THE GABELLI HEALTHCARE & WELLNESSRx TRUST THIRD AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST February 16, 2011
Exhibit (a)(i)
THE GABELLI HEALTHCARE & WELLNESSRx TRUST
THIRD AMENDED AND RESTATED AGREEMENT
AND DECLARATION OF TRUST
AND DECLARATION OF TRUST
February 16, 2011
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 |
- i -
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 |
11 | |||
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 |
12 | |||
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 |
- ii -
6.3 Record Date |
14 | |||
6.4 Quorum and Required Vote |
14 | |||
6.5 Proxies,
etc. |
14 | |||
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 |
15 | |||
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 |
19 | |||
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 |
20 |
- iii -
THE GABELLI HEALTHCARE & WELLNESSRx TRUST
THIRD AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
THIRD AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST made as of the 16th
day of February 2011, 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 Second Amended Agreement and Declaration
of Trust made as of the 26th day of February 2009 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.
- 1 -
“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 Third 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.3 801, 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.
- 2 -
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, shall not be under legal
disability and shall meet any additional qualifications as may be provided for in the By-Laws.
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
- 3 -
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.
- 4 -
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,
- 5 -
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,
- 6 -
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
- 7 -
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
- 8 -
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,
- 9 -
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.
- 10 -
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
- 11 -
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
- 12 -
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.
- 13 -
6.3 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.
- 14 -
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.
- 15 -
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
- 16 -
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
- 17 -
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 1 2b-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
- 18 -
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
- 19 -
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.
- 20 -
(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.
- 21 -
IN WITNESS WHEREOF, the undersigned have caused these presents to be executed as of the day and
year first above written.
By:
/s/ Xxxxxx X. Xxxxxxx
|
/s/ Xxxxx X. Xxxxxxx
|
|||||
Trustee
|
Trustee | |||||
/s/ Xxxxxxx X. Xxxxxxxx
|
/s/ Xxxxxx X. Xxxxxxx
|
|||||
Trustee
|
Trustee | |||||
/s/ Xxxxx X. Xxxx
|
/s/ Xxxxxxxx X. xxx Xxxxx
|
|||||
Trustee
|
Trustee | |||||
/s/ Xxxxxxx X. Xxxxxxx
|
/s/ Xxxxxxxxx X. Xxxxx
|
|||||
Trustee
|
Trustee |
- 22 -
