The Gabelli Healthcare & WellnessRx Trust
Exhibit to Item 77Q1(a)
THE GABELLI HEALTHCARE & WELLNESSRx TRUST
SECOND AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
February 26, 2009
TABLE OF CONTENTS
ARTICLE I.
The Trust
1.1 Name 1
1.2 Definitions 1
ARTICLE II.
Trustees
2.1 Number and Qualification 3
2.2 Term and Election 3
2.3 Resignation and Removal 3
2.4 Vacancies 4
2.5 Meetings 4
2.6 Officers 5
ARTICLE III.
Powers and Duties of Trustees
3.1 General 5
3.2 Investments 5
3.3 Legal Title 6
3.4 Issuance and Repurchase of Shares 6
3.5 Borrow Money or Utilize Leverage 6
3.6 Collection and Payment 6
3.7 Expenses 6
3.8 By-Laws 7
3.9 Miscellaneous Powers 7
3.10 Delegation; Committees 7
3.11 Further Powers 7
ARTICLE IV.
Limitations of Liability and Indemnification
4.1 No Personal Liability of Shareholders, Trustees, etc 8
4.2 Mandatory Indemnification 8
4.3 No Duty of Investigation; Notice in Trust Instruments, etc 9
4.4 Reliance on Experts, etc 10
ARTICLE V.
Shares of Beneficial Interest
5.1 Beneficial Interest 10
5.2 Classes and Series 10
5.3 Issuance of Shares 10
5.4 Rights of Shareholders 11
5.5 Trust Only 11
5.6 Register of Shares 11
5.7 Transfer Agent and Xxxxxxxxx 00
5.8 Transfer of Shares 11
5.9 Notices 12
5.10 Net Asset Value 12
5.11 Distributions to Shareholders. 12
ARTICLE VI.
Shareholders
6.1 Meetings of Shareholders 13
6.2 Voting 13
6.3 Notice of Meeting, Shareholder Proposals and Record Date 13
6.4 Quorum and Required Vote. 14
6.5 Proxies, etc 15
6.6 Reports 15
6.7 Inspection of Records 15
6.8 Shareholder Action by Written Consent 15
ARTICLE VII.
Duration: Termination of Trust; Amendment; Mergers, Etc.
7.1 Duration 16
7.2 Termination. 16
7.3 Amendment Procedure. 16
7.4 Merger, Consolidation and Sale of Assets 17
7.5 Redemption; Conversion 17
7.6 Certain Transactions 18
ARTICLE VIII.
Miscellaneous
8.1 Filing 20
8.2 Resident Agent 20
8.3 Governing Law 20
8.4 Counterparts 20
8.5 Reliance by Third Parties 20
8.6 Provisions in Conflict with Law or Regulation. 21
THE GABELLI HEALTHCARE & WELLNESSRx TRUST
SECOND AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
SECOND AMENDED AND RESTATED AGREEMENT AND DECLARATION OF
TRUST made as of the 26th day of February 2009, by the Trustees
hereunder, and by the holders of shares of beneficial interest
issued hereunder as hereinafter provided.
WHEREAS, the Trustees desire to amend and restate the
Amended Agreement and Declaration of Trust made as of the 9th day
of April 2007 in its entirety pursuant to its Section 7.3;
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 all in accordance
with the provisions hereinafter set forth;
WHEREAS, the Trustees have agreed to manage all property
coming into their hands as Trustees of a Delaware statutory
trust in accordance with the provisions hereinafter set forth;
and
WHEREAS, the parties hereto intend that the Trust created
by its initial Agreement and Declaration of Trust and the
Certificate of Trust filed with the Secretary of State of the
State of Delaware on February 20, 2007 shall constitute a
statutory trust under the Delaware Statutory Trust Statute and
that this Declaration shall constitute the governing instrument
of such statutory trust.
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 "The Gabelli
Healthcare & WellnessRx 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 Investment Company Act of 1940, as
amended.
"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.
"Commission" shall mean the Securities and Exchange
Commission.
"Declaration" shall mean this Second Amended and Restated
Agreement and Declaration of Trust, as amended or amended and
restated from time to time, including by way of any classifying
or reclassifying Shares of any class or any series of any such
class or determining any designations, powers, preferences,
voting, conversion and other rights, limitations, qualifications
and terms and conditions thereof.
"Delaware Statutory Trust Statute" shall mean the
provisions of the Delaware Statutory Trust Act, 12 Del. C.
ss.3801, et. seq., as such Act may be amended from time to time.
"Person" shall mean and include natural persons,
corporations, partnerships, trusts, limited liability companies,
associations, joint ventures and other entities, whether or not
legal entities, and governments and agencies and political
subdivisions thereof.
"Prospectus" shall mean the currently effective Prospectus
of the Trust, if any, under the Securities Act of 1933, as
amended.
"Shareholders" shall mean as of any particular time the
holders of record of outstanding Shares of the Trust at such
time.
"Shares" shall mean the transferable units of beneficial
interest into which the beneficial interest in the Trust shall
be divided from time to time and includes fractions of Shares as
well as whole Shares. All references to Shares shall be deemed
to be Shares of any or all or series thereof as the context may
require.
"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 applicable
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
applicable exemptions granted therefrom, as amended from time to
time.
ARTICLE II.
Trustees
2.1 Number and Qualification. Prior to a public offering
of Shares, there may be a sole Trustee and thereafter the number
of Trustees shall be such number, not less than three, as shall
be set forth in a written instrument signed or adopted by a
majority of the Trustees then in office. No reduction in the
number of Trustees shall have the effect of removing any Trustee
from office prior to the expiration of his term. An individual
nominated as a Trustee shall be at least 21 years of age and not
older than such age as shall be set forth in a written
instrument signed or adopted by not less than two-thirds of the
Trustees then in office and shall not be under legal disability.
Trustees need not own Shares and may succeed themselves in
office.
2.2 Term and Election. The Board of Trustees shall be
divided into three classes. Within the limits specified in
Section 2.1, the number of the Trustees in each class shall be
determined by resolution of the Board of Trustees. The initial
term of office of the first class shall expire on the date of
the first annual meeting of Shareholders or special meeting in
lieu thereof. The initial term of office of the second class
shall expire on the date of the second annual meeting of
Shareholders or special meeting in lieu thereof. The initial
term of office of the third class shall expire on the date of
the third annual meeting of Shareholders or special meeting in
lieu thereof. Upon expiration of the initial term of office of
each class as set forth above and the expiration of each
subsequent term of office of such class, the term of Trustees of
such class shall be three years and until his or her successor
shall have been elected and shall have qualified or until his or
her earlier resignation, removal, incompetence, incapacitation
or death.
2.3 Resignation and Removal. Any Trustee may resign his
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 provided in such instrument. Any Trustee may be removed
(provided the aggregate number of Trustees after such removal
shall not be less than the number required by Section 2.1
hereof) for cause at any time by written instrument, signed by a
majority of the remaining Trustees, specifying the date when
such removal shall become effective. Any Trustee may be removed
(provided the aggregate number of Trustees after such removal
shall not be less than the minimum number required by Section
2.1 hereof) without cause at any time by a written instrument,
signed or adopted by two-thirds of the remaining Trustees or by
vote of Shares having not less than two-thirds of the aggregate
number of Shares entitled to vote in the election of such
Trustee, specifying the date when such removal shall become
effective. Upon the resignation or removal of a Trustee, or such
persons otherwise ceasing to be a Trustee, such persons shall
execute and deliver such documents as the remaining Trustees
shall require for the purpose of conveying to the 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 removal,
resignation, incompetence or other incapacity to perform the
duties of the office, or death, of a Trustee. Whenever a vacancy
in the Board of Trustees shall occur, the remaining Trustees may
fill such vacancy by appointing an individual having the
qualifications described in this Article by a written instrument
signed or adopted by a majority of the Trustees then in office
or by election by the Shareholders, or may leave such vacancy
unfilled or may reduce the number of Trustees (provided the
aggregate number of Trustees after such reduction shall not be
less than the minimum number required by Section 2.1 hereof).
Any vacancy created by an increase in Trustees may be filled by
the appointment of an individual having the qualifications
described in this Article by a majority of the Trustees then in
office or by election by the Shareholders. No vacancy shall
operate to annul this Declaration or to revoke any existing
agency created pursuant to the terms of this Declaration.
Whenever a vacancy in the number of Trustees shall occur, until
such vacancy is filled as provided herein, the Trustees in
office, regardless of their number, shall have all the powers
granted to the Trustees and shall discharge all the duties
imposed upon the Trustees by this Declaration.
2.5 Meetings. Meetings of the Trustees shall be held from
time to time upon the call of the Chairman, if any, the
President, the Secretary or any two Trustees. Regular meetings
of the Trustees may be held without call or notice at a time and
place fixed by the By-Laws or by resolution of the Trustees.
Notice of any other meeting shall be mailed or, to the extent
permitted by applicable law, transmitted by electronic mail or
other form of legally permissible electronic transmission not
less than 48 hours before the meeting or otherwise actually
delivered orally or in writing not less than 24 hours before the
meeting, but may be waived in writing by any Trustee either
before or after such meeting. The attendance of a Trustee at a
meeting shall constitute a waiver of notice of such meeting
except where a Trustee attends a meeting for the express purpose
of objecting to the transaction of any business on the ground
that the meeting has not been lawfully called or convened. The
Trustees may act with or without a meeting. A quorum for all
meetings of the Trustees shall be one-third of the Trustees then
in office. Unless provided otherwise in this Declaration of
Trust, any action of the Trustees may be taken at a meeting by
vote of a majority of the Trustees present (a quorum being
present) or without a meeting by written consent of a majority
of the Trustees or such other proportion as shall be specified
herein for action at a meeting at which all Trustees then in
office are present.
Any committee of the Trustees, including an executive
committee, if any, may act with or without a meeting. A quorum
for all meetings of any such committee shall be a majority of
the members thereof. Unless provided otherwise in this
Declaration, any action of any such committee may be taken at a
meeting by vote of a majority of the members present (a quorum
being present) or without a meeting by written consent of a
majority of the members or such other proportion as shall be
specified herein for action at a meeting at which all committee
members are present.
With respect to actions of the Trustees and any committee
of the Trustees, Trustees who are Interested Persons in any
action to be taken may be counted for quorum purposes under this
Section and shall be entitled to vote to the extent not
prohibited by the 1940 Act.
All or any one or more Trustees may participate in a
meeting of the Trustees or any committee thereof by means of a
conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear
each other; participation in a meeting pursuant to any such
communications system shall constitute presence in person at
such meeting except as otherwise provided by the 1940 Act.
The Trustees may elect a Chairman of the Board of Trustees,
who shall not, in his or her capacity as such, be an officer of
the Trust and who shall serve at the pleasure of the Trustees.
2.6 Officers. The Trustees shall elect a President, a
Secretary and a Treasurer who shall serve at the pleasure of the
Trustees or until their successors are elected. The Trustees may
elect or appoint or may authorize the Chairman, if any, or
President to appoint such other officers or agents with such
other titles and powers as the Trustees may deem to be advisable.
A Chairman shall, and the President, Secretary and Treasurer may,
but need not, be a Trustee.
ARTICLE III.
Powers and Duties of Trustees
3.1 General. The Trustees shall owe to the Trust and its
Shareholders the same fiduciary duties as owed by directors of
corporations to such corporations and their stockholders under
the general corporation law of the State of Delaware. The
Trustees shall have exclusive and absolute control over the
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.
3.2 Investments. The Trustees shall have power to:
(a) manage, conduct, operate and carry on the business of
an investment company;
(b) subscribe for, invest in, reinvest in, purchase or
otherwise acquire, hold, pledge, sell, assign, transfer,
exchange, distribute or otherwise deal in or dispose of any and
all sorts of property, tangible or intangible, including but not
limited to securities of any type whatsoever, whether equity or
non-equity, of any issuer, evidences of indebtedness of any
person and any other rights, interests, instruments or property
of any sort and to exercise any and all rights, powers and
privileges of ownership or interest in respect of any and all
such investments of every kind and description, including,
without limitation, the right to consent and otherwise act with
respect thereto, with power to designate one or more Persons to
exercise any of said rights, powers and privileges in respect of
any of said investments. The Trustees shall not be limited by
any law limiting the investments which may be made by
fiduciaries.
3.3 Legal Title. Legal title to all the 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 shall be effective whether or not
conveyancing documents have been executed and delivered.
3.4 Issuance and Repurchase of Shares. Subject to the
provisions of this Declaration and applicable law, the Trustees
shall have the power to issue, sell, repurchase, redeem, retire,
cancel, acquire, hold, resell, reissue, dispose of, transfer,
and otherwise deal in, Shares, including Shares in fractional
denominations, and to apply to any such repurchase, redemption,
retirement, cancellation or acquisition of Shares any funds or
property whether capital or surplus or otherwise, to the full
extent now or hereafter not prohibited by the laws of the State
of Delaware governing statutory trusts.
3.5 Borrow Money or Utilize Leverage. The Trustees shall
have the power to borrow money or otherwise obtain credit or
utilize leverage in connection with the activities of the Trust
to the maximum extent permitted by law, including by regulation
or order, and to secure the same by mortgaging, pledging or
otherwise subjecting as security the assets of the 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 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,
amend or repeal By-Laws.
3.9 Miscellaneous Powers. The Trustees shall have the
power to: (a) employ or contract with such Persons as the
Trustees may deem desirable for the transaction of the business
of the Trust, including investment advisors, administrators,
custodians, transfer agents, shareholder services providers,
accountants, counsel, brokers, dealers and others, and to
delegate or grant to such persons all such power and authority
as the Trustees may determine; (b) enter into joint ventures,
partnerships and any other combinations or associations; (c)
purchase, and pay for out of Trust Property, insurance policies
insuring the Shareholders, Trustees, officers, employees, agents,
investment advisors, 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; and (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.
3.10 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 0000 Xxx.
3.11 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, other than the Trust or its
Shareholders, 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 such 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, as such, of the Trust,
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 above in this Section 4.2 by
reason of his having acted in any such capacity, except with
respect to any matter as to which he shall not have acted in
good faith in the reasonable belief that his action was in the
best interest of the 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 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 as if the Trust were a corporation organized under the
Delaware General Corporation Law provided that such
indemnification has been approved by a majority of the Trustees.
4.3 No Duty of Investigation; Notice in 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 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 advisor,
administrator, manager, distributor, selected dealer, accountant,
appraiser or other expert or consultant selected with reasonable
care by the Trustees, officers or employees of the 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 interest of the beneficiaries
hereunder shall be divided into an unlimited number of shares of
beneficial interest, par value $.001 per share. All Shares
issued in accordance with the terms hereof, including, without
limitation, Shares issued in connection with a dividend in
Shares or a split of Shares, shall be fully paid and
nonassessable when the consideration determined by the Trustees
(if any) therefor shall have been received by the 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 shall be designated as "Common Shares",
subject to redesignation as aforesaid. To the extent expressly
determined by the Trustees as aforesaid, all consideration
received by the 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 Trusts or payments derived from any
reinvestment of such proceeds in whatever form the same may be,
shall irrevocably belong to such class subject only to the
rights of the creditors, and all liabilities allocable to such
class shall be charged thereto.
5.3 Issuance of Shares. The Trustees, in their discretion,
may from time to time without vote of the Shareholders issue
Shares of any class or any series of any such class to such
party or parties and for such amount and type of consideration,
including cash or property, at such time or times, and on such
terms as the Trustees may determine, and may in such manner
acquire other assets (including the acquisition of assets
subject to, and in connection with the assumption of,
liabilities) and businesses. The Trustees may from time to time
divide or combine the Shares of any class or any series of any
such class into a greater or lesser number without thereby
changing the proportionate beneficial interest in such Shares.
Issuances and repurchases of Shares may be made in whole Shares
and/or l/l,000ths of a Share or multiples thereof as the
Trustees may determine.
5.4 Rights of Shareholders. The Shares shall be personal
property giving only the rights in this Declaration specifically
set forth. The ownership of the Trust Property of every
description and the right to conduct any business are vested
exclusively in the Trustees, and the Shareholders shall have no
interest therein other than the beneficial interest conferred by
their Shares, and they shall have no right to call for any
partition or division of any property, profits, rights or
interests of the Trust nor can they be called upon to share or
assume any losses of the Trust suffer an assessment of any kind
by virtue of their ownership of Shares. The Shares shall not
entitle the holder to preference, preemptive, appraisal,
conversion or exchange rights (except as specified in this
Section 5.4, in Section 7.4 or as specified by the Trustees in
the designation or redesignation of any class or series thereof
of the Shares).
5.5 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.
5.6 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. It is
not contemplated that certificates will be issued for the
Shares; however, the Trustees, in their discretion, may
authorize the issuance of share certificates and promulgate
appropriate fees therefore and rules and regulations as to their
use.
5.7 Transfer Agent and Registrar. The Trustees shall have
power to employ a transfer agent or transfer agents, and a
registrar or registrars, with respect to the Shares. The
transfer agent or transfer agents may keep the applicable
register and record therein, the original issues and transfers,
if any, of the said Shares. Any such transfer agent and
registrar shall perform the duties usually performed by transfer
agents and registrars of stock in a corporation, as modified by
the Trustees.
5.8 Transfer of Shares. Shares shall be transferable on
the records of the 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.
5.9 Notices. Any and all notices to which any Shareholder
hereunder may be entitled and any and all communications to any
Shareholder shall be deemed duly given or made if transmitted by
electronic mail or other form of legally permissible electronic
transmission, or if mailed, postage prepaid, addressed to any
Shareholder of record at his last known address as recorded on
the applicable register of the Trust and may be sent together
with any such notice or other communication to another
Shareholder at the same address. To the extent consistent with
applicable law, including any regulation or order, or consented
to by any Shareholder, any such notice or other communication
may be given or made in any other manner. Notice directed to a
Shareholder by electronic mail or other form of legally
permissible electronic transmission shall be transmitted to any
address at which the Shareholder receives electronic mail or
other electronic transmissions.
5.10 Net Asset Value. The value of the assets of the 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.
5.11 Distributions to Shareholders.
(a) The Trustees shall from time to time distribute among
the Shares (or one or more classes or series thereof) such
portion of the net profits, surplus (including paid-in surplus),
capital, or assets held by the Trustees as they may deem proper
or as may otherwise be determined in the instrument setting
forth the terms of such Shares or such class or series of Shares,
which need not be ratable with respect to distributions in
respect of Shares of any other class or series thereof of the
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.
(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. An annual or special meeting of
Shareholders may be called at any time only by the Trustees;
provided, however, that if May 31 of any year shall have passed
and the Trustees shall not have called an annual meeting of
Shareholders for such year, the Trustees shall call a meeting
for the purpose of voting on the removal of one or more Trustees
or the termination of any investment advisory agreement or
independent accountants, upon written request of holders of
Shares of the Trust having in the aggregate not less than a
majority of the votes of the outstanding Shares of the Trust
entitled to vote on the matter or matters in question, such
request specifying the purpose or purposes for which such
meeting is to be called. Any meeting of Shareholders shall be
held within or without the State of Delaware on such day and at
such time as the Trustees shall designate.
6.2 Voting. Shareholders shall have no power to vote on
any matter (including matters as to which the Delaware Statutory
Trust Statute specifies a voting requirement in the absence of a
provision in the Declaration, it being the intention of this
Declaration that Shareholders shall have no power to vote on any
such matter except as described herein) except matters on which
a vote of Shares is required by or pursuant to the 1940 Act,
this Declaration, the By-Laws or resolution of the Trustees. Any
matter required to be submitted for approval of any of the
Shares and affecting one or more classes or series shall require
approval by the required vote of Shares of the affected class or
classes and series voting together as a single class and, if
such matter affects one or more classes or series thereof
differently from one or more other classes or series thereof or
from one or more series of the same class, approval by the
required vote of Shares of such other class or classes or series
or series voting as a separate class shall be required in order
to be approved with respect to such other class or classes or
series or series; provided, however, that except to the extent
required by the 1940 Act, there shall be no separate class votes
on the election or removal of Trustees or the selection of
auditors for the 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 by mail or, to the extent permitted by applicable law
or consented to by the Shareholder, transmitted by electronic
mail or other form of legally permissible electronic
transmission to each Shareholder of record entitled to vote
thereat at its registered address or electronic address, mailed
or transmitted at least 10 days before the meeting or otherwise
in compliance with applicable law. Except with respect to an
annual meeting, at which any business required by the 1940 Act
may be conducted, only the business stated in the notice of the
meeting shall be considered at such meeting. Subject to the
provisions of applicable law, any Shareholder wishing to include
a proposal to be considered at an annual meeting must submit
such proposal to the Trust at least 30 days in advance of such
meeting. Any adjourned meeting may be held as adjourned one or
more times without further notice not later than 130 days after
the record date. For the purposes of determining the
Shareholders who are entitled to notice of and to vote at any
meeting the Trustees may, without closing the transfer books,
fix a date not more than 100 days prior to the date of such
meeting of Shareholders as a record date for the determination
of the Persons to be treated as Shareholders of record for such
purposes. Notice directed to a Shareholder by electronic mail
or other form of legally permissible electronic transmission
shall be transmitted to any address at which the Shareholder
receives electronic mail or other electronic transmissions.
6.4 Quorum and Required Vote.
(a) The holders of one-third of the outstanding Shares of
the 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 one-
third of the outstanding Shares of a class or classes on the
record date present in person or by proxy shall constitute a
quorum at any meeting of the Shareholders of such class or
classes for purposes of conducting business on which a vote of
Shareholders of such class or classes is being taken. The
holders of one-third of the outstanding Shares of a series or
series on the record date present in person or by proxy shall
constitute a quorum at any meeting of the Shareholders of such
series or series for purposes of conducting business on which a
vote of Shareholders of such series or series is being taken.
Shares underlying a proxy as to which a broker or other
intermediary states its absence of authority to vote with
respect to one or more matters shall be treated as present for
purposes of establishing a quorum for taking action on any such
matter only to the extent so determined by the Trustees at or
prior to the meeting of Shareholders at which such matter is to
be considered.
(b) Subject to any provision of the 1940 Act or this
Declaration specifying or requiring a greater or lesser vote
requirement for the transaction of any matter of business at any
meeting of Shareholders or, in the absence of any such provision
of the 1940 Act or this Declaration, subject to any provision of
the By-Laws or resolution of the Trustees specifying or
requiring a greater or lesser vote requirement, (i) the
affirmative vote of a plurality (or, if provided by the By-Laws,
a majority) of the Shares present in person or represented by
proxy and entitled to vote for the election of any Trustee or
Trustees shall be the act of such Shareholders with respect to
the election of such Trustee or Trustees, (ii) the affirmative
vote of a majority of the Shares present in person or
represented by proxy and entitled to vote on any other matter
shall be the act of the Shareholders with respect to such matter,
and (iii) where a separate vote of one or more classes or series
is required on any matter, the affirmative vote of a majority of
the Shares of such class or classes or series or series present
in person or represented by proxy and entitled to vote on such
matter shall be the act of the Shareholders of such class or
classes or series or series with respect to such matter. Except
to the extent otherwise required by the 1940 Act, a majority of
the Shares of any series or class shall mean the lesser of a
majority of the outstanding Shares of such class or series and
at least 67% of a quorum of at least 50% of the Shares held of
record on the relevant record date present in person or by proxy.
6.5 Proxies, etc. At any meeting of Shareholders, any
holder of Shares entitled to vote thereat may vote by proxy,
provided that no proxy shall be voted at any meeting unless it
shall have been placed on file with the Secretary, or with such
other officer or agent of the 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 shall be entitled to vote. Each full
Share shall be entitled to one vote and each fractional Share
shall be entitled to a vote equal to its fraction of a full
Share. When any Share is held jointly by several persons, any
one of them may vote at any meeting in person or by proxy in
respect of such Share, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Share.
A proxy purporting to be given by or on behalf of a Shareholder
of record on the record date for a meeting shall be deemed valid
unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. If the holder
of any such Share is a minor or a person of unsound mind, and
subject to guardianship or to the legal control of any other
person as regards the charge or management of such Share, he may
vote by his guardian or such other person appointed or having
such control, and such vote may be given in person or by proxy.
The Trustees shall have the authority to make and modify from
time to time regulations regarding the validity of proxies. In
addition to signed proxies, such regulations may authorize
facsimile, telephonic, Internet and other methods of appointing
a proxy that are subject to such supervision by or under the
direction of the Trustees as the Trustees shall determine.
6.6 Reports. The Trustees shall cause to be prepared and
sent to Shareholders at least annually and more frequently to
the extent and in the form required by law or any exchange on
which Shares are listed a report of operations containing
financial statements of the Trust prepared in conformity with
generally accepted accounting principles and applicable law.
6.7 Inspection of Records. The records of the Trust shall
be open to inspection by Persons who have been holders of record
of at least $25,000 (or such higher amount as may be authorized
by law) in net asset value or liquidation preference of Shares
for a continuous period of not less than six months to the same
extent and for the same purposes as is permitted under the
Delaware General Business Corporation Law to shareholders of a
Delaware business corporation.
6.8 Shareholder Action by Written Consent. Any action
which may be taken by Shareholders by vote may be taken without
a meeting if the holders of all of the Shares entitled to vote
thereon consent to the action in writing and the written
consents are filed with the records of the meetings of
Shareholders. Such consent shall be treated for all purposes as
a vote taken at a meeting of Shareholders.
ARTICLE VII.
Duration: Termination of Trust; Amendment; Mergers, Etc.
7.1 Duration. Subject to termination in accordance with
the provisions of Section 7.2 hereof, the Trust created hereby
shall have perpetual existence.
7.2 Termination.
(a) The Trust may be dissolved, after two thirds of the
Trustees then in office have approved a resolution therefor,
upon approval by Shares having at least 75% of the votes of all
of the Shares outstanding on the record date for such meeting,
voting as a single class except to the extent required by the
1940 Act. Upon the dissolution of the Trust:
(i) The Trust shall carry on no business except for
the purpose of winding up its affairs.
(ii) The Trustees shall proceed to wind up the affairs
of the Trust and all of the powers of the Trustees under this
Declaration shall continue until the affairs of the Trust shall
have been wound up, including the power to fulfill or discharge
the contracts of the Trust, collect its assets, sell, convey,
assign, exchange, merger 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 with the same vote as
required for dissolution pursuant to paragraph (a) above.
(iii) After paying or adequately providing for the
payment of all liabilities, and upon receipt of such releases,
indemnities and refunding agreements, as they deem necessary for
their protection, the Trustees may distribute the remaining
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.
7.3 Amendment Procedure.
(a) Except as required by applicable law or this
Declaration, the Trustees may amend this Declaration without any
vote of Shareholders, including to change the name of the 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. If a vote
of Shareholders is required by applicable law or this
Declaration, or if the Trustees determine to submit an amendment
to a vote of Shareholders, then, other than with respect to
amendments of Sections 2.2, 2.3, 3.8, 6.1, 6.2, 6.4, 6.8, 7.1,
7.2, 7.3, 7.4, 7.5 and 7.6, this Declaration may be amended,
after a majority of the Trustees then in office have approved a
resolution therefor, by the affirmative vote set forth in
Section 6.4(b)(ii). Sections 2.2, 2.3, 3.8, 6.1, 6.2, 6.4, 6.8,
7.1, 7.2, 7.3, 7.4, 7.5 and 7.6 may only be amended, after a
majority of the Trustees then in office have approved a
resolution therefor, by the affirmative vote of the holders of
not less than 75% of the affected Shares outstanding on the
record date.
(b) Nothing contained in this Declaration shall permit the
amendment of this Declaration to impair the exemption from
personal liability of the Shareholders, Trustees, officers,
employees and agents of the Trust or to permit assessments upon
Shareholders.
(c) An amendment duly adopted by the requisite vote of the
Board of Trustees and, if required, Shareholders as aforesaid,
shall become effective at the time of such adoption or at such
other time as may be designated by the Board of Trustees or
Shareholders, as the case may be. A certification signed by a
majority of the Trustees setting forth an amendment and reciting
that it was duly adopted by the Trustees and, if required,
Shareholders as aforesaid, or a copy of the Declaration, as
amended, and executed by a majority of the Trustees, shall be
conclusive evidence of such amendment when lodged among the
records of the Trust or at such other time designated by the
Trustees.
Notwithstanding any other provision hereof, until such time
as Shares are issued and outstanding, this Declaration may be
terminated or amended in any respect by the affirmative vote of
a majority of the Trustees or by an instrument signed by a
majority of the Trustees then in office.
7.4 Merger, Consolidation and Sale of Assets. Subject to
Section 7.6, the 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 good will or may convert
into another form of organization, upon such terms and
conditions and for such consideration when and as authorized by
two-thirds of the Trustees then in office and thereafter
approved by the affirmative vote of the holders of not less than
75% (a majority (as defined in Section 6.4(b)) in the event the
provisions of the governing instruments of the entity resulting
from such transaction or, in the case of a sale or exchange of
assets, the acquiring entity contain substantially the same
provisions as Sections 2.2, 2.3, 3.8, 6.1, 6.2, 6.4, 6.8, 7.1,
7.2, 7.3, 7.4, 7.5 and 7.6 of this Declaration) of the affected
Shares outstanding on the record date for the meeting of
Shareholders to approve such transaction, and any such merger,
consolidation, sale, lease, exchange or conversion shall be
determined for all purposes to have been accomplished under and
pursuant to the statutes of the State of Delaware.
7.5 Redemption; Conversion. No holder of Shares of any
class or series, other than in accordance with the provisions of
Section 23(c) (excluding Rule 23c-3 thereunder) of the 1940 Act
and other than to the extent expressly determined by the
Trustees with respect to Shares qualifying as preferred stock
pursuant to Section 18(a) of the 1940 Act, shall have any right
to require the 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 investment company" to an "open-
end investment company" as those terms are defined by the 1940
Act or a company obligated to repurchase shares under Rule 23c-3
of the 1940 Act (an "interval company"), upon the approval of
such a proposal, together with the necessary amendments to this
Declaration to permit such a conversion, by two-thirds of the
Trustees then in office, by the holders of not less than 75% of
the Trust's outstanding Shares entitled to vote thereon and by
such vote or votes of the holders of any class or classes or
series of Shares as may be required by the 1940 Act. From time
to time, the Trustees may consider recommending to the
Shareholders a proposal to convert the Trust from a "closed-end
company" to an "open-end company" or "interval company." Upon
the recommendation and subsequent adoption of such a proposal
and the necessary amendments to this Declaration to permit such
a conversion by the requisite proportion of the 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 investment company".
7.6 Certain Transactions. (a) Subject to the exceptions
provided in paragraph (d) of this Section, the types of
transactions described in paragraph (c) of this Section shall,
following the completion of the initial public offering of the
common Shares, require the affirmative vote or consent of the
holders of 80% of the Shares of each class outstanding and
entitled to vote, voting as a separate class, when a Principal
Shareholder (as defined in paragraph (b) of this Section) is a
party to the transaction. Such affirmative vote or consent shall
be in addition to the vote or consent of the holders of Shares
otherwise required by or pursuant to the 1940 Act, this
Declaration, the Bylaws or resolution of the Board of Trustees.
(b) The term "Principal Shareholder" shall mean any Person
which is the beneficial owner, directly or indirectly, of five
percent (5%) or more of the outstanding Shares and shall include
any affiliate or associate, as such terms are defined in clause
(ii) below, of such Person. For the purposes of this Section, in
addition to the Shares which a Person beneficially owns directly,
(a) any Person shall be deemed to be the beneficial owner of any
Shares (i) which it has the right to acquire pursuant to any
agreement or upon exercise of conversion rights or warrants, or
otherwise (but excluding share options granted by the 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 the same class
or series of securities beneficially owned by such Principal
Shareholder immediately prior to such offering or, in the case
of a class or series not then owned beneficially by such
Principal Shareholder, the percentage of Common Shares
beneficially owned by such Principal Shareholder immediately
prior to such offering).
(iii) The sale, lease or exchange of all or any
substantial part of the assets of the Trust to any Principal
Shareholder (except assets having an aggregate fair market value
of less than $5,000,000, aggregating for the purpose of such
computation all assets sold, leased or exchanged in any series
of similar transactions within a twelve-month period).
(iv) The sale, lease or exchange to the 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 $5,000,000, aggregating
for the purposes of such computation all assets sold, leased or
exchanged in any series of similar transactions within a twelve-
month period).
(v) The purchase by the Trust or any Person controlled
by the Trust of any Common Shares of the Trust from such
Principal Shareholder or any person to whom such Principal
Shareholder shall have knowingly transferred such Common Shares
other than pursuant to a tender offer available to all
Shareholders of the same class or series in which such Principal
Shareholder or transferee tenders no greater percentage of the
Shares of such class or series than are tendered by all other
Shareholders of such class or series in the aggregate.
(d) The provisions of this Section shall not be applicable
to (i) any of the transactions described in paragraph (c) of
this Section if two-thirds of the Board of Trustees then in
office shall by resolution have approved a memorandum of
understanding or agreement with such Principal Shareholder with
respect to and substantially consistent with such transaction
prior to the time such Person shall have become a Principal
Shareholder, or (ii) any such transaction with any corporation
of which a majority of the outstanding shares of all classes of
a stock normally entitled to vote in elections of directors is
owned of record or beneficially by the 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 $5,000,000, and (iv) the memorandum of
understanding or agreement referred to in paragraph (d) hereof
is substantially consistent with the transaction covered thereby.
Any such determination shall be conclusive and binding for all
purposes of this Section.
ARTICLE VIII.
Miscellaneous
8.1 Filing. This Declaration and any amendment (including
any supplement) hereto shall be filed in such places as may be
required or as the Trustees deem appropriate. Each amendment
shall be accompanied by a certificate signed and acknowledged by
a Trustee stating that such action was duly taken in a manner
provided herein, and shall, upon insertion in the Trust's minute
book, be conclusive evidence of all amendments contained therein.
A restated Declaration, containing the original Declaration as
amended by all amendments theretofore made, may be executed from
time to time by a majority of the Trustees and shall, upon
insertion in the Trust's minute book, be conclusive evidence of
all amendments contained therein and may thereafter be referred
to in lieu of the original Declaration and the various
amendments thereto.
8.2 Resident Agent. The Trust shall maintain a resident
agent in the State of Delaware, which agent shall initially be
The Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000. The Trustees may designate a successor resident
agent, provided, however, that such appointment shall not become
effective until written notice thereof is delivered to the
office of the Secretary of the State.
8.3 Governing Law. This Declaration is executed by a
majority of the Trustees and delivered in the State of Delaware
and with reference to the laws thereof, and the rights of all
parties and the validity and construction of every provision
hereof shall be subject to and construed according to the laws
of said State and reference shall be specifically made to the
business corporation law of the State of Delaware as to the
construction of matters not specifically covered herein or as to
which an ambiguity exists, although such law shall not be viewed
as limiting the powers otherwise granted to the Trustees
hereunder and any ambiguity shall be viewed in favor of such
powers.
8.4 Counterparts. This Declaration may be simultaneously
executed in several counterparts, each of which shall be deemed
to be an original, and such counterparts, together, shall
constitute one and the same instrument, which shall be
sufficiently evidenced by any such original counterpart.
8.5 Reliance by Third Parties. Any certificate executed by
an individual who, according to the records of the 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 which 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.
8.6 Provisions in Conflict with Law or Regulation.
(a) The provisions of this Declaration are severable, and
if the Trustees shall determine, with the advice of counsel,
that any of such provisions is in conflict with the 1940 Act,
the regulated investment company provisions of the Code or with
other applicable laws and regulations, the conflicting provision
shall be deemed never to have constituted a part of this
Declaration to the extent of such conflict; provided, however,
that such determination shall not affect any of the remaining
provisions of this Declaration or render invalid or improper any
action taken or omitted prior to such determination.
(b) If any provision of this Declaration shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provision
in any other jurisdiction or any other provision of this
Declaration in any jurisdiction.
IN WITNESS WHEREOF, the undersigned has caused these
presents to be executed as of the day and year first above written.
By:
__________________
Xxxxxx X. Xxxxxxx
__________________
Xxxxxxx X. Xxxxxxxx
__________________
Xxxxx X. Xxxx
__________________
Xxxxxxx X. Xxxxxxx
__________________
Xxxxx X. Xxxxxxx
__________________
Xxxxxx X. Xxxxxxx
__________________
Xxxxxxxx X. xxx Xxxxx
__________________
Xxxxxxxxx X. Xxxxx
