EXHIBIT b.2
AMENDED AND RESTATED BYLAWS
of
AEW REAL ESTATE INCOME FUND
(Dated as of October 10, 2002)
ARTICLE 1
Agreement and Declaration of Trust and Principal Office
1.1 Principal Office of the Trust. A principal office of the Trust shall
be located in Boston, Massachusetts. The Trust may have other principal offices
within or without Massachusetts as the Trustees may determine or as they may
authorize.
1.2 Agreement and Declaration of Trust. These Bylaws shall be subject to
the Agreement and Declaration of Trust, as amended or restated from time to time
(the "Declaration of Trust"), of AEW Real Estate Income Fund, the Massachusetts
business trust established by the Declaration of Trust (the "Trust").
Capitalized terms used in these Bylaws and not otherwise defined herein shall
have the meanings given to such terms in the Declaration of Trust.
ARTICLE 2
Meetings of Trustees
2.1 Regular Meetings. Regular meetings of the Trustees may be held
without call or notice at such places and at such times as the Trustees may from
time to time determine, provided that notice of the first regular meeting
following any such determination shall be given to absent Trustees. A regular
meeting of the Trustees may be held without call or notice immediately after and
at the same place as the annual meeting of the Shareholders.
2.2 Special Meetings. Special meetings of the Trustees may be held at any
time and at any place designated in the call of the meeting when called by the
Chairman of the Trustees, the President or the Treasurer or by two or more
Trustees, sufficient notice thereof being given to each Trustee by the Secretary
or an Assistant Secretary or by the officer or the Trustees calling the meeting.
2.3 Notice. It shall be sufficient notice to a Trustee of a special
meeting to send notice by mail or overnight courier at least forty-eight hours,
or by facsimile, telegram, telex, telecopy, e-mail or other electronic
transmission method at least twenty-four hours, before the meeting addressed to
the Trustee at his or her usual or last known business or residence address or
to give notice to him or her in person or by telephone at least twenty-four
hours before the
meeting. Notice of a meeting need not be given to any Trustee if a written
waiver of notice, executed by him or her, before or after the meeting, is filed
with the records of the meeting, or to any Trustee who attends the meeting
without protesting prior thereto or at its commencement the lack of notice to
him or her. Except as required by law, neither notice of a meeting nor a waiver
of a notice need specify the purposes of the meeting.
2.4 Quorum. At any meeting of the Trustees a majority of the Trustees
then in office shall constitute a quorum. Any meeting may be adjourned from time
to time by a majority of the votes cast upon the question, whether or not a
quorum is present, and the meeting may be held as adjourned without further
notice to any Trustee who was present at the time of such adjournment; notice of
the time and place of any adjourned session of such meeting shall, however, be
given in the manner provided in Section 2.3 of these Bylaws to each Trustee who
was not present at the time of such adjournment.
2.5 Action by Vote. When a quorum is present at any meeting, a majority
of Trustees present may take any action, except when a larger vote is expressly
required by law, by the Declaration of Trust or by these Bylaws. Subject to
applicable law, the Trustees by majority vote may delegate to any one of their
number their authority to approve particular matters or take particular actions
on behalf of the Trust.
2.6 Action by Writing. Except as required by law, any action required or
permitted to be taken at any meeting of the Trustees may be taken without a
meeting if a majority of the Trustees (or such larger proportion thereof as
shall be required by any express provision of the Declaration of Trust or these
Bylaws) consent to the action in writing and such written consents are filed
with the records of the meetings of the Trustees. Such consent shall be treated
for all purposes as a vote taken at a meeting of Trustees. Written consents of
the Trustees may be executed in one or more counterparts. Execution of a written
consent or waiver and delivery thereof to the Trust may be accomplished by mail,
overnight courier, facsimile, telex, telecopy, e-mail or other electronic
transmission.
2.7 Presence through Communications Equipment. Except as required by
applicable law, the Trustees may participate in a meeting of Trustees by means
of a conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other at the same time,
and participation by such means shall constitute presence in person at a
meeting.
ARTICLE 3
Officers
3.1 Enumeration; Qualification. The officers of the Trust shall be a
President, a Treasurer, a Secretary, and such other officers, if any, as the
Trustees from time to time may in their discretion elect. The Trust may also
have such agents as the Trustees from time to time may in their discretion
appoint. The Chairman of the Trustees, if one is elected, shall be a Trustee,
may (but need not) be a Shareholder and shall be considered an officer of the
Trustees
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and not of the Trust. Any other officer may but need not be a Trustee or a
Shareholder. Any two or more offices may be held by the same person.
3.2 Election. The President, the Treasurer, and the Secretary shall be
elected annually by the Trustees. Other officers, if any, may be elected or
appointed by the Trustees at the same meeting at which the President, Treasurer
and Secretary are elected, or at any other time. Vacancies in any office may be
filled at any time.
3.3 Tenure. The Chairman of the Trustees, if one is elected, the
President, the Treasurer and the Secretary shall hold office until their
respective successors are chosen and qualified, or in each case until he or she
sooner dies, resigns, is removed with or without cause or becomes disqualified.
Each other officer shall hold office and each agent of the Trust shall retain
authority at the pleasure of the Trustees.
3.4 Powers. Subject to the other provisions of these Bylaws, each officer
shall have, in addition to the duties and powers herein and in the Declaration
of Trust set forth, such duties and powers as are commonly incident to the
office occupied by him or her as if the Trust were organized as a Massachusetts
business corporation and such other duties and powers as the Trustees may from
time to time designate.
3.5 Chairman; President; Vice President; Chief Operating Officer. Unless
the Trustees otherwise provide, the Chairman of the Trustees or, if there is
none or in the absence of the Chairman, the President shall preside at all
meetings of the Trustees. Unless the Trustees otherwise provide, the President,
or if there is none or in the absence of the President, the Chairman, shall
preside at all meetings of the Shareholders. The Chairman of the Trustees shall
perform such other duties as may be assigned to him by the Trustees. Any Vice
President shall have such duties and powers as may be designated from time to
time by the Trustees or the President. Any Chief Operating Officer shall have
such duties and powers as may be designated from time to time by the Trustees or
the President.
3.6 Treasurer; Assistant Treasurer. The Treasurer shall be the chief
financial and accounting officer of the Trust, and shall, subject to the
provisions of the Declaration of Trust and to any arrangement made by the
Trustees with a custodian, investment adviser, sub-adviser or manager,
administrator or sub-administrator, or transfer, shareholder servicing or
similar agent, be in charge of the valuable papers, books of account and
accounting records of the Trust, and shall have such other duties and powers as
may be designated from time to time by the Trustees or by the President or
required by law. Any Assistant Treasurer shall have such duties and powers as
may be designated from time to time by the Trustees or the President.
3.7 Secretary; Assistant Secretary. The Secretary shall record all
proceedings of the Shareholders and the Trustees in books to be kept therefor,
which books or a copy thereof shall be kept at the principal office of the
Trust. In the absence of the Secretary from any meeting of the Shareholders or
Trustees, an Assistant Secretary, or if there be none or if he or she is absent,
a temporary secretary chosen at such meeting shall record the proceedings
thereof in the aforesaid books. Any Assistant Secretary shall have such duties
and powers as may be designated from time to time by the Trustees or the
President.
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3.8 Chief Executive Officer. The Chief Executive Officer of the Trust
shall be the President or such other officer as is designated by the Trustees
and shall, subject to the control of the Trustees, have general charge and
supervision of the business of the Trust and, except as the Trustees shall
otherwise determine, preside at all meetings of the Shareholders. If no such
designation is made, the President shall be the Chief Executive Officer.
3.9 Resignations; Removals. Any officer may resign at any time by written
instrument signed by him or her and delivered to the Chairman, if any, the
President or the Secretary, or to a meeting of the Trustees. Such resignation
shall be effective upon receipt unless specified to be effective at some other
time. The Trustees may remove any officer with or without cause. Except to the
extent expressly provided in a written agreement with the Trust, no officer
resigning and no officer removed shall have any right to any compensation for
any period following his or her resignation or removal, or any right to damages
on account of such removal.
ARTICLE 4
Committees
4.1 Quorum; Voting. Except as provided below or as otherwise specifically
provided in the resolutions constituting a Committee of the Trustees and
providing for the conduct of its meetings, a majority of the members of any
Committee of the Trustees shall constitute a quorum for the transaction of
business, and any action of such a Committee may be taken at a meeting by a vote
of a majority of the members present (a quorum being present) or evidenced by
one or more writings signed by such a majority. Members of a Committee may
participate in a meeting of such Committee by means of a conference telephone or
other communications equipment by means of which all persons participating in
the meeting can hear each other at the same time and participation by such means
shall constitute presence in person at a meeting.
With respect to any committee of the Trustees responsible for valuing the
Trust's portfolio securities, one or more of the Committee members shall
constitute a quorum for the transaction of business.
Except as specifically provided in the resolutions constituting a Committee
of the Trustees and providing for the conduct of its meetings, Article 2,
Section 2.3 of these Bylaws relating to special meetings shall govern the notice
requirements for Committee meetings, except that it shall be sufficient notice
to any committee of the Trustees responsible for valuing the Trust's portfolio
securities to send notice by telegram, telex or telecopy or other electronic
means (including by telephone voice-message or e-mail) at least fifteen minutes
before the meeting.
ARTICLE 5
Reports
5.1 General. The Trustees and officers shall render reports at the time
and in the manner required by the Declaration of Trust or any applicable law.
Officers and Committees shall render such additional reports as they may deem
desirable or as may from time to time be required by the Trustees.
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ARTICLE 6
Fiscal Year
6.1 General. Except as from time to time otherwise provided by the
Trustees, the initial fiscal year of the Trust shall end on such date as is
determined in advance or in arrears by the Treasurer, and the subsequent fiscal
years shall end on such date in subsequent years.
ARTICLE 7
Seal
7.1 General. The seal of the Trust shall, subject to alteration by the
Trustees, consist of a flat-faced die with the word "Massachusetts," together
with the name of the Trust and the year of its organization cut or engraved
thereon; provided, however, that unless otherwise required by the Trustees, the
seal shall not be necessary to be placed on, and its absence shall not impair
the validity of, any document, instrument or other paper executed and delivered
by or on behalf of the Trust.
ARTICLE 8
Execution of Papers
8.1 General. Except as the Trustees may generally or in particular cases
authorize the execution thereof in some other manner, all deeds, leases,
transfers, contracts, bonds, notes, checks, drafts and other obligations and all
registration statements and amendments thereto and all applications and
amendments thereto to the Securities and Exchange Commission made, accepted or
endorsed by the Trust shall be executed by the President, any Vice President,
the Treasurer or the Secretary or by whomever else shall be designated for that
purpose by vote of the Trustees, and need not bear the seal of the Trust.
ARTICLE 9
Issuance of Share Certificates
9.1 Share Certificates. Each Shareholder shall be entitled to a
certificate stating the number of Shares owned by him or her, in such form as
shall be prescribed from time to time by the Trustees. Such certificates shall
be signed by the President or any Vice President and by the Treasurer or any
Assistant Treasurer. Such signatures may be by facsimile if the certificate is
signed by a transfer agent, or by a registrar, other than a Trustee, officer or
employee of the Trust. In case any officer who has signed or whose facsimile
signature has been placed on such certificate shall cease to be such officer
before such certificate is issued, it may be issued by the Trust with the same
effect as if he or she were such officer at the time of its issuance.
Notwithstanding the foregoing, in lieu of issuing certificates for Shares,
the Trustees or the transfer agent may either issue receipts therefor or may
keep accounts upon the books of the Trust for the record holders of such Shares,
who shall in either case be deemed, for all purposes
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hereunder, to be the holders of certificates for such Shares as if they had
accepted such certificates and shall be held to have expressly assented and
agreed to the terms hereof.
9.2 Loss of Certificates. In case of the alleged loss or destruction or
the mutilation of a share certificate, a duplicate certificate may be issued in
place thereof, upon such terms as the Trustees shall prescribe.
9.3 Issuance of New Certificates to Pledgee. A pledgee of Shares
transferred as collateral security shall be entitled to a new certificate if the
instrument of transfer substantially describes the debt or duty that is intended
to be secured thereby. Such new certificate shall express on its face that it is
held as collateral security, and the name of the pledgor shall be stated
thereon, who alone shall be liable as a Shareholder and entitled to vote
thereon.
9.4 Discontinuance of Issuance of Certificates. Notwithstanding anything
to the contrary in this Article 9, the Trustees may at any time discontinue the
issuance of share certificates and may, by written notice to each Shareholder,
require the surrender of share certificates to the Trust for cancellation. Such
surrender and cancellation shall not affect the ownership of Shares in the
Trust.
ARTICLE 10
Shareholders' Voting Powers and Meetings
10.1 Voting Powers. The Shareholders shall have power to vote only (i) for
the election or removal of Trustees as provided in Article IV, Sections 1 and 3
of the Declaration of Trust, (ii) with respect to any Manager or sub-adviser as
provided in Article IV, Section 8 of the Declaration of Trust to the extent
required by the 1940 Act, (iii) with respect to certain transactions and other
matters to the extent and as provided in Article V, Sections 2 and 3 of the
Declaration of Trust, (iv) with respect to any termination of this Trust to the
extent and as provided in Article IX, Section 4 of the Declaration of Trust (for
the avoidance of any doubt, Shareholders shall have no separate right to vote
with respect to the termination of the Trust or a series or class of Shares if
the Trustees (including the Continuing Trustees) exercise their right to
terminate the Trust or such series or class pursuant to clauses (ii) or (y) of
Article IX, Section 4 of the Declaration of Trust), (v) with respect to any
amendment of the Declaration of Trust to the extent and as provided in Article
IX, Section 7 of the Declaration of Trust, (vi) to the same extent as the
stockholders of a Massachusetts business corporation as to whether or not a
court action, 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,
and (vii) with respect to such additional matters relating to the Trust as may
be required by law, the Declaration of Trust, these Bylaws or any registration
of the Trust with the Securities and Exchange Commission (or any successor
agency) or any state, or as the Trustees may consider necessary or desirable.
Each whole Share shall be entitled to one vote as to any matter on which it is
entitled to vote and each fractional Share shall be entitled to a proportionate
fractional vote, except as otherwise provided in the Declaration of Trust, these
Bylaws, or required by applicable law. Except as otherwise provided in the
Declaration of Trust or in respect of the terms of a class of preferred shares
of beneficial interest
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of the Trust as reflected in these Bylaws or required by applicable law, all
Shares of the Trust then entitled to vote shall be voted in the aggregate as a
single class without regard to classes or series of Shares. There shall be no
cumulative voting in the election of Trustees. Shares may be voted in person or
by proxy. A proxy with respect to Shares held in the name of two or more persons
shall be valid if executed by any one of them unless at or prior to exercise of
the proxy the Trust receives a specific written notice to the contrary from any
one of them. The placing of a Shareholder's name on a proxy pursuant to
telephonic or electronically transmitted instructions obtained pursuant to
procedures reasonably designed to verify that such instructions have been
authorized by such Shareholder shall constitute execution of such proxy by or on
behalf of such Shareholder. A proxy purporting to be executed by or on behalf of
a Shareholder shall be deemed valid unless challenged at or prior to its
exercise and the burden of proving invalidity shall rest on the challenger.
Until Shares of a particular class or series are issued, the Trustees may
exercise all rights of Shareholders and may take any action required by law, the
Declaration of Trust or these Bylaws to be taken by Shareholders as to such
class or series.
10.2 Voting Power and Meetings. Except as provided in the next sentence,
regular meetings of the Shareholders for the election of Trustees and the
transaction of such other business as may properly come before the meeting shall
be held, so long as Shares are listed for trading on the American Stock
Exchange, on at least an annual basis, on such day and at such place as shall be
designated by the Trustees. In the event that such a meeting is not held in any
annual period if so required, whether the omission be by oversight or otherwise,
a subsequent special meeting may be called by the Trustees and held in lieu of
such meeting with the same effect as if held within such annual period. Special
meetings of the Shareholders or any or all classes or series of Shares may also
be called by the Trustees from time to time for such other purposes as may be
prescribed by law, by the Declaration of Trust or by these Bylaws, or for the
purpose of taking action upon any other matter deemed by a majority of the
Trustees and a majority of the Continuing Trustees to be necessary or desirable.
A special meeting of Shareholders may be held at any such time, day and place as
is designated by the Trustees. Written notice of any meeting of Shareholders,
stating the date, time, place and purpose of the meeting, shall be given or
caused to be given by a majority of the Trustees and a majority of the
Continuing Trustees at least ten days before such meeting to each Shareholder
entitled to vote thereat by leaving such notice with the Shareholder at his or
her residence or usual place of business or by mailing such notice, postage
prepaid, to the Shareholder's address as it appears on the records of the Trust.
Such notice may be given by the Secretary or an Assistant Secretary or by any
other officer or agent designated for such purpose by the Trustees. Whenever
notice of a meeting is required to be given to a Shareholder under the
Declaration of Trust or these Bylaws, a written waiver thereof, executed before
or after the meeting by such Shareholder or his or her attorney thereunto
authorized and filed with the records of the meeting, shall be deemed equivalent
to such notice. Notice of a meeting need not be given to any Shareholder who
attends the meeting without protesting prior thereto or at its commencement the
lack of notice to such Shareholder. No ballot shall be required for any election
unless required by a Shareholder present or represented at the meeting and
entitled to vote in such election. Notwithstanding anything to the contrary in
this Section 10.2, no matter shall be properly before any annual or special
meeting of Shareholders and no business shall be transacted thereat unless in
accordance with Section 10.6 of these Bylaws.
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10.3 Quorum and Required Vote. Except when a larger quorum is required by
any provision of law, the rules and regulations of the American Stock Exchange,
or the Declaration of Trust or these Bylaws, thirty percent (30%) of the Shares
entitled to vote on a particular matter shall constitute a quorum for the
transaction of business at a Shareholders' meeting, except that where any
provision of law or the Declaration of Trust or these Bylaws permits or requires
that holders of any class or series of Shares shall vote as an individual class
or series, then thirty percent (30%) (unless a larger quorum is required as
specified above) of Shares of that class or series entitled to vote shall be
necessary to constitute a quorum for the transaction of business by that class
or series. Any lesser number shall be sufficient for adjournments. Any adjourned
session or sessions may be held, within a reasonable time after the date set for
the original meeting, without the necessity of further notice. Except when a
different vote is required by any provision of law or the Declaration of Trust
or these Bylaws, a plurality of the quorum of Shares necessary for the
transaction of business at a Shareholders' meeting shall decide any questions
and a plurality of Shares voted shall elect a Trustee, provided that where any
provision of law or of the Declaration of Trust or these Bylaws permits or
requires that the holders of any class or series of Shares shall vote as an
individual class or series, then a plurality of the quorum of Shares of that
class or series necessary for the transaction of business by that class or
series at a Shareholders' meeting shall decide that matter insofar as that class
or series is concerned.
10.4 Action by Written Consent. Any action taken by Shareholders may be
taken without a meeting if a majority of Shareholders entitled to vote on the
matter (or such larger proportion thereof as shall be required by any express
provision of law or the Declaration of Trust or these Bylaws) consent to the
action in writing and such 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.
10.5 Record Dates. For the purpose of determining the Shareholders who are
entitled to vote or act at any meeting or any adjournment thereof, or who are
entitled to receive payment of any dividend or of any other distribution, the
Trustees may from time to time fix a time, which shall be not more than 90 days
before the date of any meeting of Shareholders or the date for the payment of
any dividend or of any other distribution, as the record date for determining
the Shareholders having the right to notice of and to vote at such meeting and
any adjournment thereof or the right to receive such dividend or distribution,
and in such case only Shareholders of record on such record date shall have the
right notwithstanding any transfer of Shares on the books of the Trust after the
record date; or without fixing such record date the Trustees may for any of such
purposes close the register or transfer books for all or any part of such
period.
10.6 Advance Notice of Shareholder Nominees for Trustees and Other
Shareholder Proposals.
(a) As used in this Section 10.6, the term "annual meeting" refers
to any annual meeting of Shareholders as well as any special meeting held
in lieu of an annual meeting as described in the first two sentences of
Section 10.2 of these Bylaws, and the
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term "special meeting" refers to all meetings of Shareholders other than an
annual meeting or a special meeting in lieu of an annual meeting.
(b) The matters to be considered and brought before any annual or
special meeting of Shareholders shall be limited to only such matters,
including the nomination and election of Trustees, as shall be brought
properly before such meeting in compliance with the procedures set forth in
this Section 10.6. Only persons who are nominated in accordance with the
procedures set forth in this Section 10.6 shall be eligible for election as
Trustees, and no proposal to fix the number of Trustees shall be brought
before an annual or special meeting of Shareholders or otherwise transacted
unless in accordance with the procedures set forth in this Section 10.6,
except as may be otherwise provided in these Bylaws with respect to the
right of holders of preferred shares of beneficial interest, if any, of the
Trust to nominate and elect a specified number of Trustees in certain
circumstances.
(c) For any matter to be properly before any annual meeting, the
matter must be (i) specified in the notice of meeting given by or at the
direction of a majority of the Trustees and a majority of the Continuing
Trustees pursuant to Section 10.2 of these Bylaws, (ii) otherwise brought
before the meeting by or at the direction of a majority of the Continuing
Trustees (or any duly authorized committee thereof), or (iii) brought
before the meeting in the manner specified in this Section 10.6(c) by a
Shareholder of record entitled to vote at the meeting or by a Shareholder
(a "Beneficial Owner") that holds Shares entitled to vote at the meeting
through a nominee or "street name" holder of record and that can
demonstrate to the Trust such indirect ownership and such Beneficial
Owner's entitlement to vote such Shares, provided that the Shareholder was
the Shareholder of record or the Beneficial Owner held such Shares at the
time the notice provided for in this Section 10.6(c) is delivered to the
Secretary.
In addition to any other requirements under applicable law and the
Declaration of Trust and these Bylaws, persons nominated by Shareholders
for election as Trustees and any other proposals by Shareholders may be
properly brought before an annual meeting only pursuant to timely notice
(the "Shareholder Notice") in writing to the Secretary. To be timely, the
Shareholder Notice must be delivered to or mailed and received at the
principal executive offices of the Trust not less than forty-five (45) nor
more than sixty (60) days prior to the first anniversary date of the date
on which the Trust first mailed its proxy materials for the prior year's
annual meeting; provided, however, with respect to the annual meeting to be
held in the calendar year 2003, the Shareholder Notice must be so delivered
or mailed and so received on or before March 15, 2003; provided further,
however, if and only if the annual meeting is not scheduled to be held
within a period that commences thirty (30) days before the first
anniversary date of the annual meeting for the preceding year and ends
thirty (30) days after such anniversary date (an annual meeting date
outside such period being referred to herein as an "Other Annual Meeting
Date"), such Shareholder Notice must be given in the manner provided herein
by the later of the close of business on (i) the date forty-five (45) days
prior to such Other Annual Meeting
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Date or (ii) the tenth (10/th/) business day following the date such Other
Annual Meeting Date is first publicly announced or disclosed.
Any Shareholder desiring to nominate any person or persons (as the
case may be) for election as a Trustee or Trustees of the Trust shall
deliver, as part of such Shareholder Notice: (i) a statement in writing
setting forth (A) the name, age, date of birth, business address, residence
address and nationality of the person or persons to be nominated; (B) the
class or series and number of all Shares of the Trust owned of record or
beneficially by each such person or persons, as reported to such
Shareholder by such nominee(s); (C) any other information regarding each
such person required by paragraphs (a), (d), (e) and (f) of Item 401 of
Regulation S-K or paragraph (b) of Item 22 of Schedule 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), adopted
by the Securities and Exchange Commission (or the corresponding provisions
of any regulation or rule subsequently adopted by the Securities and
Exchange Commission or any successor agency applicable to the Trust); (D)
any other information regarding the person or persons to be nominated that
would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitation of proxies for election
of Trustees or directors pursuant to Section 14 of the Exchange Act and the
rules and regulations promulgated thereunder; and (E) whether such
Shareholder believes any nominee is or will be an "interested person" of
the Trust (as defined in the Investment Company Act of 1940, as amended)
and, if not an "interested person," information regarding each nominee that
will be sufficient for the Trust to make such determination; and (ii) the
written and signed consent of the person or persons to be nominated to be
named as nominees and to serve as Trustees if elected. In addition, the
Trustees may require any proposed nominee to furnish such other information
as they may reasonably require or deem necessary to determine the
eligibility of such proposed nominee to serve as a Trustee. Any Shareholder
Notice required by this Section 10.6(c) in respect of a proposal to fix the
number of Trustees shall also set forth a description of and the text of
the proposal, which description and text shall state a fixed number of
Trustees that otherwise complies with applicable law, these Bylaws and the
Declaration of Trust.
Without limiting the foregoing, any Shareholder who gives a
Shareholder Notice of any matter proposed to be brought before a
Shareholder meeting (whether or not involving nominees for Trustees) shall
deliver, as part of such Shareholder Notice: (i) the description of and
text of the proposal to be presented; (ii) a brief written statement of the
reasons why such Shareholder favors the proposal; (iii) such Shareholder's
name and address as they appear on the Trust's books; (iv) any other
information relating to the Shareholder that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with the solicitation of proxies with respect to the matter(s)
proposed pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder; (v) the class or series and number of
all Shares of the Trust owned beneficially and of record by such
Shareholder; (vi) any material interest of such Shareholder in the matter
proposed (other than as a Shareholder); (vii) a representation that the
Shareholder intends to appear in person or by proxy at the Shareholder
meeting to act on the matter(s) proposed; (viii) if the proposal involves
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nominee(s) for Trustees, a description of all arrangements or
understandings between the Shareholder and each proposed nominee and any
other person or persons (including their names) pursuant to which the
nomination(s) are to be made by the Shareholder; and (ix) in the case of a
Beneficial Owner, evidence establishing such Beneficial Owner's indirect
ownership of, and entitlement to vote, Shares at the meeting of
Shareholders. As used in this Section 10.6, Shares "beneficially owned"
shall mean all Shares which such person is deemed to beneficially own
pursuant to Rules 13d-3 and 13d-5 under the Exchange Act (or the
corresponding provisions of any regulation or rule subsequently adopted by
the Securities and Exchange Commission or any successor agency applicable
to the Trusts).
(d) For any matter to be properly before any special meeting, the
matter must be specified in the notice of meeting given by or at the
direction of a majority of the Trustees and a majority of the Continuing
Trustees pursuant to Section 10.2 of these Bylaws. In the event the Trust
calls a special meeting for the purpose of electing one or more Trustees,
any Shareholder may nominate a person or persons (as the case may be) for
election to such position(s) as specified in the Trust's notice of meeting
if and only if the Shareholder provides a notice containing the information
required in the Shareholder Notice to the Secretary required with respect
to annual meetings by Section 10.6(c) hereof, and such notice is delivered
to or mailed and received at the principal executive office of the Trust
not later than the close of business on the tenth (10/th/) day following
the day on which the date of the special meeting and of the nominees
proposed by the Trustees to be elected at such meeting are publicly
announced or disclosed.
(e) For purposes of this Section 10.6, a matter shall be deemed to
have been "publicly announced or disclosed" if such matter is disclosed in
a press release reported by the Dow Xxxxx News Service, Associated Press or
comparable national news service, in a document publicly filed by the Trust
with the Securities and Exchange Commission, or in a Web site accessible to
the public maintained by the Trust or by its investment adviser or an
affiliate of such investment adviser with respect to the Trust.
(f) In no event shall an adjournment or postponement (or a public
announcement thereof) of a meeting of Shareholders commence a new time
period (or extend any time period) for the giving of notice as provided in
this Section 10.6.
(g) The person presiding at any meeting of Shareholders, in
addition to making any other determinations that may be appropriate to the
conduct of the meeting, shall have the power and duty to (i) determine
whether a nomination or proposal of other matters to be brought before a
meeting and notice thereof have been duly made and given in the manner
provided in this Section 10.6 and elsewhere in these Bylaws and the
Declaration of Trust and (ii) if not so made or given, to direct and
declare at the meeting that such nomination and/or such other matters shall
be disregarded and shall not be considered. Any determination by the person
presiding shall be binding on all parties absent manifest error.
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(h) Notwithstanding anything to the contrary in this Section 10.6
or otherwise in these Bylaws, unless required by federal law, no matter
shall be considered at or brought before any annual or special meeting
unless such matter has been approved for these purposes by a majority of
the Continuing Trustees and, in particular, no Beneficial Owner shall have
any rights as a Shareholder except as may be required by federal law.
Furthermore, nothing in this Section 10.6 shall be construed as creating
any implication or presumption as to the requirements of federal law.
ARTICLE 11
Amendment to the Bylaws
11.1 General. Except to the extent that the Declaration of Trust or
applicable law requires a vote or consent of Shareholders or a higher vote or
consent by the Trustees and/or the Continuing Trustees, these Bylaws may be
amended, changed, altered or repealed, in whole or part, only by resolution of a
majority of the Trustees and a majority of the Continuing Trustees then in
office at any meeting of the Trustees, or by one or more writings signed by such
Trustees and Continuing Trustees.
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