AMENDED AND RESTATED BYLAWS
OF
XXXXXX MASTER INTERMEDIATE INCOME TRUST AND
XXXXXX PREMIER INCOME TRUST
(Dated as of September 18,
2020)
ARTICLE 1
Agreement and Declaration of Trust and
Principal Office
1.1 Agreement and Declaration of Trust. These Bylaws shall
be subject to the Agreement and Declaration of Trust, as from
time to time in effect (the Declaration of Trust ), of the
Massachusetts business trust established by the Declaration of
Trust (the Trust ). Capitalized terms used but not defined in
these Bylaws have the meanings given to them in the
Declaration of Trust.
1.2 Principal Office of the Trust. The principal office
of the Trust shall be located in Boston, Massachusetts. The
Trust may have other principal offices within or without the
Commonwealth of Massachusetts as the Trustees may from time
to time determine.
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.
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 Chair of the Trustees, the
President, the Executive Vice President or the Treasurer or by
two or more Trustees, sufficient notice thereof being given to
each Trustee by the Clerk or an Assistant Clerk or by the
officer or the Trustees calling the meeting.
2.3 Notice of Special Meetings. It shall be sufficient
notice to a Trustee of a special meeting: (a) to send notice
(i) by mail at least forty eight hours before the meeting, (ii)
by courier at least forty eight hours before the meeting, (iii)
by electronic mail (e mail), facsimile or other electronic
means at least twenty four hours before the meeting, in each
case, addressed to the Trustee at his or her usual or last
known business or residence address (or e mail address,
facsimile number or other appropriate address); or (b) to give
notice to him or her in person or by telephone at least twenty
four hours before the meeting. Notice of a special 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 before or at its commencement the lack of
notice to him or her. Any written waiver of notice may be
provided and delivered to the Trust by mail, courier, e mail,
facsimile or other electronic means. Neither notice of a
meeting nor a waiver of a notice need specify the purposes of
the meeting. All notices shall be deemed to be given when sent.
2.4 Quorum. At any meeting of the Trustees a majority of
the Trustees then in office shall constitute a quorum. Once a
quorum has been validly established for a meeting, it cannot
be broken by Trustees withdrawing from the meeting. 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.
2.5 Telephone Meeting; Action Without a Meeting. Except as
otherwise provided in the Declaration of Trust and these
Bylaws, any action to be taken by the Trustees may be taken by
a majority of the Trustees present at the meeting of the
Trustees (a quorum being present), including any meeting held
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. Any action to be taken by the Trustees may also be
taken without a meeting if one or more written consents
thereto are signed by a majority of the Trustees. Any written
consent may be given by mail, courier, e mail, facsimile or
other electronic means. Copies of such written consents shall
be filed with the minutes of the proceedings of the Trustees.
Such consents shall be treated for all purposes as a vote
taken at a meeting of the Trustees. If in accordance with the
provisions of the Declaration of Trust and these Bylaws any
action is taken by the Trustees by written consents of less
than all of the Trustees, then prompt notice of any such
action shall be furnished to each Trustee who did not execute
such written consent, provided that the effectiveness of such
action shall not be impaired by any delay or failure to
furnish such notice.
ARTICLE 3
Officers
3.1 Enumeration; Qualification. The officers of the Trust
shall be a President, a Treasurer, a Clerk and such other
officers (including Vice President, which shall include the
office of Executive Vice President), 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. In addition, there shall be
a Chair of the Trustees, who will be considered an officer of
the Trustees and not of the Trust. The Chair of the Trustees
shall be a Trustee and may but need not be a Shareholder; and
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 Chair of the Trustees, the President, the
Treasurer and the Clerk shall be elected by the Trustees upon
the occurrence of any vacancy in any such office. Other
officers, if any, may be elected or appointed by the Trustees
at any time. Vacancies in any such other office may be filled
at any time.
3.3 Tenure. The Chair of the Trustees, the President, the
Treasurer and the Clerk shall hold office in each case until
he or she dies, resigns, is removed or becomes disqualified.
Each other officer shall hold office, and each agent shall
retain authority, at the pleasure of the Trustees.
Notwithstanding the foregoing, the tenure of any officer of
the Trust who is an employee or officer of the Trusts
investment adviser or its affiliates shall automatically
terminate contemporaneously with the termination of such
persons employment with, or service as officer of, the Trusts
investment adviser and all of its affiliates.
3.4 Powers. Subject to the other provisions of these
Bylaws, each officer shall have, in addition to the duties and
powers set forth in these Bylaws and in the Declaration of
Trust, 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 Chair. Unless the Trustees otherwise provide, the Chair
of the Trustees shall preside at all meetings of the Trustees.
The Chair of the Trustees shall have such other duties and
powers relating to the operations of the Trustees as the
Trustees may from time to time designate, but shall have no
individual authority to act for the Trust as an officer of the
Trust. The Trustees, including a majority of the Trustees who
are not interested persons of the Trust, as that term is
defined in the 1940 Act, may appoint one or more persons to
perform the duties of the Chair of the Trustees in the event of
his or her absence at any meeting or in the event of his or her
disability. The Chair of the Trustees shall also have the power
to appoint one or more persons to perform the duties of the
Chair of the Trustees in the event of his or her absence at any
meeting.
3.6 President. Unless the Trustees otherwise provide by
vote or otherwise, the President shall be the principal
executive officer of the Trust.
3.7 Treasurer. Unless the Trustees otherwise provide by
vote or otherwise, the Treasurer shall be the principal
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, subadviser or manager, 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
principal executive officer of the Trust.
3.8 Clerk. The Clerk 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 Clerk from any
meeting of the Shareholders or Trustees (or a Committee
thereof), an Assistant Clerk, or if there be none or if he or
she is absent, a temporary Clerk chosen at such meeting by the
chair of such meeting, shall record the proceedings thereof in
the aforesaid books.
3.9 Resignations and Removals. Any Trustee or officer may
resign at any time by written instrument signed by him or her
and delivered to the Chair of the Trustees, the President or
the Clerk 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 elected or appointed by them with or without cause.
Except to the extent expressly provided in a written agreement
with the Trust, no Trustee or 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 votes or charter
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 (which quorum once validly established
cannot be broken by Trustees withdrawing from the meeting), and
any action of such a Committee may be taken by a vote of a
majority of the members of such Committee (a) present at a
meeting of such Committee (a quorum being present), including
any meeting held 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 (participation by such means shall constitute presence in
person at a meeting), or (b) evidenced by one or more written
consents, including written consents submitted by mail,
courier, e mail, facsimile or other electronic means. Copies of
such written consents shall be filed with the minutes of the
proceedings of such Committee. Such consents shall be treated
for all purposes as a vote taken at a meeting of such
Committee. If in accordance with the provisions of the
Declaration of Trust and these Bylaws any action is taken by
written consents of less than all of the Committees members,
then prompt notice of any such action shall be furnished to
each member who did not execute such written consent, provided
that the effectiveness of such action shall not be impaired by
any delay or failure to furnish such notice. In the absence of
any member of any such Committee, the members thereof present
at any properly called meeting, whether or not they constitute
a quorum, may appoint a member of the Trustees to act at that
meeting only in the place of any absent member.
Except as specifically provided in the votes constituting
a Committee of the Trustees and providing for the conduct of
its meetings, Section 2.3 of these Bylaws relating to special
meetings shall govern the notice requirements for Committee
meetings.
4.2 Authority of Trustees. The Trustees have the power
to rescind any action of any Committee, but no such
rescission shall have retroactive effect unless determined
so by the Trustees.
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.
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 subsequent fiscal years shall end
on such date in subsequent years.
ARTICLE 7
Seal
7.1 General. The seal of the Trust, if any, shall 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 but, unless otherwise required by the
Trustees, the seal need not 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, contracts, notes and other
obligations made, accepted or endorsed by the Trust shall be
signed by the President, a Vice President or the Treasurer, and
need not bear the seal of the Trust.
ARTICLE 9
Issuance of Shares and Share
Certificates
9.1 Sale of Shares. Except as otherwise determined by the
Trustees, the Trust will issue and sell for cash or securities
from time to time full and fractional Shares, such Shares to
be issued and sold at a price of not less than the par value
per share, if any, and not less than the net asset value per
share as from time to time determined in accordance with
procedures adopted by the Trustees and, in the case of
fractional Shares, at a proportionate reduction in such price.
In the case of Shares sold for securities, such securities
shall be valued in accordance with procedures approved by the
Trustees for determining the value of the assets of the Trust.
The officers of the Trust are severally authorized to take all
such actions as may be necessary or desirable to carry out
this Section 9.1.
9.2 Share Certificates. 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 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.
The Trustees may at any time authorize the issuance of
Share certificates. In that event, 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 certificate shall be signed by
the President or a Vice President and by the Treasurer or an
Assistant Treasurer.
Such signatures may be facsimile if the certificate is signed
by a transfer agent or by a registrar. 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 issue.
9.3 Loss of Certificates. The transfer agent of the Trust,
with the approval of any two officers of the Trust, is
authorized to issue and countersign replacement certificates
for the Shares of the Trust which have been lost, stolen or
destroyed upon (i) receipt of an affidavit or affidavits of
loss or non receipt and of an indemnity agreement executed by
the registered holder or his or her legal representative and
supported by an open penalty surety bond, said agreement and
said bond in all cases to be in form and content satisfactory
to and approved by the President or the Treasurer, or (ii)
receipt of such other documents as may be approved by the
Trustees.
9.4 Issuance of New Certificate 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.
9.5 Discontinuance of Issuance of Certificates. The
Trustees may at any time discontinue the issuance of Share
certificates and may, by written notice to each Shareholder
whom the Trust believes to hold a Share certificate, 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
10.1 Annual Meeting. The annual meeting of the Shareholders
of the Trust shall be held on the last Friday in April in each
year or on such other day as may be fixed by the Trustees. The
meeting shall be held at such time as the Trustees may fix in
the notice of the meeting or otherwise. Purposes for which an
annual meeting is to be held, additional to those prescribed by
law or these Bylaws, may be specified by the Trustees. Any
previously scheduled annual
meeting of Shareholders may be postponed or cancelled by the
Trustees upon public notice given prior to the time previously
scheduled for such meeting, in accordance with these Bylaws.
10.2 Adjournment. Any meeting of Shareholders may, by
action of the chair of the meeting, be adjourned from time to
time without notice other than announcement at the meeting at
which the adjournment is taken with respect to one or more
matters to be considered at such meeting to a designated date
which may be more than 120 days after the date initially set
for the meeting, time and place, whether or not a quorum is
present with respect to such matter. Upon motion of the chair
of the meeting, the question of adjournment may be (but is not
required by these Bylaws to be) submitted to a vote of the
Shareholders, and in that case, any adjournment with respect
to one or more matters must be approved by the vote of holders
of a majority of the Shares present and entitled to vote with
respect to the matter or matters adjourned and, if approved,
such adjournment shall take place without further notice other
than announcement at the meeting at which the adjournment is
taken. Unless a proxy is otherwise limited in this regard, any
Shares present and entitled to vote at a meeting, including
any Shares that are represented by broker non votes, may, at
the discretion of the proxies named therein, be voted in favor
of such an adjournment. Any proposal for which sufficient
favorable votes have been received may (but need not) be acted
upon and considered final and effective regardless of whether
the meeting is adjourned to permit additional solicitation
with respect to any other proposal that is properly before the
meeting.
10.3 Conduct of Meetings. Meetings of the Shareholders
shall be presided over by the Chair of the Trustees, or, if the
Chair is not present at the meeting, then by a Trustee or
officer designated by the Chair or authorized by the Trustees,
or if there is no such person present at the meeting, then by
any officer of the Trust present at the meeting, and such
person shall be deemed for all purposes the chair of the
meeting. The chair of the meeting shall have the right and
authority to prescribe such rules, regulations and procedures
and to do all such acts as, in the judgment of such chair, are
necessary, appropriate or convenient for the proper conduct of
the meeting, including, without limitation, establishing: an
agenda or order of business for the meeting; rules and
procedures for maintaining order at the meeting and the safety
of those present; conditions on the recording of the meeting;
limitations on participation in such meeting to Shareholders of
record of the Trust and their duly authorized and constituted
proxies, and such other persons as the chair shall permit;
restrictions on entry to the meeting after the time fixed for
the commencement thereof; limitations on the time allotted to
questions or comments by participants; conditions for the
removal of any Shareholder or any other person who refuses to
comply with meeting procedures, rules or guidelines as set
forth by the chair of the meeting; and regulations for the
opening and closing of the polls for balloting on matters which
are to be voted on by ballot. With the exception of proposals
submitted in accordance with, and otherwise meeting the
requirements of, Rule 14a 8 under the Securities Exchange Act
of 1934, as amended, or any successor provisions, only matters
proposed by the Trustees may be included in the Trusts proxy
materials. At all meetings of Shareholders, unless voting is
conducted by inspectors, all questions relating to the
qualification of voters and the validity of proxies and the
acceptance or rejection of votes shall be decided by the chair
of the meeting. The chair of the
meeting shall determine, in the chairs sole discretion,
whether to appoint an inspector for any meeting. Unless
otherwise determined by the chair of the meeting, meetings
shall not be required to be held in accordance with any rules
of parliamentary procedure.
10.4 Record Dates. For the purpose of determining the
Shareholders of any class or series of Shares of the Trust 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 (or their
designees) 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 more than 60 days before the date of payment
of any dividend or of any other distribution, as the record
date for determining the Shareholders of such class or series
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 such 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 such purposes close the register or transfer books for all
or part of such period.
10.5 Communications with Shareholders. Any notices,
reports, statements or other communications with Shareholders
of any kind required under the Declaration of Trust, these
Bylaws or applicable law may be sent, delivered or made
available in any reasonable manner as may be determined by the
Trustees or officers if not otherwise prohibited by applicable
law, including, without limitation, by mail, courier, e mail,
facsimile or other electronic means or by posting on a website;
and such communications may be sent, delivered or otherwise
made available to Shareholders in accordance with householding
or other similar rules under which a single copy of such notice
or report may be sent to Shareholders who reside at the same
address. No communication need be given to any Shareholder who
shall have failed to inform the Trust of the Shareholders
current address and the Trustees may from time to time adopt,
or may authorize the officers or agents of the Trust to adopt,
procedures or policies with respect to communications to
Shareholders that are returned to the Trust or its agents as
undeliverable and similar matters. Any Shareholder may waive
receipt of any notice or other communication.
10.6 Proxies. The placing of a Shareholders name on a proxy
pursuant to telephone or electronically transmitted
instructions (including instructions submitted via the
Internet) 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.
ARTICLE 11
11.1 Inspection of Books. The Trustees shall from time to
time determine whether and to what extent, at what times and
places and under what conditions and regulations any of the
accounts and books of the Trust shall be open to the
inspection of the Shareholders, and no
Shareholder shall have any right to inspect any account or book
or document of the Trust except as conferred by law or
otherwise by the Trustees or by these Bylaws.
ARTICLE 12
Advance Notice Provisions
12.1 Advance Notice of Shareholder Nominations of Trustees
and Other Shareholder Proposals. Except as otherwise provided
in Article 15 of these Bylaws, the matters to be considered
and brought before any 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 12.1.
Only persons who are nominated in accordance with the
following procedures, other than persons nominated by the Board
of Trustees, shall be eligible for election as Trustees, and no
proposal to fix the number of Trustees shall be considered at
or brought before a meeting of Shareholders or otherwise
transacted unless notice is provided in accordance with the
following procedures.
(a) Shareholder Nominations for Trustee and Other
Shareholder Proposals for Meetings of Shareholders.
(1) For any matter to be properly brought before
a meeting of Shareholders, the matter must be (i)
specified in the notice of meeting given by or at the
direction of the Trustees pursuant to Article V,
Section 2 of the Declaration of Trust, (ii) brought
before the meeting by or at the direction of the
Trustees (or any duly authorized committee thereof)
or the Chair of the Trustees or (iii) brought before
the meeting by any Shareholder of the Trust who was a
Shareholder of record (1) at the time the notice
provided for in this Section 12.1 is delivered to the
Clerk of the Trust, (2) at the record date for the
meeting and (3) at the time of the meeting, who is
entitled to vote at the meeting on the nomination or
proposal for which the Shareholder has provided
notice prior to such meeting in accordance with this
Article 12, and who complies with the notice
procedures set forth in subparagraph (2) of this
paragraph (a) of this Section 12.1 and the other
requirements of this Article 12. If the Shareholder
ceases to be a holder of record of Shares, or if the
beneficial owner ceases to be the beneficial owner of
Shares to the extent the record owner and beneficial
owner are not the same person, entitled to vote at
such meeting on the nomination or proposal for which
the Shareholder has provided notice prior to such
meeting in accordance with this Article 12, the
Shareholders proposal shall automatically be
withdrawn from consideration at the meeting.
(2) For such matter to be properly brought
before a meeting by a Shareholder pursuant to clause
(iii) of subparagraph (1) of paragraph (a) of this
Section 12.1, the Shareholder must have given timely
notice thereof in writing to
the Clerk of the Trust in accordance with paragraph
(b) of this Section 12.1. The Shareholders notice
shall contain, at a minimum, the required information
set forth in paragraph (c) of this Section 12.1.
(b) Timely Notice.
(1) Annual Meeting. To be timely, a Shareholders
notice required by subparagraph (2) of paragraph (a)
of this Section 12.1 in respect of an annual meeting
or a special meeting in lieu of an annual meeting
(each, an Annual Meeting ) shall be delivered to
the Clerk at the principal executive offices of the
Trust not less than sixty (60) nor more than ninety
(90) days prior to the anniversary date of the
immediately preceding Annual Meeting; provided,
however, if and only if the Annual Meeting is not
scheduled to be held on a date that is within thirty
(30) days before or after such anniversary date,
notice by the Shareholder in order to be timely must
be so received no later than the close of business
on the tenth (10th) day following the earlier of the
date on which notice of the date of the annual
meeting was first mailed to Shareholders and the
date on which the date of the Annual Meeting was
publicly announced or disclosed.
(2) Special Meeting (Other than Special Meeting
in Lieu of Annual
Meeting). To be timely, a Shareholders notice
required by subparagraph (2) of paragraph (a) of this
Section 12.1 in respect of a special meeting shall be
delivered to the Clerk at the principal executive
offices of the Trust not later than the close of
business on the tenth (10th) day following the
earlier of the date on which notice of the date of
the special meeting was first mailed to Shareholders
and the date on which the date of the special meeting
was publicly announced or disclosed.
(3) General. In no event shall one or more
adjournments or postponements (or public
announcements thereof) of a meeting of Shareholders
commence a new time period (or extend any time
period) for the giving of a Shareholders notice as
described in this paragraph (b) of this Section
12.1.
(4) Publicly Announced or Disclosed. For purposes
of this Section 12.1, 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
Exchange Commission, or on a website accessible to
the public maintained by the Trust or its investment
adviser or an affiliate of such investment adviser
with respect to the Trust.
(c) Content of Shareholders Notice.
(1) Shareholder Nominations and Proposals to Fix
the Number of
Trustees. 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 set forth
in the Shareholders notice required by this Section
12.1 as to each person, if any, whom the Shareholder
proposes to nominate for election or re election as a
Trustee (i) the persons name, age, date of birth,
business address, residence address and nationality;
(ii) any other information regarding the person
required by each of paragraphs (a), (d), (e) and (f)
of Item 401 of Regulation S K and paragraph (b) of
Item 22 of Rule 14a 101 (Schedule 14A) under the
Exchange Act; (iii) any other information regarding
the person 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; (iv) whether the Shareholder
believes the person is or will be an interested
person of the Trust (as defined in the 0000 Xxx)
and, if not an interested person, information
regarding the person that will be sufficient for the
Trust to make such determination; (v) the written
consent of the person to being named as a nominee and
to serve as a Trustee if elected; and (vi) the class
or series and number of all Shares owned beneficially
and of record by the person. Any Shareholders notice
required by this Section 12.1 in respect of a
proposal to fix the number of Trustees shall also set
forth a description and the text of the proposal,
which description and text shall state a fixed number
of Trustees that otherwise complies with the Bylaws
and the Declaration of Trust, and shall be
accompanied by a written statement as to why the
Shareholder believes that the proposal to fix the
number of Trustees at the specified number is in the
best interests of Shareholders.
(2) Other Proposals. Any Shareholder desiring to
propose any matter at a Shareholders meeting, other
than the nomination of one or more persons for the
election of Trustee or Trustees or a proposal to fix
the number of Trustees (which shall be subject to the
provisions of subparagraph (1) of paragraph (c) of
this Section 12.1) shall set forth in the
Shareholders notice required by this Section
12.1 (i) the exact text of the proposal to be
presented; (ii) a brief written statement of the
reasons why such Shareholder favors the proposal; and
(iii) a brief written statement why the proposal is
in the best interests of Shareholders.
(3) General Requirements. Without limiting the
foregoing, any Shareholder who gives a Shareholders
notice of any matter proposed to be brought before a
Shareholder meeting (whether or not involving
nominees for Trustees) as required by this Section
12.1 shall set forth in such Shareholders notice,
(i) the name and address of the Shareholder, as it
appears on the Trusts books; (ii) the class or
series and number of all Shares owned beneficially
and of record by the Shareholder (or by each of the
record owner and beneficial owner if not the same
person, identifying the name and address of each);
(iii) any material
interest of such Shareholder in the matter proposed
(other than as a Shareholder);
(iv) if the proposal involves 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; (v)
a representation that the Shareholder intends to
appear in person or by proxy at the meeting to act on
the matter(s) proposed; (vi) 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 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; (vii)
to the extent known by the Shareholder giving notice,
the name and address of any other Shareholder
supporting the proposed nominee or other proposal;
and (viii) in the case of a beneficial owner,
evidence establishing such beneficial owners indirect
ownership of, and entitlement to vote, Shares at the
meeting of Shareholders. As used in this Section
12.1, 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. The Shareholder shall also provide such
other information as the Board of Trustees may
reasonably request in order to assess whether the
matter is a proper matter for Shareholder
consideration and determine a position with respect
to such proposal.
(4) Beneficial Owner. If the record owner and the
beneficial owner of the Shares are not the same
person, the Shareholder shall also provide the
information called for by clauses (iii), (iv), (v),
(vi) and (vii) of subparagraph (3) of paragraph
(c) of this Section 12.1 in respect of the beneficial
owner of such Shares.
(d) Attendance at Meeting. Notwithstanding the
foregoing provisions of this Article 12, unless otherwise
required by the Declaration or Trust or applicable law,
if the Shareholder who has provided the notice prescribed
in paragraph (b) of this Section 12.1 does not appear at
the meeting to present in person the nominations or other
proposals that were the subject of such notice, any such
nomination or nominations shall not be acted on and any
proposal or proposals shall not be transacted.
(e) Authority to Determine Compliance with Procedures.
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 was made in compliance with the procedures set
forth in this Article 12 and elsewhere in the Bylaws and
in the Declaration of Trust and (ii) if any nomination or
proposal is not so in compliance to declare that such
nomination or proposal shall be disregarded.
ARTICLE 13
Amendments to the Bylaws
13.1 General. These Bylaws may be amended or repealed,
in whole or in part, by a majority of the Trustees then in
office. These Bylaws may not be amended by Shareholders.
ARTICLE 14
Claims
14.1 Shareholder Claims. As used herein, a direct
Shareholder claim shall refer to (i) a claim based upon
alleged violations of a Shareholders individual rights
independent of any harm to the Trust, including a Shareholders
voting rights under Article 10, rights to receive a dividend
payment as may be declared from time to time, rights to inspect
books and records, or other similar rights personal to the
Shareholder and independent of any harm to the Trust; and (ii)
a claim for which a direct shareholder action is expressly
provided under the U.S. federal securities laws. Any claim
asserted by a Shareholder that is not a direct Shareholder
claim, including without limitation any claims purporting to be
brought on behalf of the Trust or involving any alleged harm to
the Trust, shall be considered a derivative claim as used
herein.
ARTICLE 15
Control Share Acquisitions
15.1 Certain Definitions. As used in this Article 15,
the following terms have the meanings specified below:
(a) Associate means, with respect to any Person, any
person who directly or indirectly controls or is
controlled by, or is under common control with, such
Person, control, as used in this definition meaning the
possession, direct or indirect, of the power to direct or
cause the direction of the management or policies of a
Person, whether through the ownership of voting
securities, by contract or otherwise; any corporation or
organization of which such Person is an officer, director
or partner or in which such Person performs a similar
function; any direct or indirect Beneficial Owner of ten
percent (10%) or more of any class of equity securities
of such Person; any trust or estate in which such Person
has a beneficial interest not represented by transferable
shares or as to which such Person serves as trustee or in
a similar fiduciary capacity; any relative or spouse of
such Person, or any relative of such spouse, any one of
whom has the same residence as such Person or who is a
Trustee or officer of the Trust or any of its affiliates;
any person who is acting or intends to act jointly or in
concert with such Person in a Control Share Acquisition;
and any affiliated person of such Person, as such term
is defined in Section 2(a)(3) of the 0000 Xxx.
(b) Beneficial Ownership or Beneficially Owned
means the sole or shared power to dispose or direct the
disposition of Shares or the sole or shared power to vote
or
to direct the voting of Shares, whether such power is
direct or indirect or through any contract, arrangement,
understanding, relationship or otherwise. A Person shall
not be deemed to be a Beneficial Owner of Shares as to
which such Person may exercise voting power solely by
virtue of a revocable proxy conferring the right to vote.
A member of a national securities exchange shall not be
deemed to be a Beneficial Owner of Shares held directly or
indirectly by it on behalf of another Person solely
because such member is the record holder of such
securities and, pursuant to the rules of such exchange,
may direct the vote of such Shares, without instruction,
on other than contested matters or matters that may affect
substantially the rights or privileges of the holders of
the Shares to be voted but is otherwise precluded by the
rules of such exchange from voting without instructions.
(c)(1) Control Share Acquisition means the
acquisition by any Person of Beneficial Ownership of
Shares which, but for the provisions of this Article 15,
would have voting rights and which, when added to all
other Shares Beneficially Owned by such Person (including
Shares otherwise included in the categories enumerated in
Section 15.1(c)(2)(i) through (vi) below), would entitle
such Person, upon acquisition of such Shares, to vote or
direct the voting of Shares having voting power in the
election of Trustees within any of the following ranges of
such voting power:
(i) One tenth or more, but less than one fifth of all
voting power;
(ii) One fifth or more, but less than one third of all
voting power;
(ii) One third or more, but less than a majority of
all voting power; or
(iv) A majority or more of all voting power.
Subject to Section 15.1(c)(2) below, with respect to
any Control Share Acquisition by a Person, the following
Shares shall be deemed to have been acquired in the same
Control Share Acquisition for purposes of this Article 15:
(a) all Shares the Beneficial Ownership of which is
acquired by such Person within ninety (90) days before the
date on which such Person makes an acquisition of
Beneficial Ownership of Shares that results in such
Control Share Acquisition and all Shares the Beneficial
Ownership of which was acquired by such Person pursuant to
a plan to make a Control Share Acquisition; and (b) all
Shares the Beneficial Ownership of which is acquired by
such Person within the range of voting power (specified in
this Section 15.1(c)(1)) to which the Control Share
Acquisition is subject at any time after the date on which
such Person makes an acquisition of Beneficial Ownership
of Shares that results in such Control Share Acquisition
but prior to the authorization by Shareholders of such
Persons voting rights with respect to such Control Share
Acquisition in accordance with Section 15.4 of this
Article 15.
(2) A Control Share Acquisition shall not include
the acquisition of Beneficial Ownership of Shares
acquired:
(i) before September 18, 2020, provided, for the
avoidance of doubt, that Shares
acquired before September 18, 2020 shall, pursuant to
Section 15.1(c)(1) above, be added to Shares the
Beneficial Ownership of which is acquired after
September 18, 2020 for purposes of determining
whether a Control Share Acquisition has taken place
or will take place following September 18, 2020;
(ii) pursuant to a contract to acquire Shares existing
before September 18, 2020;
(iii) by will or pursuant to the laws of descent and
distribution;
(iv) pursuant to the satisfaction of a pledge or other
security interest created in good faith and not for
the purpose of circumventing the provisions of this
Article 15;
(v) pursuant to a tender offer, merger or
consolidation, but only if such tender offer, merger
or consolidation is pursuant to an agreement to
which the Trust is a party and has been approved by
such proportion of the Board of Trustees and/or
Shareholders of the Trust as is required pursuant to
the Declaration of Trust or Bylaws; or
(vi) through any other transaction that is
declared to be exempt from the provisions of
this Article 15 by vote of a majority of the
Board of Trustees, whether such vote is taken
before, at the time of or after such
transaction.
(3) The acquisition of Beneficial Ownership of Shares
does not constitute a Control Share Acquisition if the
acquisition is made by a Person whose voting rights with
respect to Shares were previously authorized by the
Shareholders of the Trust in compliance with this Article
15, unless such acquisition, when added to all other
Shares Beneficially Owned by the Person making such
acquisition would entitle such acquiring Person to vote or
direct the voting of Shares having voting power in the
election of Trustees in excess of the range of voting
power within which all Shares Beneficially Owned by such
Person whose voting rights were previously so authorized
had voting power immediately following such authorization.
(d) Control Share Acquisition Statement means a
statement satisfying the requirements of Section 15.2
below.
(e) Interested Shares means Shares that are
Beneficially Owned by:
(i) any Person who has acquired or proposes to
acquire Beneficial Ownership of Shares in a Control
Share Acquisition;
(ii) any officer of the Trust; or
(iii) any employee of the Trust or the Trusts
investment adviser who is also a Trustee of the
Trust.
For the avoidance of doubt, any Person whose voting
rights in connection with a Control Share Acquisition are
subject to a Shareholder vote at a meeting of Shareholders
pursuant to Section 15.3 shall be deemed to hold
Interested Shares with respect to any
Shareholder vote at such meeting on voting rights in
connection with a Control Share Acquisition by any other
Person.
(f) Person means any individual, corporation,
partnership, unincorporated association or other
entity, and includes any Associate of such Person.
15.2 Delivery of Control Share Acquisition Statement. Any
Person who has made a Control Share Acquisition or has made a
bona fide written offer to make a Control Share Acquisition
may deliver a Control Share Acquisition Statement to the
Clerk of the Trust at the principal executive offices of the
Trust personally or by certified mail. The Control Share
Acquisition Statement shall set forth all of the following:
(i) the identity/identities of such Person who
intends/intend to acquire or has/have acquired
Beneficial Ownership of Shares;
(ii) a statement that such Control Share Acquisition
Statement is being made and delivered pursuant to
the provisions of this Article 15;
(iii) the number and class or series of Shares
Beneficially Owned by such Person prior to the
Control Share Acquisition;
(iv) the number and class or series of Shares acquired
or proposed to be acquired by such Person pursuant
to the Control Share Acquisition and the range of
voting power to which the Control Share Acquisition
is or, if consummated, would be subject pursuant to
the provisions of Section 15.1(c)(1) above;
(v) a description of the terms and conditions of the
proposed or completed Control Share Acquisition,
including but not limited to the prices paid by such
Person in the Control Share Acquisition and the dates
upon which the Shares were acquired or are planned to
be acquired; and
(vi) if the Control Share Acquisition has not been
completed, representations by such Person that such
Control Share Acquisition, if consummated, will not
be contrary to law, and that such Person has the
financial capacity to consummate the proposed Control
Share Acquisition, together with a statement in
reasonable detail of the material facts upon which
such representation is based.
15.3 Meeting of Shareholders. (a) If the Person delivering
a Control Share Acquisition Statement so demands in writing
contemporaneously with the delivery of such Control Share
Acquisition Statement, consideration of the voting rights to be
authorized for the Shares acquired or proposed to be acquired
in the Control Share Acquisition shall be presented at the next
meeting of the Trusts Shareholders notice of which has not been
given prior to the receipt by the Trust of the Control Share
Acquisition Statement, whether such meeting is an annual
meeting, special meeting in lieu of an annual meeting or
special meeting (and provided that the Board of Trustees shall
have no obligation to call such a meeting for the sole purpose
of considering the voting rights in connection with a Control
Share Acquisition). A demand delivered pursuant to the
preceding sentence shall not be considered a notice of
Shareholder proposal for purposes of
Article 12, Section 12.1 of these Bylaws and shall not be
subject to the associated informational requirements or
deadlines. Such demand shall not be effective unless
accompanied by an undertaking by the Person making such demand
to pay, if requested by the Trust, the reasonable expenses
incurred by the Trust arising from or relating to the
consideration of the voting rights of such Person at a
Shareholder meeting, but not including the expenses of the
Trust incurred in opposing a vote to authorize voting rights
for the Shares acquired or proposed to be acquired in the
Control Share Acquisition. The Trust shall have no obligation
to, but may, include the consideration of voting rights for the
Shares acquired or proposed to be acquired in a Control Share
Acquisition in its own proxy statement for any Shareholder
meeting. The Trustees may require the acquiring Person to give
bond, with sufficient surety, or may require such Person to
deposit cash in escrow to reasonably assure the Trust that this
undertaking will be satisfied. For the avoidance of doubt, a
demand delivered pursuant to this Section shall be limited to
the consideration of the voting rights to be authorized for
only those Shares acquired within the range of voting power to
which the Control Share Acquisition is subject pursuant to the
provisions of Section 15.1(c)(1) above, and any Shares acquired
in excess of such range shall constitute a separate Control
Share Acquisition with respect to the next range of voting
power and, therefore, shall be treated separately for purposes
of applying the provisions of this Article 15.
(b) The notice to the Shareholders of the Trust of any
annual meeting, special meeting in lieu of an annual meeting
or special meeting at which the voting rights to be accorded
Shares acquired or proposed to be acquired in a Control Share
Acquisition are to be considered shall be directed to all
Shareholders of record of the Trust entitled to vote on such
matter as of the record date set for such meeting. Such notice
may include or be accompanied by a copy of the Control Share
Acquisition Statement received by the Trust pursuant to this
Article 15, and such other information as the Trust deems
appropriate.
(c) A Person whose voting rights with respect to Shares
acquired in a Control Share Acquisition are considered at a
meeting of Shareholders of the Trust with respect to one of the
four ownership thresholds specified in Section 15.1(c)(1) above
and not approved may not demand Shareholder consideration of
its voting rights in connection with a Control Share
Acquisition with respect to the same ownership threshold at any
subsequent Shareholder meeting held within two calendar years
of the initial meeting at which such Persons voting rights were
considered with respect to such threshold, and, for the
avoidance of doubt, such Person shall not have voting rights
with respect to such Shares except to the extent approved at a
future meeting held after the expiration of such two year
period and, after the expiration of such two year period, such
Person may deliver a Control Share Acquisition Statement (in
accordance with Section 15.2 above) with respect to such Shares
(and/or any other Shares acquired in a Control Share
Acquisition with respect to the same ownership threshold) and
may demand Shareholder consideration of the voting rights to be
authorized for such Shares (in accordance with Section 15.3(a)
above).
15.4 Authorization of Voting Rights. The Person who has
acquired Beneficial
Ownership of Shares in a Control Share Acquisition shall have
the same voting rights with respect to those Shares as the
Beneficial Owners of all other Shares of the same class or
series of the Trust only to the extent authorized by vote of
Shareholders of the Trust at an annual meeting, special meeting
in lieu of an annual meeting or special meeting at which such
authorization is considered pursuant to Section 15.3(a) above.
At any such meeting, such authorization shall be considered
prior to any other matter that is subject to a Shareholder
vote, and such authorization shall require the affirmative vote
of the holders of a majority of the Shares entitled to vote
generally in the election of Trustees, excluding Interested
Shares. For the avoidance of doubt, Interested Shares shall be
treated in the same manner in connection with such
authorization as Shares acquired in a Control Share Acquisition
for which no authorization is approved by Shareholders, as
provided in the following sentence. If no such vote is adopted,
(a) the Beneficial Owner of such Shares acquired in a Control
Share Acquisition shall not have power to vote such Shares on
any matters listed in Article V, Section 1 of the Declaration
of Trust, such Shares held by such Beneficial Owner shall not
be entitled to the voting power set forth in Article V,
Section 1 of the Declaration of Trust and the Beneficial Owner
of such Shares shall not otherwise have voting rights with
respect to such Shares with respect to any matter pursuant to
these Bylaws or the Declaration of Trust, and (b) such Shares
shall not be considered entitled to vote for purposes of
determining quorum pursuant to Article V, Section 3 of the
Declaration of Trust and shall not be considered present and
entitled to vote with respect to any adjournment within the
meaning of Article 10, Section 10.2 of these Bylaws. Such
Shares shall have power to vote (including the voting power
prescribed in the Declaration of Trust), be entitled to vote
and be present and entitled to vote upon transfer of
Beneficial Ownership of such Shares to another Person unless
such transfer constitutes a Control Share Acquisition by the
acquirer, in which event the ability of the acquirer to vote
such Shares shall be subject to the provisions of this Article
15.
15.5 Persons Required to Provide Information;
Interpretation. (a) Each Person who owns Shares either
beneficially or of record shall provide to the Trust such
information as the Trust may request as is necessary for the
Trust to apply the provisions in this Article 15.
(b) Upon approval by a majority of the Board of Trustees,
the Board of Trustees may adopt policies, procedures or
resolutions to supply any omission, cure any ambiguity or
correct or supplement any defective or inconsistent provisions
contained in this Article 15. Any interpretation of any term or
provision contained in this Article 15 made by the Trustees in
good faith shall be conclusive and binding upon all
Shareholders of the Trust.
