AMENDED AND RESTATED BYLAWS
OF
RMR ASIA PACIFIC REAL ESTATE FUND
(Dated as of February 22, 2010)
ARTICLE I
AGREEMENT AND DECLARATION OF TRUST AND PRINCIPAL OFFICE
1.1 Agreement and Declaration of Trust. These Bylaws shall be subject
to the Agreement and Declaration of Trust, as amended or restated from time
to time (the "Declaration of Trust"), of RMR ASIA PACIFIC REAL ESTATE FUND,
the Delaware statutory trust established by the Declaration of Trust (the
"Trust"). Capitalized terms used in these Bylaws and not otherwise defined
herein shall have the meanings given to such terms in the Declaration of Trust.
ARTICLE II
TRUSTEES
2.1 General Powers; Qualifications; Trustees Holding Over. The business
and affairs of the Trust shall be managed under the direction of its Board
of Trustees. A Trustee shall be an individual at least 21 years of age who
is not under legal disability. To qualify for nomination or election as a
Trustee, an individual, at the time of nomination and election, shall, without
limitation, (a) have substantial expertise or experience relevant to the
business of the Trust and its subsidiaries (as defined in Section 8.12(f)
(iii)),
(b) not have been convicted of a felony and (c) meet the qualifications of an
Independent Trustee or a Managing Trustee, each as defined in Section 2.2, as
the case may be, depending upon the position for which such individual may be
nominated and elected. In case of failure to elect Trustees at an annual
meeting of Shareholders, the incumbent Trustees shall hold over and continue to
direct the management of the business and affairs of the Trust until they may
resign or until their successors are elected and qualify.
2.2 Independent Trustees and Managing Trustees. A majority of the Trustees
holding office shall at all times be Independent Trustees; provided, however,
that upon a failure to comply with this requirement as a result of the creation
of a temporary vacancy which shall be filled by an Independent Trustee, whether
as a result of enlargement of the Board of Trustees or the resignation, removal
or death of a Trustee who is an Independent Trustee, such requirement shall not
be applicable. An "Independent Trustee" is one who is not an employee of RMR
Advisors, who is not involved in the Trust's day-to-day activities, who is not
an "interested person" of the Trust (as defined in the 1940 Act), except for
the fact of his or her being a Trustee, and who meets the qualifications of an
independent director under the applicable rules of each stock exchange upon
which shares of the Trust are listed for trading and the Securities and Exchange
Commission, as those requirements may be amended from time to time. If the
number of Trustees, at any time, is set at less than five, at least one Trustee
shall be a Managing Trustee. So long as the number of Trustees shall be five
or greater, at least two Trustees shall be Managing Trustees. "Managing
Trustees" shall mean Trustees who are not Independent Trustees and who have
been employees, officers or directors of the investment advisor of the Trust
or involved in the day-to-day activities of the Trust during the one year
prior to their election. If at any time the Board of Trustees shall not be
comprised of a majority of Independent Trustees, the Board of Trustees shall
take such actions as will cure such condition; provided that the fact that the
Board of Trustees does not have a majority of Independent Trustees or has not
taken such action at any time or from time to time shall not affect the
validity of any action taken by the Board of Trustees. If at any time the
Board of Trustees shall not be comprised of a number of Managing Trustees as
is required under this Section 2.2, the Board of Trustees shall take such
actions as will cure such condition; provided that the fact that the Board of
Trustees does not have the requisite number of Managing Trustees or has not
taken such action at any time or from time to time shall not affect the
validity of any action taken by the Board of Trustees.
2.3 Number of Trustees. The number of Trustees shall be initially set at
five. Each of the Trustees shall be designated as a Class I, Class II or Class
III Trustee as required by the Declaration of Trust. The number of Trustees
constituting the entire Board of Trustees may be increased or decreased from
time to time only by a vote of the Board of Trustees; provided, however, that
the tenure of office of a Trustee shall not be affected by any decrease in the
number of Trustees; provided, further, that the number of Trustees shall not
be less than three.
2.4 Regular Meetings. Regular meetings of the Board of Trustees may be held
without call or notice at such places and at such times as the Trustees may
From time to time determine, provided that notice of the first regular meeting
following any such determination shall be given to absent Trustees.
2.5 Special Meetings. Special meetings of the Trustees may be called
at any time by any Managing Trustee, the President or pursuant to the request
of any two Trustees then in office. The person or persons authorized to call
special meetings of the Board of Trustees may fix any place, either within or
without the State of Delaware, as the place for holding any special meeting
of the Board of Trustees called by them.
2.6 Notice. Notice of any special meeting shall be given by written notice
delivered personally or by electronic mail, telephoned, facsimile transmitted,
overnight couriered (with proof of delivery) or mailed to each Trustee at his or
her business or residence address. Personally delivered, telephoned, facsimile
transmitted or electronically mailed notices shall be given at least 24 hours
prior to the meeting. Notice by mail shall be deposited in the U.S. mail at
least 72 hours prior to the meeting. If mailed, such notice shall be deemed
to be given when deposited in the U.S. mail properly addressed, with postage
thereon prepaid.
Electronic mail notice shall be deemed to be given upon transmission of the
message to the electronic mail address given to the Trust by the Trustee.
Telephone notice shall be deemed given when the Trustee is personally given
such notice in a telephone call to which he is a party. Facsimile
transmission notice shall be deemed given upon completion of the transmission
of the message to the
number given to the Trust by the Trustee and receipt of a completed answer back
indicating receipt. If sent by overnight courier, such notice shall be deemed
given when delivered to the courier. Neither the business to be transacted at,
nor the purpose of, any annual, regular or special meeting of the Trustees need
be stated in the notice, unless specifically required by statute or these
Bylaws.
2.7 Quorum. A majority of the Trustees shall constitute a quorum for
transaction of business at any meeting of the Board of Trustees, provided that,
if less than a majority of such Trustees are present at a meeting, a majority
of the Trustees present may adjourn the meeting from time to time without
further notice. The Trustees present at a meeting of the Board of Trustees
which has been
duly called and convened and at which a quorum was established may continue to
transact business until adjournment, notwithstanding the withdrawal of a number
of Trustees resulting in less than a quorum then being present at the meeting.
Whether or not a Trustee votes on a matter at a meeting which he or she
attends, he or she will nonetheless be considered present for purposes of
establishing a quorum to consider the matter.
2.8 Voting. The action of the majority of the Trustees present at a meeting
at which a quorum is or was present shall be the action of the Board of
Trustees,
unless the concurrence of a greater proportion is required for such action by
specific provision of an applicable statute, the Declaration of Trust or these
Bylaws. If enough Trustees have withdrawn from a meeting to leave fewer than
are required to establish a quorum, but the meeting is not adjourned, the
action of the majority of that number of Trustees necessary to constitute a
quorum atsuch meeting shall be the action of the Board of Trustees, unless the
concurrence of a greater proportion is required for such action by applicable
law, the Declaration of Trust or these Bylaws.
2.9 Telephonic Meetings. Except as required by the 1940 Act or other
applicable law, attendance at Board of Trustees meetings may be in person or
bya teleconference or other communications medium by means of which all persons
participating in the meeting can hear and speak with each other.
2.10 Action by Written Consent. Unless specifically otherwise provided in
the Declaration of Trust, any action required or permitted to be taken at any
meeting of the Board of Trustees may be taken without a meeting, if a majority
of the Trustees shall individually or collectively consent in writing to
such action.
Such written consent or consents shall be filed with the records of the Trust
and shall have the same force and effect as the affirmative vote of such
Trustees at a duly held meeting of the Board of Trustees at which a quorum
was present.
2.11 Waiver of Notice. The actions taken at any meeting of the Trustees,
however called and noticed or wherever held, shall be as valid as though
taken at a meeting duly held after regular call and notice if a quorum is
present and if,either before or after the meeting, each of the Trustees
not present waives notice,
consents to the holding of such meeting or approves the minutes thereof.
2.12 Vacancies. If for any reason any or all the Trustees cease to be
Trustees,such event shall not terminate the Trust or affect these Bylaws or
the powers ofthe remaining Trustees hereunder (even if fewer than three
Trustees remain).
Subject to the requirements of the 1940 Act or other applicable law, any
vacancies
in the Board of Trustees, including vacancies resulting from increases in the
number of Trustees or otherwise, shall be filled by a majority of the Trustees
then in office, whether or not sufficient to constitute a quorum, or by a sole
remaining Trustee; provided, however, that if the Shareholders of any class or
series of Shares are entitled separately to elect one or more Trustees, a
majority of the remaining Trustees elected by that class or series or the sole
remaining Trustee elected by that class or series may fill any vacancy among
the number of Trustees elected by that class or series. A Trustee elected by
the Trustees to fill any vacancy occurring in the Board of Trustees, whether
occurring due to an increase in size of the Board of Trustees or by the death,
resignation or removal of any Trustee, shall serve until the next annual meeting
of Shareholders at which such Trustee's Class shall be elected and qualifies,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office. Any Trustee elected by Shareholders at an annual meeting
to fill any vacancy occurring in the Board of Trustees, whether occurring due
to an increase in size of the Board of trustees or by the death, resignation
or removal of any Trustee, that has arisen since the preceding annual meeting
of Shareholders (which vacancy has not been filled by election of a new Trustee
by the Trustees) shall hold office for a term which coincides with the
remaining term of the Class of Trustee to which such office was previously
assigned. Any person elected or appointed as a Trustee shall meet the
criteria for office set forth from time to time in the Bylaws.
2.13 Compensation. The Trustees shall be entitled to receive such reasonable
compensation for their services as Trustees as the Trustees may determine from
time to time. Trustees may be reimbursed for expenses of attendance, if any,
at each annual, regular or special meeting of the Trustees or of any committee
thereof; and for their expenses, if any, in connection with each property
visit and any other service or activity performed or engaged in as Trustees.
The Trustees shall be entitled to receive remuneration for services rendered
to the Trust in any other capacity, and such services may include, without
limitation, services as an officer of the Trust, services as an employee of
the Advisor, legal, accounting or other professional services, or services
as a broker, transfer agent or underwriter, whether performed by a Trustee
or any person affiliated with a Trustee.
2.14 Reliance. Each Trustee, officer, employee and agent of the Trust
shall, in the performance of his or her duties with respect to the Trust,
be entitled to rely on any information, opinion, report or statement,
including any financial statement or other financial data, prepared or
presented by an officer or employee of the Trust or by RMR Advisors,
accountants, appraisers or other experts or consultants selected by the
Board of Trustees or officers of the Trust, regardless of whether such
counsel or expert may also be a Trustee.
2.15 Qualifying Shares Not Required. Trustees need not be Shareholders.
2.16 Emergency Provisions. Notwithstanding any other provision in the
Declaration of Trust or these Bylaws, this Section 2.16 shall apply during the
existence of any catastrophe, or other similar emergency condition, as a result
of which a quorum of the Board of Trustees under Article II cannot readily be
obtained (an "Emergency"). During any Emergency, unless otherwise provided by
the Board of Trustees, (a) a meeting of the Board of Trustees may be called by
any Managing Trustee or officer of the Trust by any means feasible under the
circumstances and (b) notice of any meeting of the Board of Trustees during
such an Emergency may be given less than 24 hours prior to the meeting
to as many Trustees and by such means as it may be feasible at the time,
including publication, television or radio.
ARTICLE III
OFFICERS
3.1 Enumeration; Qualification. The officers of the Trust shall be a
President, a Treasurer, a Secretary, and such other officers including a
Chairman of the Trustees, if any, as the Trustees from time to time may
in their discretion elect. The Trust may also have such agents as the
Trustees from time to time may in their discretion appoint. The Chairman
of the Trustees, if one is elected, shall be a Trustee and may but need
not be a Shareholder; and any other officer may but does not need to be
a Trustee or a Shareholder. Any two or more offices may be held by the
same person.
3.2 Election. The President, the Treasurer, and the Secretary shall be
elected annually by the Trustees. Other officers, if any, may be elected or
appointed by the Trustees at any time. Vacancies in any office may be filled
by the Board of Trustees at any time.
3.3 Tenure. The Chairman of the Trustees, if one is elected, the
President, the Treasurer and the Secretary shall hold office until their
respective successors are chosen and qualified, or in each case until he
or she sooner dies, resigns, is removed with or without cause or becomes
disqualified. Each other officer shall hold office and each agent of the
Trust shall retain authority at the pleasure of the Trustees.
3.4 Powers. Subject to the other provisions of these Bylaws, each officer
shall have, in addition to the duties and powers herein and in the Declaration
of Trust set forth, such duties and powers as the Board of Trustees or any
senior officer may from time to time designate.
3.5 Chairman; President; Vice President. Unless the Trustees otherwise
provide, the Chairman of the Trustees or, if there is none or in the absence
of the Chairman, the President shall preside at all meetings of the
Shareholders and
of the Trustees. Alternatively, the Trustees may designate one Trustee or
another officer to preside at such meetings. The Trustees may designate a
chief executive officer from among the Trustees or the elected officers.
Any Vice President shall have such duties and powers as may be designated
from time to time by the Trustees or the President.
3.6 Treasurer; Assistant Treasurer. The Treasurer shall be the chief
financial and chief accounting officer of the Trust, and shall, subject to any
arrangement made by the Trustees with a custodian, investment adviser,
sub-adviser, manager, or transfer, shareholder servicing or similar agent, be
in charge of the valuable papers, books of account and accounting records of
the Trust, and shall have such other duties and powers as may be designated
from time to time by the Trustees or by the President. Any Assistant Treasurer
shall have such duties and powers as may be designated from time to time by
the Trustees,the President or the Treasurer.
3.7 Secretary; Assistant Secretary. The Secretary (or his or her designee)
shall record all proceedings of the Shareholders and the Trustees in books to be
kept therefor, which books or a copy thereof shall be kept at the principal
office of the Trust. In the absence of the Secretary from any meeting of
Shareholders or Trustees, an Assistant Secretary, or if there be none or if he
or she is absent, a temporary secretary chosen at such meeting shall record the
proceedings thereof in the aforesaid books. Any Assistant Secretary shall have
such duties and powers as may be designated from time to time by the Trustees,
the President or the Secretary.
3.8 Removal and Resignations. Any officer or agent of the Trust may be
removed by the Trustees if in their judgment the best interests of the Trust
would be served thereby, but the removal shall be without prejudice to the
contract rights, if any, of the person so removed. Any officer of the Trust
may resign at any time by giving written notice of his or her resignation to
the Trustees, the Chairman of the Trustees, the President or the Secretary.
Any resignation shall take effect at any time specified therein or, if the time
when it shall become effective is not specified therein, immediately upon its
receipt. The acceptance of a resignation shall not be necessary to make it
effective unless otherwise stated in the resignation. A resignation shall be
without prejudice to the contract rights, if any, of the Trust.
ARTICLE IV
COMMITTEES
4.1 Appointment. The powers, duties and responsibilities of the Trustees
maybe delegated to one or more Committees. Trustees, officers or agents of the
Trust may serve on Committees, but all Committees shall have at least one
Trustee who will serve as Chairman of the Committee. Committees shall have the
powers, duties and responsibilities as may be assigned to them by the Trustees.
The Trustees may delegate any of the powers of the Trustees to Committees
appointed under this Section 4.1 and composed solely of Trustees, except as
prohibited by law.
4.2 Meetings; Notice. Notice of Committee meetings shall be given in the
same manner as notice for special meetings of the Board of Trustees. One-third,
but not less than one, of the members of any Committee shall be present in
person at any meeting of a Committee in order to constitute a quorum for the
transaction of business at a meeting, and the act of a majority present at a
meeting at the time of a vote if a quorum is then present shall be the act of
a committee. The Chairman of the Committee shall fix the time and place of a
Committee's meetings unless the Board of Trustees shall otherwise provide.
4.3 Telephonic Meetings. Except as required by the 1940 Act or other
applicable law, members of a Committee may participate in a meeting by means
of a conference telephone or similar communications equipment and participation
in a meeting by these means shall constitute presence in person at the meeting.
4.4 Action by Written Consent of Committees. Any action required or
permitted to be taken at any meeting of a Committee may be taken without a
meeting, if a consent in writing to such action is signed by a majority of
the Committee and such written consent is filed with the minutes of proceedings
of such Committee.
4.5 Vacancies. Subject to the provisions hereof, the Board of Trustees
shall have the power at any time to change the membership of any Committee,
to fill all vacancies, to designate alternate members to replace any absent
or disqualified member or to dissolve any such Committee.
ARTICLE V
FISCAL YEAR
5.1 General. Except as from time to time otherwise provided by the
Trustees, the fiscal year of the Trust shall be a calendar year.
ARTICLE VI
SEAL
6.1 General. The Board of Trustees may authorize the adoption of a
seal by the Trust. The Trustees may authorize one or more duplicate seals.
Whenever the Trust is permitted or required to affix its seal to a document,
it shall be sufficient to meet the requirements of any law, rule or regulation
relating to a seal to place the word "(SEAL)" adjacent to the signature of
the person authorized to execute the document on behalf of the Trust.
ARTICLE VII
EXECUTION OF PAPERS
7.1 General. Except as the Trustees may generally or in particular cases
authorize the execution thereof in some other manner, all deeds, leases,
transfers, contracts, bonds, notes, checks, drafts and other obligations made,
accepted or endorsed by the Trust shall be executed by the President, any
Vice President, the Treasurer or by whomever else shall be designated for
that purpose by vote of the Trustees, and need not bear the seal of the Trust.
ARTICLE VIII
SHAREHOLDERS' VOTING POWERS AND MEETINGS
8.1 Regular and Special Meetings. Except as provided in the next
sentence, regular meetings of the Shareholders for the election of Trustees
and the transaction of such other business as may properly come before the
meeting shall be held, so long as Shares are listed for trading on the NYSE
Amex LLC, on at least an annual basis, on such day and at such place as shall
be designated by the Trustees. Such regular meetings of the Shareholders
shall only be called by the Board of Trustees. In the event that such a
meeting is not held in any annual period, whether the omission be by
oversight or otherwise, a subsequent special meeting may be called by the
Trustees and held in lieu of such meeting with the same effect as if held
within such annual period. Except as required by the 1940 Act or other
applicable law, special meetings of Shareholders or any or all classes or
series of Shares may only be called by a majority of the Trustees from time
to time for such other purposes as may be prescribed by law, by the
Declaration of Trust or by these Bylaws, or for the purpose of taking action
upon any other matter deemed by the Trustees to be necessary or desirable.
A special meeting of Shareholders may be held at any such time, day and
place as is designated by the Board of Trustees.
8.2 Notice of Regular or Special Meetings. Written notice specifying
the place, day and hour of any regular or special meeting, the purpose of
the meeting, to the extent required by law to be provided, and all other
matters required by law shall be given to each Shareholder of record
entitled to vote, either personally or by sending a copy thereof by mail,
postage prepaid, to his or her address appearing on the books of the Trust
or theretofore given by him or her to the Trust for the purpose of notice
or, if no address appears or has been given, addressed to the place where
the principal office of the Trust is situated, or by electronic
transmission, including facsimile transmission, to any address or number of
such Shareholder at which the Shareholder receives electronic transmissions.
If mailed, such notice shall be deemed to be given once deposited in the
U.S. mail addressed to the Shareholder at his or her post office address as
it appears on the records of the Trust, with postage thereon prepaid. It
shall be the duty of the Secretary to give notice of each meeting of
Shareholders. Whenever notice of a meeting is required to be given to a
Shareholder under the Declaration of Trust or these Bylaws, a written waiver
thereof, executed before or after the meeting by such Shareholder or his
or her attorney thereunto authorized and filed with the records of the
meeting, shall be deemed equivalent to such notice. Notice of a meeting
need not be given to any Shareholder who attends the meeting.
8.3 Notice of Adjourned Meetings. It shall not be necessary to give
notice of the time and place of any adjourned meeting or of the business
to be transacted thereat other than by announcement at the meeting at
which such adjournment is taken.
8.4 Scope of Meetings. Except as otherwise expressly set forth
elsewhere in these Bylaws, no business shall be transacted at meetings of
Shareholders except as specifically designated in the notice or otherwise
properly brought before the Shareholders by or at the direction of the
Board of Trustees.
8.5 Organization of Shareholder Meetings. Every meeting of
Shareholders shall be conducted by a Trustee, the President or any other
officer, as designated by the Board of Trustees, who shall preside at and
act as chairperson of a meeting of Shareholders. The Secretary, an
Assistant Secretary or a person appointed by the Trustees or, in the
absence of such appointment, a person appointed by the person presiding
as chairperson at the meeting shall act as Secretary of the meeting and
record the minutes of the meeting. If the Secretary presides as
chairperson at a meeting of Shareholders, then the Secretary shall not
also act as secretary of the meeting and record the minutes of the meeting.
The order of business and all other matters of procedure at any meeting of
Shareholders shall be determined by the chairperson of the meeting. The
chairperson of the meeting may prescribe such rules, regulations and
procedures and take such action as, in the discretion of such chairperson,
are appropriate for the proper conduct of the meeting, including, without
limitation: (a) restricting admission to the time set for the
commencement of the meeting; (b) limiting attendance at the meeting to
Shareholders of record of the Trust, their duly authorized proxies or
other such persons as the chairperson of the meeting may determine; (c)
limiting participation at the meeting on any matter to Shareholders of record
of the Trust entitled to vote on such matter, their duly authorized proxies
or other such persons as the chairperson of the meeting may determine; (d)
limiting the time allotted to questions or comments by participants; (e)
maintaining order and security at the meeting; (f) removing any Shareholder
or other person who refuses to comply with meeting procedures, rules or
guidelines as set forth by the chairperson of the meeting; (g) concluding
a meeting or recessing or adjourning the meeting to a later date and
time and at a place announced at the meeting; and (h) complying with any
state and local laws and regulations concerning safety and security.
Without limiting the generality of the powers of the chairperson of the
meeting pursuant to the foregoing provisions, the chairperson, subject to
review by the Independent Trustees, may adjourn any meeting of
Shareholders for any reason deemed necessary by the chairperson,
including, without limitation, if (i) no quorum is present for the
transaction of the business, (ii) the Board of Trustees or the
chairperson of the meeting determines that adjournment is necessary or
appropriate to enable the Shareholders to consider fully information
that the Board of Trustees or the chairperson of the meeting determines
has not been made sufficiently or timely available to Shareholders or
(iii) the Board of Trustees or the chairperson of the meeting determines
that adjournment is otherwise in the best interests of the Trust.
Unless otherwise determined by the chairperson of the meeting, meetings
of Shareholders shall not be required to be held in accordance with the
general rules of parliamentary procedure or any otherwise established
rules of order.
8.6 Quorum. At any meeting of Shareholders, the presence in person
or by proxy of Shareholders entitled to cast a majority of all the votes
entitled to be cast on a particular matter shall constitute a quorum for
voting on a particular matter or the transaction of business; but this
section shall not affect any requirement under any statute or the
Declaration of Trust for the vote necessary for the adoption of any
measure. If, however, such quorum shall not be present at any meeting
of Shareholders, the chairperson of the meeting shall have the power to
adjourn the meeting from time to time without the Trust having to set a
new record date or provide any additional notice of such meeting, subject
to any obligation of the Trust to give notice pursuant to Section 8.3.
At such adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the
meeting as originally notified. The Shareholders present, either in
person or by proxy, at a meeting of Shareholders which has been duly
called and convened and at which a quorum was established may continue
to transact business until adjournment, notwithstanding the withdrawal
of enough votes to leave less than a quorum then being present at the
meeting.
8.7 Voting Power.
(a) Each whole Share shall be entitled to one vote as to any matter
on which it is entitled to vote and each fractional Share shall be
entitled to a proportionate fractional vote, except as otherwise
provided in the notice of the meeting forwarded to the Shareholders
by the Trustees, the Declaration of Trust, these Bylaws, or required
by the 1940 Act or any other applicable law. Except as otherwise
provided in the notice of the meeting forwarded to the Shareholders
by the Trustees, the Declaration of Trust, these Bylaws or required
by the 1940 Act or any other applicable law, all Shares of the Trust
then entitled to vote shall be voted in the aggregate as a single
class without regard to classes or series of Shares. There shall be
no cumulative voting in the election of Trustees.
(b) With regard to election of a Trustee, and except as may be
mandated by the 1940 Act or any other applicable law or the listing
requirements of the principal exchange on which the Common Shares
are listed, subject to the voting rights of any class or series of
Shares as set forth in these Bylaws: (i) a majority of all the votes
cast at a meeting of Shareholders duly called and at which a quorum
is present shall be sufficient to elect a Trustee in an uncontested
election; and (ii) a majority of all the Shares entitled to vote at
a meeting of Shareholders duly called and at which a quorum is present
shall be sufficient to elect a Trustee in a contested election (which,
for purposes of these Bylaws, is an election at which the number of
nominees exceeds the number of Trustees to be elected at the meeting).
Each Share may be voted for as many individuals as there are Trustees
to be elected and for whose election the Share is entitled to be voted.
(c) With regard to any other matter which may properly come before
a meeting of Shareholders duly called and at which a quorum is present,
and except where a different voting standard is required by the 1940
Act or any other applicable law, by the listing requirements of the
principal exchange on which the Common Shares are listed or by a
specific provision of the Declaration of Trust, (i) if such matter
is approved by at least 60% of the Trustees then in office,
including 60% of the Independent Trustees then in office, a
majority of all the votes cast at the meeting shall be required
to approve such matter; and (ii) if such matter is not approved
by at least 60% of the Trustees then in office, including 60% of
the Independent Trustees then in office, 75% of all the Shares
entitled to vote at the meeting shall be required to approve such
matter.
8.8 Proxies. A Shareholder may cast the votes entitled to be
cast by him or her either in person or by proxy executed by the
Shareholder or by his or her duly authorized agent in any manner
permitted by law. Such proxy shall be filed with such officer of
the Trust or third party agent as the Board of Trustees shall
have designated for such purpose for verification at or prior to
such meeting. Any proxy relating to the Shares shall be valid
until the expiration date therein or, if no expiration is so
indicated, for such period as is permitted pursuant to Delaware
law. At a meeting of Shareholders, all questions concerning the
qualification of voters, the validity of proxies, and the acceptance
or rejection of votes, shall be decided by or on behalf of the
chairperson of the meeting, subject to Section 8.11.
8.9 Record Dates. The Board of Trustees may fix the date for
determination of Shareholders entitled to notice of and to vote
at a meeting of Shareholders. If no date is fixed for the
determination of the Shareholders entitled to vote at any meeting
of Shareholders, only persons in whose names Shares entitled to
vote are recorded on the share records of the Trust at the opening
of business on the day of any meeting of Shareholders shall be
entitled to vote at such meeting.
8.10 Voting of Shares by Certain Holders. Shares registered
in the name of a corporation, partnership, trust or other entity,
if entitled to be voted, may be voted by the president or a vice
president, a general partner or trustee thereof, as the case may
be, or a proxy appointed by any of the foregoing individuals,
unless some other person who has been appointed to vote such
Shares pursuant to a bylaw or a resolution of the governing body
of such corporation or other entity or pursuant to an agreement
of the partners of the partnership presents a certified copy of
such bylaw, resolution or agreement, in which case such person
may vote such Shares. Any trustee or other fiduciary may vote
Shares registered in his or her name as such fiduciary, either
in person or by proxy.
8.11 Inspectors.
(a) Before or at any meeting of Shareholders, the chairperson
of the meeting may appoint one or more persons as inspectors for
such meeting. Such inspectors shall (i) ascertain and report the
number of Shares represented at the meeting, in person or by
proxy, and the validity and effect of proxies, (ii) receive and
tabulate all votes, ballots or consents, (iii) report such
tabulation to the chairperson of the meeting and (iv) perform
such other acts as are proper to conduct the election or voting
at the meeting.
(b) Each report of an inspector shall be in writing and signed
by him or her or by a majority of them if there is more than one
inspector acting at such meeting. If there is more than one
inspector, the report of a majority shall be the report of the
inspectors. The report of the inspector or inspectors on the
number of Shares represented at the meeting and the results of
the voting shall be prima facie evidence thereof.
8.12 Advance Notice of Nominees for Trustee and Other Proposals.
(a) Nominations and Other Proposals to be Considered at Meetings
of Shareholders. Nominations of individuals for election to the
Board of Trustees and the proposal of other business to be
considered by the Shareholders at meetings of Shareholders may be
properly brought before the meeting only as set forth in this
Section 8.12.
(b) Annual Meetings of Shareholders.
(i) Nominations of individuals for election to the Board of
Trustees and the proposal of other business to be considered by
the Shareholders at an annual meeting of Shareholders may be
properly brought before the meeting (A) pursuant to the Trust's
notice of meeting or otherwise properly brought before the meeting
by or at the direction of the Board of Trustees or (B) by any
Shareholder of the Trust who (1) has continuously held at least
$2,000 in market value, or 1%, of the Shares entitled to vote at
the meeting on such election or the proposal for other business,
as the case may be, for at least one year from the date such
Shareholder gives the notice provided for in this Section 8.12(b)
(or, if such notice is given prior to December 31, 2009,
continuously held Shares since the Shares have been listed for
trading on the NYSE Amex LLC and without regard to the $2,000
market value, or 1%, requirement), and continuously holds such Shares
through and including the time of the annual meeting (including any
adjournment or postponement thereof), (2) is a Shareholder of record
at the time of giving the notice provided for in this Section 8.12(b)
through and including the time of the annual meeting (including any
adjournment or postponement thereof), (3) is entitled to make
nominations or propose other business and to vote at the meeting on
such election, or the proposal for other business, as the case may be
and (4) complies with the notice procedures set forth in this Section
8.12 as to such nomination or other business. Section 8.12(b)(i)(B)
shall be the exclusive means for a Shareholder to make nominations or
propose other business before an annual meeting of Shareholders,
except to the extent of matters which are required to be presented to
Shareholders by applicable law which have been properly presented in
accordance with the requirements of such law. For purposes of
determining compliance with the requirement in subclause (1) of
Section 8.12(b)(i)(B), the market value of Shares held by the
applicable Shareholder shall be determined by multiplying the
number of Shares such Shareholder continuously held for that
one-year period by the highest selling price of the Shares as
reported on the principal exchange on which the Shares are listed
during the 60 calendar days before the date such notice was submitted.
(ii) For nominations for election to the Board of Trustees or other
business to be properly brought before an annual meeting by a
Shareholder pursuant to Section 8.12(b)(i)(B), the Shareholder shall
have given timely notice thereof in writing to the Secretary in
accordance with this Section 8.12 and such other business shall
otherwise be a proper matter for action by Shareholders. To be
timely, a Shareholder's notice shall set forth all information required
under this Section 8.12 and shall be delivered to the Secretary at the
principal executive offices of the Trust not later than 5:00 p.m.
(Eastern Time) on the 120th day nor earlier than the 150th day prior to
the first anniversary of the date of the proxy statement for the
preceding year's annual meeting; provided that for any nominations or
other business to be properly brought before the annual meeting to
occur during 2010 (the "Initial Annual Meeting") the Shareholder's
notice shall be delivered to the Secretary at the principal executive
offices of the Trust not later than 5:00 p.m. (Eastern Time) on December
31, 2009 nor earlier than December 1, 2009; provided further, however,
that in the event that the annual meeting is called for a date that is
more than 30 days earlier or later than the first anniversary of the
date of the preceding year's annual meeting, notice by the Shareholder
to be timely shall be so delivered not later than 5:00 p.m. (Eastern
Time) on the 10th day following the earlier of the day on which (A)
notice of the date of the annual meeting is mailed or otherwise made
available or (B) public announcement of the date of the annual meeting
is first made by the Trust. Neither the postponement or adjournment of
an annual meeting, nor the public announcement of such postponement or
adjournment, shall commence a new time period for the giving of a
Shareholder's notice as described above. No Shareholder may give a
notice to the Secretary described in this Section 8.12(b)(ii) unless
such Shareholder holds a certificate for all Shares owned by such
Shareholder during all times described in Section 8.12(b)(i), and a
copy of each such certificate held by such Shareholder at the time of
giving such notice shall accompany such Shareholder's notice to the
Secretary in order for such notice to be effective.
A Shareholder's notice shall set forth:
A. as to each individual whom the Shareholder proposes to
nominate for election or reelection as a Trustee (a "Proposed Nominee")
and any Proposed Nominee Associated Person (as defined in Section 8.12
(b)(iv)), (1) the name, age, business address and residence address of
such Proposed Nominee and the name and address of such Proposed Nominee
Associated Person, (2) a statement of whether such Proposed Nominee is
proposed for nomination as an Independent Trustee (as defined in Section
2.2) or a Managing Trustee (as defined in Section 2.2) and a description
of such Proposed Nominee's qualifications to be an Independent Trustee or
Managing Trustee, as the case may be, and such Proposed Nominee's
qualifications to be a Trustee pursuant to the criteria set forth in
Section 2.1, (3) the class, series and number of any Shares that are,
directly or indirectly, beneficially owned or owned of record by such
Proposed Nominee or by such Proposed Nominee Associated Person, (4) the
date such Shares were acquired and the investment intent of such
acquisition, (5) a description of all purchases and sales of securities
of the Trust by such Proposed Nominee or by such Proposed Nominee
Associated Person during the previous 24 month period, including the date
of the transactions, the class, series and number of securities involved
in the transactions and the consideration involved, (6) a description of
all Derivative Transactions (as defined in Section 8.12(b)(iv)) by such
Proposed Nominee or by such Proposed Nominee Associated Person during the
previous 24 month period, including the date of the transactions and the
class, series and number of securities involved in, and the material
economic terms of, the transactions, such description to include,
without limitation, all information that such Proposed Nominee or
Proposed Nominee Associated Person would be required to report on an
Insider Report (as defined in Section 8.12(b)(iv)) if such Proposed
Nominee or Proposed Nominee Associated Person were a Trustee of the
Trust or the beneficial owner of more than 10% of any class or series of
Shares at the time of the transactions, (7) any performance related fees
(other than an asset based fee) that such Proposed Nominee or such
Proposed Nominee Associated Person is entitled to based on any increase
or decrease in the value of Shares or instrument or arrangement of the
type contemplated within the definition of Derivative Transaction, if
any, as of the date of such notice, including, without limitation, any
such interests held by members of such Proposed Nominee's or such
Proposed Nominee Associated Person's immediate family sharing the same
household with such Proposed Nominee or such Proposed Nominee
Associated Person, (8) any proportionate interest in Shares or
instrument or arrangement of the type contemplated within the
definition of Derivative Transaction held, directly or indirectly, by
a general or limited partnership in which such Proposed Nominee or such
Proposed Nominee Associated Person is a general partner or, directly or
indirectly, beneficially owns an interest in a general partner, (9) a
description of all direct and indirect compensation and other material
monetary agreements, arrangements and understandings during the past
three years, and any other material relationships, between or among
such Shareholder, Proposed Nominee Associated Person, or their
respective affiliates and associates, or others acting in concert
therewith, on the one hand, and each Proposed Nominee, or his or her
respective affiliates and associates, or others acting in concert
therewith, on the other hand, including, without limitation, all
information that would be required to be disclosed pursuant to Item
404 of Regulation S-K promulgated by the Securities and Exchange
Commission (the "SEC") (and any successor regulation), if the
Shareholder making the nomination and any Proposed Nominee Associated
Person on whose behalf the nomination is made, or any affiliate or
associate thereof or person acting in concert therewith, were the
"registrant" for purposes of such rule and the Proposed Nominee were
a director or executive officer of such registrant, (10) any rights
to dividends on the Shares owned beneficially by such Proposed Nominee
or such Proposed Nominee Associated Person that are separated or
separable from the underlying Shares, (11) to the extent known by such
Proposed Nominee or such Proposed Nominee Associated Person, the name
and address of any other person who owns, of record or beneficially,
any Shares and who supports the Proposed Nominee for election or
reelection as a Trustee, (12) all other information relating to such
Proposed Nominee or such Proposed Nominee Associated Person that is
required to be disclosed in solicitations of proxies for election of
Trustees in an election contest (even if an election contest is not
involved), or is otherwise required, in each case, pursuant to Section
14 (or any successor provision) of the Exchange Act, and the rules and
regulations promulgated thereunder and (13) such Proposed Nominee's
notarized written consent to being named in the Shareholder's proxy
statement as a nominee and to serving as a Trustee if elected;
B. as to any other business that the Shareholder proposes to
bring before the meeting, (1) a description of such business, (2)
the reasons for proposing such business at the meeting and any
material interest in such business of such Shareholder or any
Shareholder Associated Person (as defined in Section 8.12(b)(iv)),
including any anticipated benefit to such Shareholder or any
Shareholder Associated Person therefrom, (3) a description of all
agreements, arrangements and understandings between such Shareholder
and Shareholder Associated Person amongst themselves or with any
other person or persons (including their names) in connection with
the proposal of such business by such Shareholder and (4) a
representation that such Shareholder intends to appear in person or
by proxy at the meeting to bring the business before the meeting;
C. as to the Shareholder giving the notice and any Shareholder
Associated Person, (1) the class, series and number of all Shares that
are owned of record by such Shareholder or by such Shareholder
Associated Person, if any, (2) the class, series and number of, and
the nominee holder for, any Shares that are owned, directly or
indirectly, beneficially but not of record by such Shareholder or
by such Shareholder Associated Person, if any, (3) with respect to
the foregoing clauses (1) and (2), the date such Shares were
acquired and the investment intent of such acquisition and (4) all
information relating to such Shareholder and Shareholder Associated
Person that is required to be disclosed in connection with the
solicitation of proxies for election of Trustees in an election
contest (even if an election contest is not involved), or is
otherwise required, in each case, pursuant to Section 14 (or any
successor provision) of the Exchange Act and the rules and
regulations promulgated thereunder;
D. as to the Shareholder giving the notice and any Shareholder
Associated Person, (1) the name and address of such Shareholder, as
they appear on the Trust's share ledger and the current name and
address, if different, of such Shareholder and Shareholder
Associated Person and (2) the investment strategy or objective, if
any, of such Shareholder or Shareholder Associated Person and a copy
of the prospectus, offering memorandum or similar document, if any,
provided to investors or potential investors in such Shareholder or
Shareholder Associated Person;
E. as to the Shareholder giving the notice and any Shareholder
Associated Person, (1) a description of all purchases and sales of
securities of the Trust by such Shareholder or Shareholder Associated
Person during the previous 24 month period, including the date of the
transactions, the class, series and number of securities involved in
the transactions and the consideration involved, (2) a description of
all Derivative Transactions by such Shareholder or Shareholder
Associated Person during the previous 24 month period, including the
date of the transactions and the class, series and number of
securities involved in, and the material economic terms of, the
transactions, such description to include, without limitation, all
information that such Shareholder or Shareholder Associated Person
would be required to report on an Insider Report if such Shareholder
or Shareholder Associated Person were a Trustee of the Trust or the
beneficial owner of more than 10% of any class or series of Shares
at the time of the transactions, (3) any performance related fees
(other than an asset based fee) that such Shareholder or Shareholder
Associated Person is entitled to based on any increase or decrease
in the value of Shares or instrument or arrangement of the type
contemplated within the definition of Derivative Transaction, if
any, as of the date of such notice, including, without limitation,
any such interests held by members of such Shareholder's or
Shareholder Associated Person's immediate family sharing the same
household with such Shareholder or Shareholder Associated Person,
(4) any proportionate interest in Shares or instrument or
arrangement of the type contemplated within the definition of
Derivative Transaction held, directly or indirectly, by a general
or limited partnership in which such Shareholder or Shareholder
Associated Person is a general partner or, directly or indirectly,
beneficially owns an interest in a general partner and (5) any
rights to dividends on the Shares owned beneficially by such
Shareholder or Shareholder Associated Person that are separated
or separable from the underlying Shares;
F. to the extent known by the Shareholder giving the notice,
the name and address of any other Person who owns, beneficially or
of record, any Shares and who supports the nominee for election or
reelection as a Trustee or the proposal of other business; and
G. if more than one class or series of Shares is outstanding,
the class and series of Shares entitled to vote for such Proposed
Nominee and/or Shareholder's proposal, as applicable.
(iii) Notwithstanding anything in the second sentence of Section
8.12(b)(ii) to the contrary, in the event that the number of Trustees
to be elected to the Board of Trustees is increased and there is no
public announcement of such action at least 130 days prior to the
first anniversary of the date of the proxy statement for the
preceding year's annual meeting, a Shareholder's notice required by
this Section 8.12(b) also shall be considered timely, but only with
respect to nominees for any new positions created by such increase,
if the notice is delivered to the Secretary at the principal
executive offices of the Trust not later than 5:00 p.m. (Eastern
Time) on the 10th day immediately following the day on which such
public announcement is first made by the Trust.
(iv) For purposes of this Section 8.12, (i) "Shareholder
Associated Person" of any Shareholder shall mean (A) any Person
acting in concert with, such Shareholder, (B) any direct or
indirect beneficial owner of Shares owned of record or
beneficially by such Shareholder and (C) any Person controlling,
controlled by or under common control with such Shareholder or a
Shareholder Associated Person; (ii) "Proposed Nominee Associated
Person" of any Proposed Nominee shall mean (A) any Person acting
in concert with such Proposed Nominee, (B) any direct or indirect
beneficial owner of Shares owned of record or beneficially by
such Proposed Nominee and (C) any Person controlling, controlled
by or under common control with such Proposed Nominee or a
Proposed Nominee Associated Person; (iii) "Derivative Transaction"
by a Person shall mean any (A) transaction in, or arrangement,
agreement or understanding with respect to, any option, warrant,
convertible security, stock appreciation right or similar right
with an exercise, conversion or exchange privilege, or settlement
payment or mechanism related to, any security of the Trust, or
similar instrument with a value derived in whole or in part from
the value of a security of the Trust, in any such case whether
or not it is subject to settlement in a security of the Trust
or otherwise or (B) any transaction, arrangement, agreement or
understanding which included or includes an opportunity for such
person, directly or indirectly, to profit or share in any profit
derived from any increase or decrease in the value of any security
of the Trust, to mitigate any loss or manage any risk associated
with any increase or decrease in the value of any security of the
Trust or to increase or decrease the number of securities of the
Trust which such person was, is or will be entitled to vote, in
any such case whether or not it is subject to settlement in a
security of the Trust or otherwise; and (iv) "Insider Report"
shall mean a statement required to be filed pursuant to Section
16 of the Exchange Act (or any successor provisions) by a person
who is a Trustee of the Trust or who is directly or indirectly
the beneficial owner of more than 10% of any class of Shares.
(c) Shareholder Nominations or Other Proposals Causing Covenant
Breaches or Defaults. At the same time as the submission of any
Shareholder nomination or proposal of other business to be
considered at a Shareholders' meeting that, if approved and
implemented by the Trust, would cause the Trust or any subsidiary
(as defined in Section 8.12(f)(iii)) of the Trust to be in
breach of any covenant of the Trust or any subsidiary of the
Trust or otherwise cause a default (in any case, with or without
notice or lapse of time) in any existing debt instrument or
agreement of the Trust or any subsidiary of the Trust or other
material contract or agreement of the Trust or any subsidiary of
the Trust, the proponent Shareholder or Shareholders shall submit
to the Secretary at the principal executive offices of the Trust
(i) evidence satisfactory to the Board of Trustees of the lender's
or contracting party's willingness to waive the breach of covenant
or default or (ii) a detailed plan for repayment of the indebtedness
to the lender or curing the contractual breach or default and
satisfying any resulting damage claim, specifically identifying the
actions to be taken or the source of funds, which plan must be
satisfactory to the Board of Trustees in its discretion, and
evidence of the availability to the Trust of substitute credit or
contractual arrangements similar to the credit or contractual
arrangements which are implicated by the Shareholder nomination or
other proposal that are at least as favorable to the Trust, as
determined by the Board of Trustees in its discretion.
(d) Shareholder Nominations or Proposals Requiring Governmental
Action. If (i) submission of any Shareholder nomination or
proposal of other business to be considered at a Shareholders'
meeting that could not be considered or, if approved, implemented
by the Trust without the Trust, any subsidiary of the Trust, the
proponent Shareholder, any Proposed Nominee of such Shareholder,
any Proposed Nominee Associated Person of such Proposed Nominee,
any Shareholder Associated Person of such Shareholder, the holder
of proxies or their respective affiliates or associates filing
with or otherwise notifying or obtaining the consent, approval
or other action of any federal, state, municipal or other
governmental or regulatory body (a "Governmental Action") or
(ii) such Shareholder's ownership of Shares or any solicitation
of proxies or votes or holding or exercising proxies by such
Shareholder, any Proposed Nominee of such Shareholder, any
Proposed Nominee Associated Person of such Proposed Nominee, any
Shareholder Associated Person of such Shareholder, or their
respective affiliates or associates would require Governmental
Action, then, at the same time as the submission of any
Shareholder nomination or proposal of other business to be
considered at a Shareholders' meeting, the proponent Shareholder
or Shareholders shall submit to the Secretary at the principal
executive offices of the Trust (x) evidence satisfactory to the
Board of Trustees that any and all Governmental Action has been
given or obtained, including, without limitation, such evidence
as the Board of Trustees may require so that any nominee may be
determined to satisfy any suitability or other requirements or
(y) if such evidence was not obtainable from a governmental or
regulatory body by such time despite the Shareholder's diligent
and best efforts, a detailed plan for making or obtaining the
Governmental Action prior to the election of any such Proposed
Nominee or the implementation of such proposal, which plan must
be satisfactory to the Board of Trustees in its discretion.
(e) Special Meetings of Shareholders. As set forth in Section
8.4, only business brought before the meeting pursuant to the
Trust's notice of meeting shall be conducted at a special meeting
of Shareholders. Subject to the requirements of the 1940 Act or
any other applicable laws, nominations of individuals for
election to the Board of Trustees only may be made at a special
meeting of Shareholders at which Trustees are to be elected:
(i) pursuant to the Trust's notice of meeting; (ii) otherwise
properly brought before the meeting by or at the direction of
the Board of Trustees; or (iii) provided that the Board of
Trustees has determined that Trustees shall be elected at such
special meeting, by any Shareholder of the Trust who has been
for at least one year immediately preceding such Shareholder
giving the notice provided for in this Section 8.12(e) a
Shareholder of record of Shares entitled to vote at the meeting
on such election and continues to be a Shareholder of record
both at the time of giving of notice provided for in this
Section 8.12(e) through and including the time of the special
meeting, who is entitled to vote at the meeting on such
election and who has complied with the notice procedures and
other requirements set forth in this Section 8.12(e). In the
event the Trust calls a special meeting of Shareholders for
the purpose of electing one or more Trustees to the Board of
Trustees, any such Shareholder may nominate an individual or
individuals (as the case may be) for election as a Trustee as
specified in the Trust's notice of meeting, if the Shareholder
satisfies the holding period and certificate requirements set
forth in Section 8.12(b)(i) and Section 8.12(b)(ii), the
Shareholder's notice contains or is accompanied by the information
and documents required by Section 8.12 and the Shareholder has
given timely notice thereof in writing to the Secretary at the
principal executive offices of the Trust. To be timely, a
Shareholder's notice shall be delivered to the Secretary at
the principal executive offices of the Trust not earlier than
the 150th day prior to such special meeting and not later than
5:00 p.m. (Eastern Time) on the later of (i) the 120th day
prior to such special meeting or (ii) the 10th day following
the day on which public announcement is first made of the date
of the special meeting and of the nominees proposed by the
Trustees to be elected at such meeting. Neither the
postponement or adjournment of a special meeting, nor the
public announcement of such postponement or adjournment, shall
commence a new time period for the giving of a Shareholder's
notice as described above.
(f) General.
(i) If information submitted pursuant to this Section 8.12
by any Shareholder proposing a nominee for election as a Trustee
or any proposal for other business at a meeting of Shareholders
shall be deemed by the Board of Trustees incomplete or inaccurate,
any authorized officer or the Board of Trustees or any Committee
may treat such information as not having been provided in
accordance with this Section 8.12. Any notice submitted by a
Shareholder pursuant to this Section 8.12 that is deemed by the
Board of Trustees inaccurate, incomplete or otherwise fails to
satisfy completely any provision of this Section 8.12 shall be
deemed defective and shall thereby render all proposals and
nominations set forth in such notice defective. Upon written
request by the Secretary or the Board of Trustees or any Committee
(which may be made from time to time), any Shareholder proposing
a nominee for election as a Trustee or any proposal for other
business at a meeting of Shareholders shall provide, within three
business days after such request (or such other period as may be
specified in such request), (A) written verification, satisfactory
to the Secretary or any other authorized officer or the Board of
Trustees or any Committee, in his, her or its discretion, to
demonstrate the accuracy of any information submitted by the
Shareholder pursuant to this Section 8.12, (B) written responses
to information reasonably requested by the Secretary, the Board
of Trustees or any Committee and (C) a written update, to a
current date, of any information submitted by the Shareholder
pursuant to this Section 8.12 as of an earlier date. If a
Shareholder fails to provide such written verification,
information or update within such period, the Secretary or any
other authorized officer or the Board of Trustees may treat the
information which was previously provided and to which the
verification, request or update relates as not having been
provided in accordance with this Section 8.12; provided,
however, that no such written verification, response or update
shall cure any incompleteness, inaccuracy or failure in any
notice provided by a Shareholder pursuant to this Section 8.12.
It is the responsibility of a Shareholder who wishes to make a
nomination or other proposal to comply with the requirements of
Section 8.12; nothing in this Section 8.12(f)(i) or otherwise
shall create any duty of the Trust, the Board of Trustees or
any Committee nor any officer of the Trust to inform a
Shareholder that the information submitted pursuant to this
Section 8.12 by or on behalf of such Shareholder is incomplete
or inaccurate or not otherwise in accordance with this Section
8.12 nor require the Trust, the Board of Trustees, any Committee
or any officer of the Trust to request clarification or updating
of information provided by any Shareholder, but the Board of
Trustees, a Committee or the Secretary acting on behalf of the
Board of Trustees or a Committee, may do so in its, his or her
discretion.
(ii) Only such individuals who are nominated in accordance
with this Section 8.12 shall be eligible for election by
Shareholders as Trustees and only such business shall be
conducted at a meeting of Shareholders as shall have been
properly brought before the meeting in accordance with this
Section 8.12. The chairperson of the meeting and the Board of
Trustees shall each have the power to determine whether a
nomination or any other business proposed to be brought before
the meeting was made or proposed, as the case may be, in
accordance with this Section 8.12 and, if any proposed
nomination or other business is determined not to be in
compliance with this Section 8.12, to declare that such
defective nomination or proposal be disregarded.
(iii) For purposes of this Section 8.12: (A) "public
announcement" shall mean disclosure in (1) a press release
reported by the Dow Xxxxx News Service, Associated Press, Business Wire,
PR Newswire or any other widely circulated news or wire service or (2) a
document publicly filed by the Trust with the SEC pursuant to the
Exchange Act; and (B) "subsidiary" shall include, with respect to a
person, any corporation, partnership, joint venture or other entity of
which such person (1) owns, directly or indirectly, 10% or more of the
outstanding voting securities or other interests or (2) has a person
designated by such person serving on, or a right, contractual or otherwise,
to designate a person, so to serve on, the board of directors (or analogous
governing body).
(iv) Notwithstanding the foregoing provisions of this Section 8.12, a
Shareholder shall also comply with all applicable legal requirements,
including, without limitation, applicable requirements of state law, the
1940 Act and the Exchange Act and the rules and regulations thereunder,
with respect to the matters set forth in this Section 8.12. Nothing in
this Section 8.12 shall be deemed to require that a Shareholder nomination
of an individual for election to the Board of Trustees or a Shareholder
proposal relating to other business be included in the Trust's proxy
statement, except as may be required by law.
(v) The Board of Trustees may from time to time require any individual
nominated to serve as a Trustee to agree in writing with regard to matters
of business ethics and confidentiality while such nominee serves as a
Trustee, such agreement to be on the terms and in a form (the "Agreement")
determined satisfactory by the Board of Trustees, as amended and
supplemented from time to time in the discretion of the Board of Trustees.
The terms of the Agreement may be substantially similar to the Code of
Business Conduct and Ethics of the Trust or any similar code promulgated
by the Trust (the "Code of Business Conduct") or may differ from or
supplement the Code of Business Conduct.
(vi) Determinations required or permitted to be made under this Section
8.12 by the Board of Trustees may be delegated by the Board of Trustees
to a Committee, subject to applicable law.
8.13 No Shareholder Actions by Written Consent. Shareholders shall
not be authorized or permitted to take any action required or permitted
to be taken at a meeting of Shareholders by written consent, and may
take such action only at Shareholders meeting of the Trust.
8.14 Voting by Ballot. Voting on any question or in any election may
be voice vote unless the chairperson of the meeting or any Shareholder
shall demand that voting be by ballot.
8.15 Proposals of Business Which Are Not Proper Matters For Action
By Shareholders. Notwithstanding anything in these Bylaws to the contrary,
subject to the 1940 Act and any other applicable law, any Shareholder
proposal for business the subject matter or effect of which would be
within the exclusive purview of the Board of Trustees or would reasonably
likely, if considered by the Shareholders or approved or implemented by
the Trust, result in an impairment of the limited liability status for the
Trust's Shareholders, shall be deemed not to be a matter upon which the
Shareholders are entitled to vote. The Board of Trustees in its discretion
shall be entitled to determine whether a Shareholder proposal for business
is not a matter upon which the Shareholders are entitled to vote pursuant
to this Section 8.15, and its decision shall be final and binding unless
determined by a court of competent jurisdiction to have been made in bad
faith.
ARTICLE IX
MISCELLANEOUS
9.1 Amendment of Bylaws. Except for any change for which these Bylaws
requires approval by more than a majority vote of the Trustees, these Bylaws
may be amended, changed, altered or repealed, in whole or part, only by
resolution of the Board of Trustees at any meeting of the Board of Trustees
at which a quorum is present, or by a written consent signed by a majority
of the Trustees then in office.
9.2 Waiver of Notice. Whenever any notice is required to be given
pursuant to the Declaration of Trust, these Bylaws, the 1940 Act or any
other applicable law, a waiver thereof in writing, signed by the person or
persons entitled to such notice, or a waiver by electronic transmission by
the person or persons entitled to such notice, whether before or after the
time stated therein, shall be deemed equivalent to the giving of such notice.
Neither the business to be transacted at nor the purpose of any meeting need
be set forth in the waiver of notice or waiver by electronic transmission,
unless specifically required by statute. The attendance of any person at
any meeting shall constitute a waiver of notice of such meeting, except
where such person attends a meeting for the express purpose of objecting to
the transaction of any business on the ground that the meeting is not
lawfully called or convened.
9.3 Ratification. The Board of Trustees or the Shareholders may ratify
and make binding on the Trust any action or inaction by the Trust or its
officers to the extent that the Board of Trustees or the Shareholders could
have originally authorized the matter. Moreover, any action or inaction
questioned in any Shareholder's derivative proceeding or any other
proceeding on the ground of lack of authority, defective or irregular
execution, adverse interest of a Trustee, officer or Shareholder,
non-disclosure, miscomputation, the application of improper principles or
practices of accounting, or otherwise, may be ratified, before or after
judgment, by the Board of Trustees or by the Shareholders and, if so ratified,
shall have the same force and effect as if the questioned action or inaction
had been originally duly authorized, and such ratification shall be binding
upon the Trust and its Shareholders and shall constitute a bar to any claim or
execution of any judgment in respect of such questioned action or inaction.
9.4 Ambiguity. In the case of an ambiguity in the application of any
provision of these Bylaws or any definition contained in these Bylaws, the
Board of Trustees shall have the sole power to determine the application of
such provisions with respect to any situation based on the facts known to it
and such determination shall be final and binding unless determined by a
court of competent jurisdiction to have been made in bad faith.
9.5 Construction. If any provision of these Bylaws is determined to be
unlawful by a court or regulatory body of competent jurisdiction, the
remainder of these Bylaws shall remain in full force and effect and the
offending provision shall be construed to achieve the purpose of the
offending provision to the extent legally possible. The re-construction
of an unlawful provision shall be made by the Board of Trustees, or, in the
absence of action by the Board of Trustees, by the court or regulatory body
which determined the provision to be unlawful. These Bylaws shall be subject
to and construed accordance with the 1940 Act. In the event of a conflict
between any provision of these Bylaws and the 1940 Act, such provision shall
be construed to achieve the purpose of the provision to the extent legally
possible under the 1940 Act.
9.6 Inspection of Bylaws. The Trustees shall keep at the principal
office for the transaction of business of the Trust the original or a copy
of the Bylaws as amended or otherwise altered to date, certified by the
Secretary, which shall be open to inspection by the Shareholders at all
reasonable times during office hours.
