees |
4 | |||
3.1 General |
4 | |||
3.2 Investments |
5 | |||
3.3 Legal Title |
5 | |||
3.4 Issuance, Repurchase and Redemption of Shares |
5 | |||
3.5 Borrow Money |
5 | |||
3.6 Collection and Payment |
5 | |||
3.7 Expenses |
6 | |||
3.8 By-Laws |
6 | |||
3.9 Officers and Agents |
6 | |||
3.10 Miscellaneous Powers |
6 | |||
3.11 Delegation; Committees |
6 | |||
3.12 Further Powers |
7 | |||
ARTICLE IV Limitations of Liability and Indemnification |
7 | |||
4.1 No Personal Liability of Shareholders, Trustees, etc |
7 | |||
4.2 Mandatory Indemnification. |
7 | |||
4.3 No Duty of Investigation; Notice in Trust Instruments, etc |
8 | |||
4.4 Reliance on Experts, etc |
9 | |||
ARTICLE V Shares of Beneficial Interest |
9 | |||
5.1 Beneficial Interest |
9 | |||
5.2 Classes and Series |
9 | |||
5.3 Issuance of Shares |
9 | |||
5.4 Repurchase and Redemption of Shares |
9 | |||
5.5 Rights of Shareholders |
10 | |||
5.6 Trust Only |
10 | |||
5.7 Register of Shares |
10 | |||
5.8 Transfer Agent and Xxxxxxxxx |
00 | |||
5.9 Transfer of Shares |
11 |
5.10 Notices |
11 | |||
5.11 Net Asset Value |
11 | |||
5.12 Distributions to Shareholders |
11 | |||
ARTICLE VI Shareholders |
12 | |||
6.1 Meetings of Shareholders |
12 | |||
6.2 Voting |
12 | |||
6.3 Notice of Meeting, Shareholder Proposals and Record Date |
12 | |||
6.4 Quorum and Required Vote |
12 | |||
6.5 Proxies, etc |
13 | |||
6.6 Reports |
13 | |||
6.7 Shareholder Action by Written Consent |
14 | |||
ARTICLE VII Limited Term of Existence; Termination of Trust; Amendment; Mergers; Etc. |
14 | |||
7.1 Limited Term of Existence |
14 | |||
7.2 Termination |
14 | |||
7.3 Amendment Procedure |
15 | |||
7.4 Merger, Consolidation and Sale of Assets |
16 | |||
7.5 Redemption; Conversion of Investment Company |
16 | |||
7.6 Certain Transactions |
16 | |||
ARTICLE VIII Miscellaneous |
18 | |||
8.1 References; Headings; Counterparts |
18 | |||
8.2 Filing |
18 | |||
8.3 Resident Agent |
18 | |||
8.4 Governing Law |
19 | |||
8.5 Counterparts |
19 | |||
8.6 Reliance by Third Parties |
19 | |||
8.7 Provisions in Conflict with Law or Regulation |
19 |
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
THIS AGREEMENT AND DECLARATION OF TRUST is made as of the 8th day of November, 2007
and amended and restated as of the 3rd day of June, 2009 (this “Declaration”), by the
Trustees and by the holders of shares of beneficial interest to be issued hereunder as hereinafter
provided.
WHEREAS, this Trust, created by the Certificate of Trust filed with the Secretary of State of
the State of Delaware on November 8, 2007, as amended from time to time, shall constitute a
statutory trust under the Delaware Statutory Trust Act and this Declaration shall constitute the
governing instrument of such trust;
WHEREAS, this Trust has been formed to carry on business as set forth more particularly
hereinafter;
WHEREAS, this Trust is authorized to issue an unlimited number of its shares of beneficial
interest in accordance with the provisions hereinafter set forth; and
WHEREAS, the Trustees have agreed to manage all property coming into their hands as Trustees
of a Delaware statutory trust in accordance with the provisions of the Delaware Statutory Trust
Act, as amended from time to time, and the provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold all cash, securities, and
other assets which they may from time to time acquire in any manner as Trustees hereunder IN TRUST
to manage and dispose of the same upon the following terms and conditions for the benefit of the
holders from time to time of shares of beneficial interest in this Trust as hereinafter set forth.
ARTICLE I
The Trust
1.1 Name. This Trust shall be known as the “Global Real Estate Opportunity Trust”, and the
Trustees shall conduct the business of the Trust under that name or any other name or names as they
may from time to time determine.
1.2 Definitions. As used in this Declaration, the following terms shall have the following
meanings:
The terms “Affiliated Person”, “Assignment”, “Commission”, “Interested Person” and “Principal
Underwriter” shall have the meanings given them in the 1940 Act.
“By-Laws” shall mean the By-Laws of the Trust as amended from time to time by the Trustees.
“Code” shall mean the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
“Declaration” shall mean this Agreement and Declaration of Trust, as amended and restated from
time to time, including by way of any classifying or reclassifying Shares of any class or any
series of any such class or determining any designations, powers, preferences, voting, conversion
and other rights, limitations, qualifications and terms and conditions thereof.
“Delaware Statutory Trust Act” shall mean the provisions of the Delaware Statutory Trust Act,
12 Del. C. Section 3801 et. seq., as such Act may be amended from time to time.
“Independent Trustees” shall mean those Trustees who are not “interested persons” of the Fund,
as such defined in Section 2(a)(19) of the 1940 Act.
“Person” shall mean and include natural persons, corporations, partnerships, trusts, limited
liability companies, associations, joint ventures and other entities, whether or not legal
entities, and governments and agencies and political subdivisions thereof.
“Prospectus” shall mean the currently effective Prospectus of the Trust, if any, under the
Securities Act of 1933, as amended.
“Shareholder” shall mean as of any particular time any owner of beneficial interest in the
Trust at such time.
“Shareholder of Record” shall mean any Shareholder or, if such Shareholder has elected to hold
his or her Shares in nominee name, such nominee.
“Shares” shall mean the transferable units of beneficial interest in the Trust and includes
fractions of Shares as well as whole Shares. All references to Shares shall be deemed to be Shares
of any or all series thereof as the context may require.
“Trust” shall mean the trust established by this Declaration, as amended from time to time,
inclusive of each such amendment.
“Trustees” shall mean the signatory to this Declaration, so long as he shall continue in
office in accordance with the terms hereof, and all other persons who at the time in question have
been duly elected or appointed and have qualified as trustees in accordance with the provisions
hereof and are then in office.
“Trust Property” shall mean as of any particular time any and all property, real or personal,
tangible or intangible, which at such time is owned or held by or for the account of the Trust or
the Trustees in such capacity.
The “1933 Act” refers to the Securities Act of 1933 and the rules and regulations promulgated
thereunder and exemptions therefrom covering the Trust and its affiliated persons, as amended from
time to time.
The “1940 Act” refers to the Investment Company Act of 1940 and the rules and regulations
promulgated thereunder and exemptions therefrom, as amended from time to time.
1.3 Purpose and Powers of Trust. The Trust is established for the purpose of engaging in any
activity not prohibited by Delaware law and shall have the power to engage in any such activity and
in any activity incidental or related to any such activity.
ARTICLE II
Trustees
2.1 Number and Qualification. Prior to a public offering of Shares, there may be a sole
Trustee. Thereafter, the number of Trustees shall be such number, not less than three nor more
than
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fifteen, 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 shall not be under a 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 number of Trustees in such class,
as determined by the Board of Trustees, shall be elected for a term expiring on the date of the
third annual meeting of Shareholders or special meeting in lieu thereof following such expiration
to succeed the Trustees whose terms of office expire. The Trustees shall be elected at an annual
meeting of the Shareholders or special meeting in lieu thereof called for that purpose, except as
provided in Section 2.4 of this Article, and each Trustee elected shall hold office until his or
her successor shall have been elected and shall have qualified, except as provided in Section 2.3.
2.3 Resignation and Removal. Any Trustee may resign his trust (without need for prior or
subsequent accounting) by an instrument in writing signed by him and delivered or mailed to the
Chairman, if any, the President or the Secretary and such resignation shall be effective upon such
delivery, or at a later date according to the terms of the instrument. 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), for or without cause, at any time by a written instrument,
signed or adopted by two-thirds of the remaining Trustees, or by vote of Shares having not less
than two-thirds of the aggregate number of Shares entitled to vote in the election of such Trustee,
specifying the date when such removal shall become effective. Upon the resignation or removal of a
Trustee, or such persons otherwise ceasing to be a Trustee, such persons shall execute and deliver
such documents as the remaining Trustees shall require for the purpose of conveying to the Trust or
the remaining Trustees any Trust Property held in the name of the resigning or removed Trustee.
Upon the incapacity or death of any Trustee, such Trustee’s legal representative shall execute and
deliver on such Trustee’s behalf such documents as the remaining Trustees shall require as provided
in the preceding sentence.
2.4 Vacancies. The term of office of a Trustee shall terminate and a vacancy shall occur in
the event of the death, resignation, bankruptcy, adjudicated incompetence or other incapacity to
perform the duties of the office, or removal, 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 made by a written instrument signed 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.
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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 three 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 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 a majority of the Trustees. Unless provided otherwise in this Declaration, 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.
2.6 Officers. The Trustees shall elect a President, a Secretary and a Treasurer and may elect
a Chairman who shall serve at the pleasure of the Trustees or until their successors are elected.
The Trustees may elect or appoint or may authorize the Chairman, if any, or President to appoint
such other officers or agents with such 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 have exclusive and absolute control over the Trust Property
and over the business of the Trust to the same extent as if the Trustees were the sole owners of
the Trust Property and business in their own right, but with such powers of delegation as may be
permitted by this Declaration. The Trustees shall have power to engage in any activity not
prohibited by Delaware law. The enumeration of any specific power herein shall not be construed as
limiting the aforesaid power. The Trustees may perform such acts as in their sole discretion are
proper for conducting the business of the Trust. The powers of the Trustees may be exercised
without order of or resort to any court. No Trustee shall be obligated to give any bond or other
security for the performance of any of his duties or powers hereunder.
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3.2 Investments. The Trustees shall have power to:
(a) manage, conduct, operate and carry on the business of an investment
company, and exercise all the powers necessary and appropriate to the conduct of
such operations;
(b) subscribe for, invest in, reinvest in, purchase or otherwise acquire, hold,
pledge, sell, assign, transfer, exchange, distribute or otherwise deal in or dispose
of any and all sorts of property, tangible or intangible, including but not limited
to securities of any type whatsoever, whether equity or non-equity, of any issuer,
evidences of indebtedness of any person and any other rights, interests, instruments
or property of any sort and to exercise any and all rights, powers and privileges of
ownership or interest in respect of any and all such investments of every kind and
description, including, without limitation, the right to consent and otherwise act
with respect thereto, with power to designate one or more Persons to exercise any of
said rights, powers and privileges in respect of any of said investments. The
Trustees shall not be limited by any law limiting the investments which may be made
by fiduciaries.
3.3 Legal Title. Legal title to all the Trust Property shall be vested in the Trustees as
joint tenants except that the Trustees shall have power to cause legal title to any Trust Property
to be held by or in the name of one or more of the Trustees, or in the name of the Trust, or in the
name of any other Person as nominee, custodian or pledgee, on such terms as the Trustees may
determine, provided that the interest of the Trust therein is appropriately protected.
The right, title and interest of the Trustees in the Trust Property shall vest automatically
in each person who may hereafter become a Trustee upon his due election and qualification. Upon
the ceasing of any person to be a Trustee for any reason, such person shall automatically cease to
have any right, title or interest in any of the Trust Property, and the right, title and interest
of such Trustee in the Trust Property shall vest automatically in the remaining Trustees. Such
vesting and cessation of title shall be effective whether or not conveyancing documents have been
executed and delivered.
3.4 Issuance, Repurchase and Redemption 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, to hold reacquired shares as treasury shares
or otherwise, or to cancel the same, 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 permitted by the laws of the State of Delaware
governing business corporations.
3.5 Borrow Money. The Trustees shall have the power to borrow money or otherwise obtain
credit or utilize leverage in connection with the activities of the Trust to the maximum extent
permitted by law, regulation or order and to secure the same by mortgaging, pledging or otherwise
subjecting as security the assets of the Trust, including the lending of portfolio securities, and
to endorse, guarantee or undertake the performance of any obligation, contract or engagement of any
other person, firm, association or corporation.
3.6 Collection and Payment. The Trustees shall have power to collect all property due to the
Trust; to pay all claims, including taxes, against the Trust Property or the Trust, the Trustees or
any officer, employee or agent of the Trust; to prosecute, defend, compromise or abandon any claims
relating to the Trust Property or the Trust, or the Trustees or any officer, employee or agent of
the Trust; to foreclose any security interest securing any obligations, by virtue of which any
property is owed to the
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Trust; and to enter into releases, agreements and other instruments. Except to the extent
required for a Delaware business corporation, the Shareholders shall have no power to vote as to
whether or not a court action, legal proceeding or claim should or should not be brought or
maintained derivatively or as a class action on behalf of the Trust or the Shareholders.
3.7 Expenses. The Trustees shall have power to incur and pay out of the assets or income of
the Trust any expenses which in the opinion of the Trustees are necessary or appropriate to carry
out any of the purposes of this Declaration, and the business of the Trust, and to pay reasonable
compensation from the funds of the Trust to themselves as Trustees. The Trustees shall fix the
compensation of all officers, employees and Trustees. The Trustees may pay themselves such
compensation for special services, including legal, underwriting, syndicating and brokerage
services, as they in good faith may deem reasonable and reimbursement for expenses reasonably
incurred by themselves on behalf of the Trust.
3.8 By-Laws. The Trustees may adopt and from time to time amend or repeal By-Laws for the
conduct of the business of the Trust. Such By-Laws shall be binding on the Trust and the
Shareholders unless inconsistent with the provisions of this Declaration. The Shareholders shall
not have authority to adopt or amend By-Laws.
3.9 Officers and Agents. The Trustees may elect and remove such officers and appoint and
terminate such agents as they deem appropriate, in accordance with this Declaration and the
By-Laws.
3.10 Miscellaneous Powers. The Trustees shall have the power to: (a) employ or contract with
such Persons as the Trustees may deem desirable for the transaction of the business of the Trust,
including investment advisers, administrators, custodians, transfer agents, shareholder services
providers, accountants, counsel, brokers, dealers and others; (b) enter into joint ventures,
partnerships and any other combinations or associations; (c) purchase, and pay for out of Trust
Property, insurance policies insuring the Shareholders, Trustees, officers, employees, agents,
investment advisers, distributors, selected dealers or independent contractors of the Trust against
all claims arising by reason of holding any such position or by reason of any action taken or
omitted by any such Person in such capacity, whether or not constituting negligence, or whether or
not the Trust would have the power to indemnify such Person against such liability; (d) establish
pension, profit-sharing, share purchase, and other retirement, incentive and benefit plans for any
Trustees, officers, employees and agents of the Trust; (e) make donations, irrespective of benefit
to the Trust, for charitable, religious, educational, scientific, civic or similar purposes; (f) to
the extent permitted by applicable law, indemnify any Person with whom the Trust has dealings,
including without limitation any investment adviser, administrator, manager, transfer agent,
custodian, distributor or selected dealer, or any other person as the Trustees may see fit to such
extent as the Trustees shall determine; (g) guarantee indebtedness or contractual obligations of
others; (h) determine and change the fiscal year of the Trust and the method in which its accounts
shall be kept; (i) adopt a seal for the Trust but the absence of such seal shall not impair the
validity of any instrument executed on behalf of the Trust; (j) adopt any policy of the Trust and
designate the same as fundamental or not fundamental; and (k) set record dates in the manner
provided for herein or in the By-Laws.
3.11 Delegation; Committees. The Trustees shall have the power, consistent with their
continuing exclusive authority over the management of the Trust and the Trust Property, to delegate
from time to time to such of their number or to officers, employees or agents of the Trust the
doing of such things and the execution of such instruments either in the name of the Trust or the
names of the Trustees or otherwise as the Trustees may deem expedient. The Trustees may designate
one or more committees each of which shall have all or such lesser portion of the power and
authority of the entire Board of Trustees as the Trustees shall determine from time to time, except
to the extent action by the entire Board of Trustees or particular Trustees is required by the 1940
Act.
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3.12 Further Powers. The Trustees shall have the power to conduct the business of the Trust
and carry on its operations in any and all of its branches and maintain offices both within and
without the State of Delaware, in any and all states of the United States of America, in the
District of Columbia, and in any and all commonwealths, territories, dependencies, colonies,
possessions, agencies or instrumentalities of the United States of America and of foreign
governments, and to do all such other things and execute all such instruments as they deem
necessary, proper or desirable in order to promote the interests of the Trust although such things
are not herein specifically mentioned. Any determination as to what is in the interests of the
Trust made by the Trustees in good faith shall be conclusive. In construing the provisions of this
Declaration, the presumption shall be in favor of a grant of power to the Trustees.
ARTICLE IV
Limitations of Liability and Indemnification
4.1 No Personal Liability of Shareholders, Trustees, etc. No Shareholder of the Trust shall
be subject in such capacity to any personal liability whatsoever to any Person in connection with
Trust Property or the acts, obligations or affairs of the Trust. Shareholders shall have the same
limitation of personal liability as is extended to stockholders of a private corporation for profit
incorporated under the General Corporation Law of the State of Delaware. No Trustee or officer of
the Trust shall be subject in such capacity to any personal liability whatsoever to any Person in
connection with Trust Property or the affairs of the Trust, save only liability to the Trust or its
Shareholders arising from bad faith, willful misfeasance, gross negligence or reckless disregard
for his duty to such Person; and, subject to the foregoing exception, all Persons shall look solely
to the Trust Property for satisfaction of claims of any nature arising in connection with the
affairs of the Trust. If any Shareholder, Trustee or officer of the Trust, as such, is made a
party to any suit or proceeding to enforce any such liability, subject to the foregoing exception,
he shall not, on account thereof, be held to any personal liability.
4.2 Mandatory Indemnification.
(a) The Trust shall indemnify the Trustees and officers of the Trust (each such
person being an “indemnitee”) against any liabilities and expenses, including
amounts paid in satisfaction of judgments, in compromise or as fines and penalties,
and reasonable counsel fees reasonably incurred by such indemnitee in connection
with the defense or disposition of any action, suit or other proceeding, whether
civil or criminal, before any court or administrative or investigative body in which
he may be or may have been involved as a party or otherwise (other than, except as
authorized by the Trustees, as the plaintiff or complainant) or with which he may be
or may have been threatened, while acting in any capacity set forth in this Section
4.2 by reason of his having acted in any such capacity, except with respect to any
matter as to which he shall not have acted in good faith in the reasonable belief
that his action was in the best interest of the Trust or, in the case of any
criminal proceeding, as to 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
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only if the prosecution of such action, suit or other proceeding by such
indemnitee was authorized by a majority of the Trustees.
(b) Notwithstanding the foregoing, no indemnification shall be made hereunder
unless there has been a determination (1) by a final decision on the merits by a
court or other body of competent jurisdiction before whom the issue of entitlement
to indemnification hereunder was brought that such indemnitee is entitled to
indemnification hereunder or, (2) in the absence of such a decision, by (i) a
majority vote of a quorum of those Trustees who are neither Interested Persons of
the Trust nor parties to the proceeding (“Disinterested Non-Party Trustees”), that
the indemnitee is entitled to indemnification hereunder, or (ii) if such quorum is
not obtainable or even if obtainable, if such majority so directs, independent legal
counsel in a written opinion conclude that the indemnitee should be entitled to
indemnification hereunder. All determinations to make advance payments in
connection with the expense of defending any proceeding shall be authorized and made
in accordance with the immediately succeeding paragraph (c) below.
(c) The Trust shall make advance payments in connection with the expenses of
defending any action with respect to which indemnification might be sought hereunder
if the Trust receives a written affirmation by the indemnitee of the indemnitee’s
good faith belief that the standards of conduct necessary for indemnification have
been met and a written undertaking to reimburse the Trust unless it is subsequently
determined that he is entitled to such indemnification and if a majority of the
Trustees determine that the applicable standards of conduct necessary for
indemnification appear to have been met. In addition, at least one of the following
conditions must be met: (1) the indemnitee shall provide adequate security for his
undertaking, (2) the Trust shall be insured against losses arising by reason of any
lawful advances, or (3) a majority of a quorum of the Disinterested Non-Party
Trustees, or if a majority vote of such quorum so direct, independent legal counsel
in a written opinion, shall conclude, based on a review of readily available facts
(as opposed to a full trial-type inquiry), that there is substantial reason to
believe that the indemnitee ultimately will be found entitled to indemnification.
(d) The rights accruing to any indemnitee under these provisions shall not
exclude any other right to which he may be lawfully entitled.
(e) Notwithstanding the foregoing, subject to any limitations provided by the
1940 Act and this Declaration, the Trust shall have the power and authority to
indemnify Persons providing services to the Trust to the full extent provided by law
provided that such indemnification has been approved by a majority of the Trustees.
4.3 No Duty of Investigation; Notice in Trust Instruments, etc. No purchaser, lender,
transfer agent or other person dealing with the Trustees or with any officer, employee or agent of
the Trust shall be bound to make any inquiry concerning the validity of any transaction purporting
to be made by the Trustees or by said officer, employee or agent or be liable for the application
of money or property paid, loaned or delivered to or on the order of the Trustees or of said
officer, employee or agent. Every obligation, contract, undertaking, instrument, certificate,
Share, other security of the Trust, and every other act or thing whatsoever executed in connection
with the Trust shall be conclusively taken to have been executed or done by the executors thereof
only in their capacity as Trustees under this Declaration or in their capacity as officers,
employees or agents of the Trust. The Trustees may maintain insurance for the protection of the
Trust Property, its Shareholders, Trustees, officers, employees and agents in such
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amount as the Trustees shall deem adequate to cover possible liability, and such other
insurance as the Trustees in their sole judgment shall deem advisable or is required by the 1940
Act.
4.4 Reliance on Experts, etc. Each Trustee and officer or employee of the Trust shall, in the
performance of its duties, be fully and completely justified and protected with regard to any act
or any failure to act resulting from reliance in good faith upon the books of account or other
records of the Trust, upon an opinion of counsel or upon reports made to the Trust by any of the
Trust’s officers or employees or by any adviser, administrator, manager, distributor, selected
dealer, accountant, appraiser or other expert or consultant selected with reasonable care by the
Trustees, officers or employees of the Trust, regardless of whether such counsel or other person
may also be a Trustee.
ARTICLE V
Shares of Beneficial Interest
5.1 Beneficial Interest. The beneficial interest in the Trust shall be divided into an
unlimited number of transferable shares, and each share shall have no par value per share or such
other amount as the Trustees may establish. All Shares issued in accordance with the terms hereof,
including, without limitation, Shares issued in connection with a dividend in Shares or a split of
Shares, shall be fully paid and nonassessable when the consideration determined by the Trustees (if
any) therefor shall have been received by the Trust.
5.2 Classes and Series. The Trustees shall have the authority, without the approval of the
holders of any Shares of the Trust, to classify and reclassify issued and unissued Shares into one
or more classes and one or more series of any or all of such classes, each of which classes and
series thereof shall have such designations, powers, preferences, voting, conversion and other
rights, limitations, qualifications and terms and conditions as the Trustees shall determine from
time to time with respect to each such class or series; provided, however, that no reclassification
of any issued and outstanding Shares and no modifications of any of the designations, powers,
preferences, voting, conversion or other rights, limitations, qualifications and terms and
conditions of any issued and outstanding Shares may be made by the Trustees without the affirmative
vote of the holders of Shares specified in Section 7.3(a) to the extent required thereby. The
initial class of Shares of the Trust is hereby designated as “Common Shares”, subject to
redesignation as aforesaid. To the extent expressly determined by the Trustees as aforesaid, all
consideration received by the Trust for the issue or sale of Shares of a class, together with all
income, earnings, profits and proceeds thereof, including any proceeds derived from the sale,
exchange or liquidation thereof, and any funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall irrevocably belong to such class subject only to
the rights of the creditors, and all liabilities allocable to such class shall be charged thereto.
5.3 Issuance of Shares. The Trustees, in their discretion, may from time to time without vote
of the Shareholders issue Shares of any class or any series of any such class to such party or
parties and for such amount and type of consideration, including cash or property, at such time or
times, and on such terms as the Trustees may determine, and may in such manner acquire other assets
(including the acquisition of assets subject to, and in connection with the assumption of,
liabilities) and businesses. The Trustees may from time to time divide or combine the Shares of
any class or any series of any such class into a greater or lesser number without thereby changing
the proportionate beneficial interest in such Shares. Issuances and repurchases of Shares may be
made in whole Shares and/or 1/1,000ths of a Share or multiples thereof as the Trustees may
determine.
5.4 Repurchase and Redemption of Shares. Unless otherwise required by the 1940 Act, from time
to time the Trust may redeem or repurchase its Shares, all upon such terms and conditions as
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may be determined by the Trustees and subject to any applicable provisions of the 1940 Act.
The Trust may require Shareholders to pay a withdrawal charge, a sales charge, or any other form of
charge to the Trust, to the underwriter or to any other person designated by the Trustees upon
redemption or repurchase of Shares in such amount as shall be determined from time to time by the
Trustees. The Trust may also charge a redemption or repurchase fee in such amount as may be
determined from time to time by the Trustees.
(a) Payment of Shares redeemed or repurchased may, at the option of the
Trustees or such officer or officers as they may duly authorize for the purpose, in
their complete discretion, be made in cash, or in kind, or partially in cash and
partially in kind. In case of payment in kind the Trustees, or their delegate, shall
have absolute discretion as to what security or securities shall be distributed in
kind and the amount of same, and the securities shall be valued for purposes of
distribution at the figure at which they were appraised in computing the net asset
value of the Shares, provided that any Shareholder who cannot legally acquire
securities so distributed in kind by reason of the prohibitions of the 1940 Act
shall receive cash.
(b) Shareholders shall, upon demand, disclose to the Trustees in writing such
information with respect to direct and indirect ownership of Shares of the Trust as
the Trustees deem necessary to comply with the provisions of the Code, the 1940 Act
or other applicable laws or regulations, or to comply with the requirements of any
other taxing or regulatory authority.
5.5 Rights of Shareholders. The Shares shall be personal property giving only the rights in
this Declaration specifically set forth. The ownership of the Trust Property of every description
and the right to conduct any business 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, subject to the right of the Trustees to charge certain expenses
directly to Shareholders, as provided in the last sentence of Section 3.7, 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).
5.6 Trust Only. It is the intention of the Trustees to create only the relationship of
Trustee and beneficiary between the Trustees and each Shareholder from time to time. It is not the
intention of the Trustees to create a general partnership, limited partnership, joint stock
association, corporation, bailment or any form of legal relationship other than a trust. Nothing
in this Declaration shall be construed to make the Shareholders, either by themselves or with the
Trustees, partners or members of a joint stock association.
5.7 Register of Shares. A register shall be kept at the Trust or any transfer agent duly
appointed by the Trustees under the direction of the Trustees which shall contain the names and
addresses of the Shareholders and the number of Shares held by them respectively and a record of
all transfers thereof. Separate registers shall be established and maintained for each class and
each series of each class. Each such register shall be conclusive as to who are the holders of the
Shares of the applicable class and series and who shall be entitled to receive dividends or
distributions or otherwise to exercise or enjoy the rights of Shareholders. No Shareholder shall
be entitled to receive payment of any dividend or distribution, nor to have notice given to him as
herein provided, until he has given his address to a transfer agent or such other officer or agent
of the Trustees as shall keep the register for entry thereon. The Shares
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shall be uncertificated, and shall be entered in the register as they are issued; however, the
Trustees, in their discretion, may authorize the issuance of share certificates and promulgate
appropriate fees therefor and rules and regulations as to their use.
5.8 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 registrars shall perform the
duties usually performed by transfer agents and registrars of stock in a corporation, as modified
by the Trustees.
5.9 Transfer of Shares. Shares shall be transferable on the records of the Trust only by the
record holder thereof or by its agent thereto duly authorized in writing, upon delivery to the
Trustees or a transfer agent of the Trust of a duly executed instrument of transfer, together with
such evidence of the genuineness of each such execution and authorization and of other matters as
may reasonably be required. Upon such delivery the transfer shall be recorded on the applicable
register of the Trust. Until such record is made, the Shareholder of Record shall be deemed to be
the holder of such Shares for all purposes hereof and neither the Trustees nor any transfer agent
or registrar nor any officer, employee or agent of the Trust shall be affected by any notice of the
proposed transfer.
Any person becoming entitled to any Shares in consequence of the death, bankruptcy or
incompetence of any Shareholder, or otherwise by operation of law, shall be recorded on the
applicable register of Shares as the holder of such Shares upon production of the proper evidence
thereof to the Trustees or a transfer agent of the Trust, but until such record is made, the
Shareholder of Record shall be deemed to be the holder of such for all purposes hereof, and neither
the Trustees nor any transfer agent or registrar nor any officer or agent of the Trust shall be
affected by any notice of such death, bankruptcy or incompetence or other operation of law.
5.10 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 served or given if mailed, postage
prepaid, addressed to any Shareholder of Record at his last known address as recorded on the
applicable register of the Trust and may be sent together with any such notice or other
communication to another Shareholder at the same address.
5.11 Net Asset Value. The value of the assets of the Trust, the amount of liabilities of the
Trust and the net asset value of each outstanding Common Share of the Trust shall be determined at
such time or times on such days as the Trustees may determine, in accordance with the 1940 Act.
The method of determination of net asset value shall be determined by the Trustees. The power and
duty to make net asset value determinations and calculations may be delegated by the Trustees.
5.12 Distributions to Shareholders.
(a) The Trustees shall from time to time distribute among the Shares such
proportion of the net profits, surplus (including paid-in surplus), capital or
assets held by the Trustees as they may deem proper or as may otherwise be
determined in the instrument setting forth the terms of such Shares such class or
series of Shares, which need not be ratable with respect to distributions in respect
of Shares of any other class or series thereof of the Trust. Such distributions may
be made in cash or property (including without limitation any type of obligations of
the Trust or any assets thereof) or any combination thereof.
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(b) Distributions may be made to the Shareholders of record entitled to such
distribution at the time such distribution is declared or at such later date as
shall be determined by the Trust prior to the date of payment.
(c) The Trustees may always retain from any source such amount as they may deem
necessary to pay the debts or expenses of the Trust or to meet obligations of the
Trust, or as they otherwise may deem desirable to use in the conduct of its affairs
or to retain for future requirements or extensions of the business of the Trust.
ARTICLE VI
Shareholders
6.1 Meetings of Shareholders. The Trust may, but shall not be required to, hold annual
meetings of the holders of any class or series of Shares. 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 except matters on which a
vote of Shares is required by applicable law, this Declaration or resolution of the Trustees. Any
matter required to be submitted for approval of any of the Shares and affecting one or more classes
or series shall require approval by the required vote of Shares of the affected class or classes
and series voting together as a single class and, if such matter affects one or more classes or
series thereof differently from one or more other classes or series thereof or from one or more
series of the same class, approval by the required vote of Shares of such other class or classes or
series or series voting as a separate class shall be required in order to be approved with respect
to such other class or classes or series or series; provided, however, that except to the extent
required by the 1940 Act, there shall be no separate class votes on the election or removal of
Trustees or the selection of auditors for the Trust. Shareholders of a particular class or series
thereof shall not be entitled to vote on any matter that affects the rights or interests of only
one or more other classes or series of such other class or classes or only one or more other series
of the same class. There shall be no cumulative voting in the election or removal of Trustees.
6.3 Notice of Meeting, Shareholder Proposals and Record Date. Notice of all meetings of
Shareholders, stating the time, place and purposes of the meeting, shall be given by the Trustees
to each Shareholder of Record entitled to vote thereat at its registered address, sent 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 the 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
120 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.
6.4 Quorum and Required Vote.
(a) The holders of a majority of the outstanding Shares of the Trust on the
record date present in person or by proxy shall constitute a quorum at any meeting
of the Shareholders for purposes of conducting business on which a vote of all
Shareholders of the Trust is being taken. The holders of a majority 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
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on which a vote of Shareholders of such class or classes is being taken. The
holders of a majority 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. Abstentions and
broker non-votes will be included for purposes of determining whether a quorum is
present. Abstentions and broker non-votes will be treated as votes present at a
Shareholders’ meeting, but will not be treated as votes cast. Abstentions and
broker non-votes, therefore, will have no effect on proposals which require a
plurality or majority of votes cast for approval, but will have the same effect as a
vote “against” on proposals requiring any percentage of the outstanding voting
securities of the Trust for approval.
(b) Subject to any provision of applicable law, this Declaration or resolution
of the Trustees specifying or requiring a greater or lesser vote requirement for the
transaction of any matter of business at any meeting of Shareholders, (i) the
affirmative vote of a plurality of the Shares 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.
6.5 Proxies, etc. At any meeting of Shareholders, any holder of Shares entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting unless it shall
have been placed on file with the Secretary, or with such other officer or agent of the Trust as
the Secretary may direct, for verification prior to the time at which such vote shall be taken.
Pursuant to a resolution of a majority of the Trustees, proxies may be solicited in the name of one
or more Trustees or one or more of the officers or employees of the Trust. Only Shareholders of
Record on the record date 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, regulation or any
exchange on which Shares are listed, a report of operations containing financial statements of the
Trust prepared in conformity with generally accepted accounting principles and applicable law.
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6.7 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
Limited Term of Existence; Termination of Trust; Amendment; Mergers; Etc.
7.1 Limited Term of Existence.
(a)
Unless extended by an amendment to this Section 7.1 in accordance
with Section 7.3, the Trust created hereby shall have a limited period of existence and shall
cease to exist at the close of business on December 31, 2014, except that the Trust
shall continue to exist for the purpose of paying, satisfying, and discharging any
existing debts or obligations, collecting and distributing its assets, and doing all
other acts required to liquidate and wind up its business and affairs. After the
close of business on December 31, 2014, if the Trust has not liquidated and wound up
its business and affairs, the Trustees shall proceed to wind up the affairs of the
Trust and all of the powers of the Trustees under this Declaration shall continue
until the affairs of the Trust shall have been wound up, including the power to
fulfill or discharge the contracts of the Trust, collect its assets, sell, convey,
assign, exchange, merge where the Trust is not the survivor, transfer or otherwise
dispose of all or any part of the remaining Trust Property to one or more Persons at
public or private sale for consideration which may consist in whole or in part in
cash, securities or other property of any kind, discharge or pay its liabilities and
do all other acts appropriate to liquidate its business.
(b) 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.
(c) After the winding up and termination of the Trust and distribution to the
Shareholders as herein provided, a majority of the Trustees shall execute and lodge
among the records of the Trust an instrument in writing setting forth the fact of
such termination and shall execute and file a certificate of cancellation with the
Secretary of State of the State of Delaware. Upon termination of the Trust, the
Trustees shall thereupon be discharged from all further liabilities and duties
hereunder, and the rights and interests of all Shareholders shall thereupon cease.
7.2 Termination.
(a) Upon the dissolution of the Trust:
(i) The Trust shall carry on no further 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
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discharge the contracts of the Trust, collect its assets, sell, convey,
assign, exchange, merge where the Trust is not the survivor, transfer or
otherwise dispose of all or any part of the remaining Trust Property to one
or more Persons at public or private sale for consideration which may
consist in whole or in part in cash, securities or other property of any
kind, discharge or pay its liabilities, and do all other acts appropriate to
liquidate its business; provided that any sale, conveyance, assignment,
exchange, merger in which the Trust is not the survivor, transfer or other
disposition of all or substantially all the Trust Property of the Trust
shall require approval of the principal terms of the transaction and the
nature and amount of the consideration.
(iii) After paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities and refunding
agreements, as they deem necessary for their protection, the Trustees may
distribute the remaining Trust Property, in cash or in kind or partly each,
among the Shareholders according to their respective rights.
(b) After the winding up and termination of the Trust and distribution to the
Shareholders as herein provided, a majority of the Trustees shall execute and lodge
among the records of the Trust an instrument in writing setting forth the fact of
such termination and shall execute and file a certificate of cancellation with the
Secretary of State of the State of Delaware. Upon termination of the Trust, the
Trustees shall thereupon be discharged from all further liabilities and duties
hereunder, and the rights and interests of all Shareholders shall thereupon cease.
(c) The Trustees may, to the extent they deem appropriate, adopt a plan of
liquidation at any time, which plan of liquidation may set forth the terms and
conditions for implementing the termination of the Trust’s existence under this
Article VII. Shareholders shall not be entitled to vote on the adoption of any such
plan or the termination of the Trust’s existence under this Article VII.
7.3 Amendment Procedure.
(a) Other than Sections 2.2, 2.3, 3.8, 6.1, 6.7, 7.3, 7.4 and 7.6 and other
than as set forth in the last sentence of this Section 7.3(a), this Declaration may
be amended, after a majority of the Trustees have approved a resolution therefor, by
the affirmative vote of the holders of not less than a majority of the affected
Shares outstanding on the record date and present and voting on such amendment.
Sections 2.2, 2.3, 3.8, 6.1, 6.7, 7.3, 7.4 and 7.6 may be amended, after a majority
of the Trustees 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.
The Trustees also may amend this Declaration without any vote of Shareholders for
any of the purposes set forth in Section 6.2, to change the name of the Trust or any
class or series, to make any change that does not adversely affect the relative
rights or preferences of any class or series of Shares or to conform this
Declaration to the requirements of the 1940 Act or any other applicable law, but the
Trustees shall not be liable for failing to do so.
(b) Nothing contained in this Declaration shall permit the amendment of this
Declaration to impair the exemption from personal liability of the Shareholders,
Trustees, officers, employees and agents of the Trust or to permit assessments upon
Shareholders.
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(c) An amendment duly adopted by the requisite vote of the Board of Trustees
and, if required, Shareholders as aforesaid, shall become effective at the time of
such adoption or at such other time as may be designated by the Board of Trustees or
Shareholders, as the case may be. A certification signed by a majority of the
Trustees setting forth an amendment and reciting that it was duly adopted by the
Trustees and, if required, Shareholders as aforesaid, or a copy of the Declaration,
as amended, and executed by a majority of the Trustees, shall be conclusive evidence
of such amendment when lodged among the records of the Trust or at such other time
designated by the Board.
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.
7.4 Merger; Consolidation and Sale of Assets. Subject to Section 7.6, the Trust may merge or
consolidate with any other corporation, association, trust or other organization or may sell, lease
or exchange all or substantially all of the Trust Property or the property, including its goodwill,
upon such terms and conditions and for such consideration when and as authorized by two-thirds of
the Trustees and approved by the affirmative vote of the holders of not less than 75% 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 or exchange 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 of Investment Company. No holder of Shares of any class or series,
other than in accordance with the provisions of Section 23(c) (excluding Rule 23c-3 thereunder) of
the 1940 Act and other than to the extent expressly determined by the Trustees with respect to
Shares qualifying as preferred stock pursuant to Section 18(a) of the 1940 Act, shall have any
right to require the Trust or any person controlled by the Trust to purchase any of such holder’s
Shares. The Trust may be converted at any time from a “closed-end management investment company”
to an “open-end management investment company”, as those terms are each 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: (i) a majority of the Trustees then in office, (ii) the holders of a
majority of the Trust’s outstanding Shares entitled to vote thereon, and (iii) such vote or votes
of the holders of any class or classes or series of Shares as may be required by the 1940 Act.
Upon conversion to an open-end management investment company, each Share would become a “redeemable
security,” as such term is defined by the 1940 Act. Upon the recommendation and subsequent
adoption of such a proposal and the necessary amendments to this Declaration to permit such a
conversion of the Trust’s outstanding Shares entitled to vote, the Trust shall, upon complying with
any requirements of the 1940 Act and state law, become an open-end management investment company or
interval company, as proposed.
7.6 Certain Transactions.
(a) Notwithstanding any other provision of this Declaration and subject to the
exceptions provided in paragraph (d) of this Section, the types of transactions
described in paragraph (c) of this Section shall require the affirmative vote or
consent of the holders of eighty percent (80%) of the Shares of each class
outstanding and entitled to vote, voting as a 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 law or by
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the terms of any class or series of preferred stock, whether now or hereafter
authorized, or any agreement between the Trust and any national securities exchange.
(b) The term “Principal Shareholder” shall mean any Person which is the
beneficial owner, directly or indirectly, of five percent (5%) or more of the
outstanding Shares and shall include any affiliate or associate, as such terms are
defined in clause (ii) below, of such Person. For the purposes of this Section, in
addition to the Shares which a Person beneficially owns directly, (a) any Person
shall be deemed to be the beneficial owner of any Shares (i) which it has the right
to acquire pursuant to any agreement or upon exercise of conversion rights or
warrants, or otherwise (but excluding share options granted by the Trust) or (ii)
which are beneficially owned, directly or indirectly (including Shares deemed owned
through application of clause (i) above), by any other Person with which its
“affiliate” or “associate” (as defined below) has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing of Shares,
or which is its “affiliate” or “associate” as those terms are defined in Rule 12b-2
of the General Rules and Regulations under the Securities Exchange Act of 1934 as in
effect on the date of initial adoption of this Declaration, and (b) the outstanding
Shares shall include Shares deemed owned through application of clauses (i) and (ii)
above but shall not include any other Shares which may be issuable pursuant to any
agreement, or upon exercise of conversion rights or warrants, or otherwise.
(c) This Section shall apply to the following transactions:
(i) The merger or consolidation of the Trust or any subsidiary of the
Trust with or into any Principal Shareholder.
(ii) The issuance of any securities of the Trust to any Principal
Shareholder for cash (other than pursuant to any automatic dividend
reinvestment plan or pursuant to any offering in which such Principal
Shareholder acquires securities that represent no greater a percentage of
any class or series of securities being offered than the percentage of any
class of Shares beneficially owned by such Principal Shareholder immediately
prior to such offering or, in the case of securities, offered in respect of
another class or series, the percentage of such other class or series
beneficially owned by such Principal Shareholder immediately prior to such
offering).
(iii) The sale, lease or exchange of all or any substantial part of the
assets of the Trust to any Principal Shareholder (except assets having an
aggregate fair market value of less than $1,000,000, aggregating for the
purpose of such computation all assets sold, leased or exchanged in any
series of similar transactions within a twelve-month period.)
(iv) The sale, lease or exchange to the Trust or any subsidiary
thereof, in exchange for securities of the Trust of any assets of any
Principal Shareholder (except assets having an aggregate fair market value
of less than $1,000,000, aggregating for the purposes of such computation
all assets sold, leased or exchanged in any series of similar transactions
within a twelve-month period).
(v) The purchase by the Trust or any Person controlled by the Trust of
any Common Shares of the Trust from such Principal Shareholder or any
17
person to whom such Principal Shareholder shall have transferred such
Common Shares.
(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 of the Trust shall by resolution have approved a memorandum of
understanding 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 Trust and
its subsidiaries and of which such Person is not a Principal Shareholder.
(e) The Board of Trustees shall have the power and duty to determine for the
purposes of this Section on the basis of information known to the Trust whether (i)
a Person beneficially owns five percent (5%) or more of the outstanding Shares, (ii)
a Person is an “affiliate” or “associate” (as defined above) of another, (iii) the
assets being acquired or leased to or by the Trust or any subsidiary thereof
constitute a substantial part of the assets of the Trust and have an aggregate fair
market value of less than $1,000,000, and (iv) the memorandum of understanding
referred to in paragraph (d) hereof is substantially consistent with the transaction
covered thereby. Any such determination shall be conclusive and binding for all
purposes of this Section.
ARTICLE VIII
Miscellaneous
8.1 References; Headings; Counterparts. In this Declaration and in any restatements and/or
amendments, references to this instrument and all expressions of similar effect to “herein,”
“hereof’ and “hereunder,” shall be deemed to refer to this instrument as amended or affected by any
such restatements and/or amendments. Headings are placed herein for convenience of reference only
and shall not be taken as a part hereof or control or affect the meaning, construction or effect of
this instrument. Whenever the singular number is used herein, the same shall include the plural;
and the neuter, masculine and feminine genders shall include each other, as applicable. Any
references herein to specific sections of the Delaware Statutory Trust Act, the Code or the 1940
Act shall refer to such sections as amended from time to time or any successor sections thereof.
8.2 Filing. This Declaration and any amendment (including any supplement) hereto shall be
filed in such places as may be required or as the Trustees deem appropriate. Each amendment shall
be accompanied by a certificate signed and acknowledged by a Trustee stating that such action was
duly taken in a manner provided herein, and shall, upon insertion in the Trust’s minute book, be
conclusive evidence of all amendments contained therein. A restated Declaration, containing the
original Declaration and all amendments theretofore made, may be executed from time to time by a
majority of the Trustees and shall, upon insertion in the Trust’s minute book, be conclusive
evidence of all amendments contained therein and may thereafter be referred to in lieu of the
original Agreement and Declaration of Trust and the various amendments thereto.
8.3 Resident Agent. The Trust shall maintain a resident agent in the State of Delaware, which
agent shall initially be named in the Trust’s Certificate of Trust. The Trustees may designate a
successor resident agent, provided, however, that such appointment shall not become effective until
an amendment or other necessary document is delivered to the office of the Secretary of State.
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8.4 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.
8.5 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.
8.6 Reliance by Third Parties. Any certificate executed by an individual who, according to
the records of the Trust, or of any recording office in which this Declaration may be recorded,
appears to be a Trustee hereunder, certifying to: (a) the number or identity of Trustees or
Shareholders, (b) the name of the Trust, (c) the due authorization of the execution of any
instrument or writing, (d) the form of any vote passed at a meeting of Trustees or Shareholders,
(e) the fact that the number of Trustees or Shareholders present at any meeting or executing any
written instrument satisfies the requirements of this Declaration, (f) the form of any By-Laws
adopted by or the identity of any officers elected by the Trustees, or (g) the existence of any
fact or facts that in any manner relate to the affairs of the Trust, shall be conclusive evidence
as to the matters so certified in favor of any person dealing with the Trustees and their
successors.
8.7 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 executed this instrument as of June 3, 2009.
| /s/ Xxxxx X. Xxxxx | ||
Title:
Secretary and Trustee |
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