Exhibit - 99 (a)
THE GABELLI GLOBAL GOLD, NATURAL RESOURCES & INCOME TRUST
--------------------------------------------
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
--------------------------------------------
JANUARY 4, 2005
AMENDED AND RESTATED JANUARY 12. 2005
TABLE OF CONTENTS
ARTICLE I The Trust
1.1 Name...................................................................5
1.2 Definitions............................................................5
ARTICLE II Trustees
2.1 Number and Qualification...............................................6
2.2 Term and Election......................................................6
2.3 Resignation and Removal................................................7
2.4 Vacancies..............................................................7
2.5 Meetings...............................................................8
2.6 Officers...............................................................8
ARTICLE III Powers and Duties of Trustees
3.1 General................................................................9
3.2 Investments............................................................9
3.3 Legal Title............................................................9
3.4 Issuance and Repurchase of Shares.....................................10
3.5 Borrow Money or Utilize Leverage......................................10
3.6 Collection and Payment................................................10
3.7 Expenses..............................................................10
3.8 By-Laws...............................................................11
3.9 Miscellaneous Powers..................................................11
3.10 Delegation; Committees................................................11
3.11 Further Powers........................................................11
ARTICLE IV Limitations of Liability and Indemnification
4.1 No Personal Liability of Shareholders, Trustees, etc..................12
4.2 Mandatory Indemnification.............................................12
4.3 No Duty of Investigation; Notice in Trust Instruments, etc............13
4.4 Reliance on Experts, etc..............................................14
ARTICLE V Shares of Beneficial Interest
5.1 Beneficial Interest...................................................14
5.2 Classes and Series....................................................14
5.3 Issuance of Shares....................................................15
2
5.4 Rights of Shareholders................................................15
5.5 Trust Only............................................................15
5.6 Register of Shares....................................................15
5.7 Transfer Agent and Registrar..........................................16
5.8 Transfer of Shares....................................................16
5.9 Notices...............................................................16
5.10 Net Asset Value.......................................................17
5.11 Distributions to Shareholders.........................................17
ARTICLE VI Shareholders
6.1 Meetings of Shareholders..............................................17
6.2 Voting................................................................17
6.3 Notice of Meeting, Shareholder Proposals and Record Date..............18
6.4 Quorum and Required Vote..............................................18
6.5 Proxies, etc..........................................................19
6.6 Reports...............................................................20
6.7 Inspection of Records.................................................20
6.8 Shareholder Action by Written Consent.................................20
ARTICLE VII Duration: Termination of Trust; Amendment; Mergers, Etc.
7.1 Duration..............................................................20
7.2 Termination...........................................................20
7.3 Amendment Procedure...................................................21
7.4 Merger, Consolidation and Sale of Assets..............................22
7.5 Redemption; Conversion................................................22
7.6 Certain Transactions..................................................23
ARTICLE VIII Miscellaneous
8.1 Filing................................................................25
8.2 Resident Agent........................................................25
8.3 Governing Law.........................................................25
8.4 Counterparts..........................................................25
8.5 Reliance by Third Parties.............................................25
8.6 Provisions in Conflict with Law or Regulation.........................25
3
THE GABELLI GLOBAL GOLD, NATURAL RESOURCES & INCOME TRUST
AGREEMENT AND DECLARATION OF TRUST
AGREEMENT AND DECLARATION OF TRUST made as of the 4th day of
January, 2005, by the Trustees hereunder, and by the holders of shares of
beneficial interest issued hereunder as hereinafter provided.
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
this Declaration and the Certificate of Trust filed with the Secretary of State
of the State of Delaware on January 4, 2005 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.
4
ARTICLE I
The Trust
1.1 Name. This Trust shall be known as the "The Gabelli Global
Gold, Natural Resources & Income Trust" and the Trustees shall conduct the
business of the Trust under that name or any other name or names as they may
from time to time determine.
1.2 Definitions. As used in this Declaration, the following
terms shall have the following meanings:
The terms "Affiliated Person", "Assignment", "Commission",
"Interested Person" and "Principal Underwriter" shall have the meanings given
them in the 1940 Act.
"By-Laws" shall mean the By-Laws of the Trust as amended from
time to time by the Trustees.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
"Commission" shall mean the Securities and Exchange
Commission.
"Declaration" shall mean this 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.
5
"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.
6
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.
7
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 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.
8
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.
9
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.
10
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.
11
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.
12
(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.
13
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 funds or
payments derived from any reinvestment of such proceeds in whatever form the
same may be, shall irrevocably belong to such class subject only to the rights
of the creditors, and all liabilities allocable to such class shall be charged
thereto.
14
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.
15
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 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.
16
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.
17
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 to each Shareholder of
record entitled to vote thereat at its registered address, mailed 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.
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.
18
(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.
19
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.
20
(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.
21
(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".
22
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).
23
(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.
24
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.
25
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.
26
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
By: /s/ Xxxxx X. Xxxxxx
--------------------
Xxxxx X. Xxxxxx
Sole Trustee and President
27
