Provisions of the Agreement and Declaration of Trust of BlackRock Global Opportunities Equity Trust defining the rights of holders of Shares BLACKROCK GLOBAL OPPORTUNITIES EQUITY TRUST AGREEMENT AND DECLARATION OF TRUST Dated as of March 9, 2005...
Exhibit
5(a)
Provisions
of the Agreement and Declaration of Trust of
defining
the rights of holders of Shares
Dated
as of March 9, 2005
ARTICLE
II
Trustees
…
2.3 Resignation
and Removal. Any of the Trustees may resign their trust (without need for prior
or subsequent accounting) by an instrument in writing signed by such Trustee and
delivered or mailed to the Trustees or the Chairman, if any, the President or
the Secretary and such resignation shall be effective upon such delivery, or at
a later date according to the terms of the instrument. Any of the Trustees 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) for cause
only, and not without cause, and only by action taken by a majority of the
remaining Trustees followed by the holders of at least seventy-five percent
(75%) of the Shares then entitled to vote in an election of such Trustee. Upon
the resignation or removal of a Trustee, each such resigning or removed Trustee
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 such 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.
…
ARTICLE
VI
Shares of Beneficial
Interest
…
6.3 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 herein before described
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 or, subject to the right of the
Trustees to charge certain expenses directly to Shareholders, as provided in the
last sentence of Section 3.8, suffer an assessment of
1
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 6.3, in Section 11.4 or as specified by the
Trustees when creating the Shares, as in preferred shares).
6.4 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.
6.5 Issuance
of Shares. The Trustees, in their discretion, may from time to time without vote
of the Shareholders issue Shares including preferred shares that may have been
established pursuant to Section 6.2, in addition to the then issued and
outstanding Shares and Shares held in the treasury, 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 into a greater or lesser
number without thereby changing the proportionate beneficial interest in such
Shares. Issuances and redemptions of Shares may be made in whole Shares and/or
l/l,000ths of a Share or multiples thereof as the Trustees may
determine.
6.6 Register
of Shares. A register shall be kept at the offices of 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 or series of
Shares. Each such register shall be conclusive as to who are the holders of the
Shares of the applicable class or series of Shares 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.
...
2
6.8 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 (including compliance with
any securities laws and contractual restrictions) 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.
6.9 Notices.
Any and all notices to which any Shareholder hereunder may be entitled and any
and all communications shall be deemed duly served or given if mailed, postage
prepaid, addressed to any Shareholder of record at his last known address as
recorded on the applicable register of the Trust.
…
ARTICLE
VIII
Redemption
8.1 Redemptions.
The Shares of the Trust are not redeemable by the holders.
8.2 Disclosure
of Holding. The holders of Shares or other securities of the Trust shall upon
demand disclose to the Trustees in writing such information with respect to
direct and indirect ownership of Shares or other securities of the Trust as the
Trustees deem necessary to comply with the provisions of the Code, the 1940 or
other applicable laws or regulations, or to comply with the requirements of any
other taxing or regulatory authority.
ARTICLE
IX
Determination of Net Asset
Value Net Income and Distributions
…
9.2 Distributions
to Shareholders. (a) The Trustees shall from time to time distribute ratably
among the Shareholders of any class of Shares, or any series of any such class,
in accordance with the number of outstanding full and fractional Shares of such
class or any
3
series
of such class, such proportion 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 accordance with this Declaration. Any such
distribution may be made in cash or property (including without limitation any
type of obligations of the Trust or any assets thereof) or Shares of any class
or series or any combination thereof, and the Trustees may distribute ratably
among the Shareholders of any class of shares or series of any such class, in
accordance with the number of outstanding full and fractional Shares of such
class or any series of such class, additional Shares of any class or series in
such manner, at such times, and on such terms as the Trustees may deem proper or
as may otherwise be determined in accordance with this Declaration.
(b)
Distributions pursuant to this Section 9.2 may be among the Shareholders of
record of the applicable class or series of Shares at the time of declaring a
distribution or among the Shareholders of record at such later date as the
Trustees shall determine and specify.
…
ARTICLE
X
Shareholders
10.1 Meetings
of Shareholders. The Trust shall hold annual meetings of the Shareholders
(provided that the Trust's initial annual meeting of Shareholders may occur up
to one year after the completion of its initial fiscal year). A special meeting
of Shareholders may be called at any time by a majority of the Trustees or the
President and shall be called by any Trustee for any proper purpose upon written
request of Shareholders of the Trust holding in the aggregate not less than 51%
of the outstanding Shares of the Trust or class or series of Shares having
voting rights on the matter, such request specifying the purpose or purposes for
which such meeting is to be called. Any shareholder meeting, including a Special
Meeting, shall be held within or without the State of Delaware on such day and
at such time as the Trustees shall designate.
10.2 Voting.
Shareholders shall have no power to vote on any matter except matters on which a
vote of Shareholders is required by applicable law, this Declaration or
resolution of the Trustees. This Declaration expressly provides that no matter
for which voting is required by the Statutory Trust Act in the absence of the
contrary provision in the Declaration shall require any vote. Except as
otherwise provided herein, any matter required to be submitted to Shareholders
and affecting one or more classes or series of Shares shall require approval by
the required vote of all the affected classes and series of Shares voting
together as a single class; provided, however, that as to any matter with
respect to which a separate vote of any class or series of Shares is required by
the 1940 Act, such requirement as to a separate vote by that class or series of
Shares shall apply in addition to a vote of all the affected classes and series
voting together as a single class. Shareholders of a particular class or series
of Shares shall not be entitled to vote on any matter that affects only one or
more other classes or series of Shares. There shall be no cumulative voting in
the election or removal of Trustees.
4
10.3 Notice
of Meeting 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 and not more than 90 days before the meeting or
otherwise in compliance with applicable law. Only the business stated in the
notice of the meeting shall be considered at such meeting. Any adjourned meeting
may be held as adjourned one or more times without further notice not later than
120 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 90 nor less than 10
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.
10.4 Quorum
and Required Vote. (a) The holders of a majority of the Shares entitled to vote
on any matter at a meeting present in person or by proxy shall constitute a
quorum at such meeting of the Shareholders for purposes of conducting business
on such matter. The absence from any meeting, in person or by proxy, of a quorum
of Shareholders for action upon any given matter shall not prevent action at
such meeting upon any other matter or matters which may properly come before the
meeting, if there shall be present thereat, in person or by proxy, a quorum of
Shareholders in respect of such other matters.
(b)
Subject to any provision of applicable law, this Declaration or a resolution of
the Trustees specifying a greater or a lesser vote requirement for the
transaction of any item of business at any meeting of Shareholders, (i) the
affirmative vote of a majority of the Shares present in person or represented by
proxy and entitled to vote on the subject matter shall be the act of the
Shareholders with respect to such matter, and (ii) where a separate vote of one
or more classes or series of Shares is required on any matter, the affirmative
vote of a majority of the Shares of such class or series of Shares present in
person or represented by proxy at the meeting shall be the act of the
Shareholders of such class or series with respect to such matter.
10.5 Proxies,
etc. At any meeting of Shareholders, any holder of Shares entitled to vote
thereat may vote by properly executed 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. No proxy shall be valid after the expiration of 11 months from the
date thereof, unless otherwise provided in the proxy. Only Shareholders of
record shall be entitled to vote. Each full Share shall be entitled to one vote
and fractional Shares shall be entitled to a vote of such fraction. 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
executed by or on behalf of a Shareholder 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
5
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.
10.6 Reports.
The Trustees shall cause to be prepared at least annually and more frequently to
the extent and in the form required by law, regulation or any exchange on which
Trust Shares are listed a report of operations containing a balance sheet and
statement of income and undistributed income of the Trust prepared in conformity
with generally accepted accounting principles and an opinion of an independent
public accountant on such financial statements. Copies of such reports shall be
mailed to all Shareholders of record within the time required by the 1940 Act,
and in any event within a reasonable period preceding the meeting of
Shareholders. The Trustees shall, in addition, furnish to the Shareholders at
least semi-annually to the extent required by law, interim reports containing an
unaudited balance sheet of the Trust as of the end of such period and an
unaudited statement of income and surplus for the period from the beginning of
the current fiscal year to the end of such period.
10.7 Inspection
of Records. The records of the Trust shall be open to inspection by Shareholders
to the same extent as is permitted shareholders of a corporation formed under
the Delaware General Corporation Law.
10.8 Shareholder
Action by Written Consent. Any action which may be taken by Shareholders by vote
may be taken without a meeting if the holders entitled to vote thereon of the
proportion of Shares required for approval of such action at a meeting of
Shareholders pursuant to Section 10.4 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
XI
Duration; Termination of
Trust; Amendment; Mergers, Etc.
11.1 Duration.
Subject to possible termination in accordance with the provisions of Section
11.2 hereof, the Trust created hereby shall have perpetual
existence.
11.2 Termination.
(a) The Trust may be dissolved, only upon approval of not less than 80% of the
Trustees. 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, merge where the Trust is not the survivor, transfer or
6
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 by Shareholders with the same vote as required to open-end the
Trust.
(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.
11.3 Amendment
Procedure. (a) Except as provided in subsection (b) of this Section 11.3, this
Declaration may be amended, after a majority of the Trustees have approved a
resolution therefor, by the affirmative vote required by Section 10.4 of this
Declaration. The Trustees also may amend this Declaration without any vote of
Shareholders of any class or series to divide the Shares of the Trust into one
or more classes or additional classes, or one or more series of any such class
or classes, to determine the rights, powers, preferences, limitations and
restrictions of any class or series of Shares, to change the name of the Trust
or any class or series of Shares, to make any change that does not adversely
affect the relative rights or preferences of any Shareholder, as they may deem
necessary, or to conform this Declaration to the requirements of the 1940 Act or
any other applicable federal laws or regulations including pursuant to Section
6.2 or the requirements of the regulated investment company provisions of the
Code, but the Trustees shall not be liable for failing to do so.
(b)
No amendment may be made to Section 2.1, Section 2.2, Section 2.3, Section 3.9,
Section 5.1, Section 5.2, Section 11.2(a), this Section 11.3, Section 11.4,
Section 11.6 or Section 11.7 of this Declaration and no amendment may be made to
this Declaration which would change any rights with respect to any Shares of the
Trust by reducing the amount payable thereon upon liquidation of the Trust or by
diminishing or eliminating any voting rights pertaining thereto (except that
this provision shall not limit the ability of the Trustees to authorize, and to
cause the Trust to issue, other securities pursuant to Section 6.2), except
after a majority of the Trustees have approved a resolution therefor, by the
affirmative vote of the holders of not less than seventy-five percent (75%) of
the Shares of each affected class or series outstanding, voting as separate
classes or series, unless such amendment has been approved by 80% of the
Trustees, in which case approval by a Majority Shareholder Vote shall be
required.
7
Nothing
contained in this Declaration shall permit the amendment of this Declaration to
impair the exemption from personal liability of the Shareholders, Trustees,
officers, employees and agents of the Trust or to permit assessments upon
Shareholders.
(c)
An amendment duly adopted by the requisite vote of the Board of Trustees and, if
required, the 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 in recordable form
signed by a majority of the Trustees setting forth an amendment and reciting
that it was duly adopted by the Trustees and, if required, the Shareholders as
aforesaid, or a copy of the Declaration, as amended, in recordable form, 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 Board.
Notwithstanding
any other provision hereof, until such time as a Registration Statement under
the Securities Act of 1933, as amended, covering the first public offering of
Shares of the Trust shall have become effective, 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.
11.4 Merger,
Consolidation and Sale of Assets. Except as provided in Section 11.7, 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, upon such terms and
conditions and for such consideration when and as authorized by two- thirds of
the Trustees and approved by a Majority Shareholder Vote and any such merger,
consolidation, sale, lease or exchange shall be determined for all purposes to
have been accomplished under and pursuant to the statutes of the State of
Delaware.
11.5 Subsidiaries.
Without approval by Shareholders, the Trustees may cause to be organized or
assist in organizing one or more corporations, trusts, partnerships,
associations or other organizations to take over all of the Trust Property or to
carry on any business in which the Trust shall directly or indirectly have any
interest, and to sell, convey and transfer all or a portion of the Trust
Property to any such corporation, trust, limited liability company, association
or organization in exchange for the shares or securities thereof, or otherwise,
and to lend money to, subscribe for the shares or securities of, and enter into
any contracts with any such corporation, trust, limited liability company,
partnership, association or organization, or any corporation, partnership,
trust, limited liability company, association or organization in which the Trust
holds or is about to acquire shares or any other interests.
11.6 Conversion.
Notwithstanding any other provisions of this Declaration or the By-Laws of the
Trust, a favorable vote of a majority of the Trustees then in office followed by
the favorable vote of the holders of not less than seventy-five percent (75%) of
the Shares of each affected class or series outstanding, voting as separate
classes or series, shall be required to approve, adopt or authorize an amendment
to this Declaration that makes the Shares a "redeemable security" as that term
is defined in the 1940 Act, unless such amendment has been approved by 80% of
the Trustees, in which case approval by a Majority Shareholder Vote shall
8
be
required. Upon the adoption of a proposal to convert the Trust from a
"closed-end company" to an "open-end company" as those terms are defined by the
1940 Act and the necessary amendments to this Declaration to permit such a
conversion 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. Such affirmative vote or consent shall be in
addition to the vote or consent of the holders of the Shares otherwise required
by law, or any agreement between the Trust and any national securities
exchange.
11.7 Certain
Transactions. (a) Notwithstanding any other provision of this Declaration and
subject to the exceptions provided in paragraph (d) of this Section, the types
of transactions described in paragraph (c) of this Section shall require the
affirmative vote or consent of a majority of the Trustees then in office
followed by the affirmative vote of the holders of not less than seventy-five
percent (75%) of the Shares of each affected class or series outstanding, voting
as separate classes or series, 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 law or by the terms of any class or series of
preferred stock, whether now or hereafter authorized, or any agreement between
the Trust and any national securities exchange.
(b)
The term "Principal Shareholder" shall mean any corporation, Person or other
entity which is the beneficial owner, directly or indirectly, of five percent
(5%) or more of the outstanding Shares of all outstanding classes or series and
shall include any affiliate or associate, as such terms are defined in clause
(ii) below, of a Principal Shareholder. For the purposes of this Section, in
addition to the Shares which a corporation, Person or other entity beneficially
owns directly, (a) any corporation, Person or other entity 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 corporation, Person or
entity 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, 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).
9
(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 2% of the total assets of the Trust, 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 2% of the total assets
of the Trust, aggregating for the purposes of such computation all assets sold,
leased or exchanged in any series of similar transactions within a twelve-month
period).
(d)
The provisions of this Section shall not be applicable to (i) any of the
transactions described in paragraph (c) of this Section if 80% of the Trustees
shall by resolution have approved a memorandum of understanding with such
Principal Shareholder with respect to and substantially consistent with such
transaction, in which case approval by a Majority Shareholder Vote shall be the
only vote of Shareholders required by this Section, or (ii) any such transaction
with any entity of which a majority of the outstanding shares of all classes and
series of a stock normally entitled to vote in elections of directors is owned
of record or beneficially by the Trust and its subsidiaries.
(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 corporation, person or entity beneficially owns five percent (5%) or more
of the outstanding Shares of any class or series, (ii) a corporation, person or
entity 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 2% of the total assets of the Trust, and (iv) the
memorandum of understanding 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.
10
AMENDED
AND RESTATED
BYLAWS
ARTICLE
X
SHAREHOLDER
MEETINGS
Section
1. Chairman. The
Chairman, if any, shall act as chairman at all meetings of the
Shareholders. In the Chairman's absence, the Vice Chairman, if any,
shall act as chairman at the meeting. In the absence of the Chairman
and the Vice Chairman, the Director or Directors present at each meeting may
elect a temporary chairman for the meeting, who may be one of
themselves.
Section
2. Annual Meetings of
Shareholders. The
Fund's initial annual meeting of Shareholders, if any, may occur up to one year
after the completion of its initial fiscal year.
Section
3. Special Meetings of
Shareholders. A
special meeting of Shareholders may be called at any time by the Secretary upon
the request of a majority of the Directors or the President and shall also be
called by the Secretary for any proper purpose upon written request of
Shareholders of the Fund holding in the aggregate not less than fifty-one
percent (51%) of the outstanding Shares of the Fund or class or series of Shares
having voting rights on the matter.
Section
4. Place of
Meetings. Any
Shareholder meeting, including a Special Meeting, shall be held within or
without the state in which the Fund was formed on such day and at such time as
the Directors shall designate.
Section
5. Notice of
Meetings.
(a) Written
notice of all meetings of Shareholders, stating the time and place of the
meeting, shall be given by the Secretary by mail to each Shareholder of record
entitled to vote thereat at its registered address, mailed at least ten (10)
days and not more than sixty (60) days before the meeting or otherwise in
compliance with applicable law. Such notice will also specify the
means of remote communications, if any, by which Shareholders and proxyholders
may be deemed to be present in person and vote at such meeting. No
business (including without limitation nominations for the election of
directors) may be transacted at an annual or special meeting of Shareholders,
other than business that is either (i) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of Directors
(or any duly authorized committee thereof), (ii) otherwise properly brought
before the annual meeting by or at the direction of the Board of Directors (or
any duly authorized committee thereof) or (iii) in the case of an annual
meeting, otherwise properly brought before the meeting by any Shareholder of the
Fund, whether such proposal is included in the Fund's proxy statement or a proxy
statement prepared by one or more shareholders, (A) who is a Shareholder of
record on the date of the giving of the notice provided for in this Article I
Section 5 and on the record date for the determination of
Shareholders entitled to notice of and to vote at
11
such
annual meeting and (B) who complies with the notice procedures set forth in this
Article I Section 5 or, with respect to the election of Directors, set forth in
Section 2 of Article II.
(b) In
addition to any other applicable requirements, for business to be properly
brought before a meeting by a Shareholder, such Shareholder must have given
timely notice thereof in proper written form to the Secretary of the
Fund.
(i) To
be timely, a Shareholder's notice to the Secretary must be delivered to or
mailed and received at the principal executive offices of the Fund (A) in the
case of an annual meeting, not less than ninety (90) days nor more than one
hundred twenty (120) days prior to the anniversary date of the immediately
preceding annual meeting of Shareholders; provided, however, that in the event
that the annual meeting is called for a date that is not within thirty (30) days
before or after such anniversary date, notice by the Shareholder in order to be
timely must be so received not later than the close of business on the tenth
(10th) day following the day on which such notice of the date of the meeting was
mailed or such public disclosure of the date of the meeting was made, whichever
first occurs; and (B) in the case of a special meeting of Shareholders called
for the purpose of electing directors, not later than the close of business on
the fifth (5th) day
following the day on which notice of the date of the special meeting was mailed
or public disclosure of the date of the special meeting was made, whichever
first occurs.
(ii) Except
for notices regarding nominations for the election of directors, which notices
shall be prepared in accordance with Article II Section 2(c)(ii), to be in
proper written form, a Shareholder's notice to the Secretary must set forth as
to each matter such Shareholder proposes to bring before the meeting (A) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (B) the name and record
address of such Shareholder, (C) the class or series and number of shares of the
Fund which are owned beneficially or of record by such Shareholder, (D) a
description of all arrangements or understandings between such Shareholder and
any other person or persons (including their names) in connection with the
proposal of such business by such Shareholder and any material interest of such
Shareholder in such business and (E) a representation that such Shareholder
intends to appear in person or by proxy at the meeting to bring such business
before the meeting.
(iii) The
requirements set forth in this Article I Section 5(b) shall not be in effect for
purposes of the 2008 annual meeting of Shareholders, and the advance notice
requirements for shareholder proposals, if any, set forth in the bylaws in
effect prior to the effective date of these Bylaws shall instead be in effect
for such meeting.
(c) No
business shall be conducted at a meeting of Shareholders except business brought
before the annual meeting in accordance with the procedures set forth in this
Article I Section 5 or Article II Section 2, as the case may be; provided,
however, that, once business has been properly brought before the meeting in
accordance with such procedures, nothing in this Article I Section 5 shall be
deemed to preclude discussion by any Shareholder of any such
business. If the chairman of a meeting determines that business was
not properly
12
brought
before the meeting in accordance with the foregoing procedures, the chairman of
the meeting shall declare to the meeting that the business was not properly
brought before the meeting and such business shall not be
transacted.
(d) Whenever
written notice is required by law or the Charter to be given to any Shareholder,
such notice may be given by mail, addressed to such Shareholder at such
Shareholder's address as it appears on the records of the Fund, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail or with another reasonable
delivery service customarily used for business purposes.
Section
6. Conduct of
Meetings. The
Board of Directors of the Fund may adopt by resolution such rules and
regulations for the conduct of any meeting of the Shareholders as it shall deem
appropriate. Except to the extent inconsistent with such rules and
regulations as adopted by the Board of Directors, the chairman of any meeting of
the Shareholders shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
chairman, are appropriate for the proper conduct of the meeting. Such
rules, regulations or procedures, whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may include, without limitation, the
following: (a) the establishment of an agenda or order of business
for the meeting; (b) the determination of when the polls shall open and close
for any given matter to be voted on at the meeting; (c) rules and procedures for
maintaining order at the meeting and the safety of those present; (d)
limitations on attendance at or participation in the meeting to Shareholders of
record of the Fund, their duly authorized and constituted proxies or such other
persons as the chairman of the meeting shall determine; (e) restrictions on
entry to the meeting after the time fixed for the commencement thereof; and (f)
limitations on the time allotted to questions or comments by
participants.
Section
7. Adjournments. The
chairman of any meeting of the Shareholders may adjourn the meeting from time to
time to reconvene at the same or some other place, and notice need not be given
of any such adjourned meeting if the time and place, if any, thereof and the
means of remote communications, if any, by which Shareholders and proxyholders
may be deemed to be present in person and vote at such adjourned meeting are
announced at the meeting at which the adjournment is taken. At the
adjourned meeting, the Fund may transact any business which might have been
transacted at the original meeting. Any adjourned meeting may be held
as adjourned one or more times without further notice not later than one hundred
and twenty (120) days after the record date. If after the adjournment
a new record date is fixed for the adjourned meeting, notice of the adjourned
meeting in accordance with the requirements of Section 5 of this Article I shall
be given to each Shareholder of record entitled to vote at the meeting and each
other Shareholder entitled to notice of the meeting.
Section
8. Record Date.
(a) For
the purposes of determining the Shareholders who are entitled to vote at, or
otherwise entitled to notice of any meeting, the Directors may, without closing
the transfer books, fix a date not more than sixty (60) nor less than ten (10)
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. The record date shall not precede the date upon
13
which
the resolution fixing the record date is adopted by the Directors. If
no record date is fixed by the Directors and the stock transfer books are not
closed, the record date for determining Shareholders entitled to notice of or to
vote at a meeting of the Shareholders shall be at the later of (i) the close of
business on the day on which notice is mailed or (ii) the thirtieth (30th) day
before the meeting. A determination of Shareholders of record entitled to notice
of or to vote at a meeting of the Shareholders shall apply to any adjournment of
the meeting; provided, however, that the Directors may fix a new record date for
the adjourned meeting.
(b) In
order that the Fund may determine the Shareholders entitled to consent to
corporate action in writing without a meeting, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than ten (10) days after the date upon which
the resolution fixing the record date is adopted by the Directors. If
no record date has been fixed by the Directors, the record date for determining
Shareholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Directors is required by applicable law or
the Charter, shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the Fund by
delivery to its registered office in the state in which the Fund was formed, its
principal place of business, or an officer or agent of the Fund having custody
of the book in which proceedings of meetings of the Shareholders are
recorded. Delivery made to the Fund's registered office shall be by
hand or by certified or registered mail, return receipt requested. If
no record date has been fixed by the Directors and prior action by the Directors
is required by applicable law or the Charter, the record date for determining
Shareholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which the Directors
adopts the resolution taking such prior action.
Section
9. Voting.
(a) Shareholders
shall have no power to vote on any matter except matters on which a vote of
Shareholders is required by applicable law, the Charter or resolution of the
Directors. Except as otherwise provided herein, any matter required
to be submitted to Shareholders and affecting one or more classes or series of
Shares shall require approval by the required vote of all the affected classes
and series of Shares voting together as a single class; provided, however, that
as to any matter with respect to which a separate vote of any class or series of
Shares is required by the 1940 Act, such requirement as to a separate vote by
that class or series of Shares shall apply in addition to a vote of all the
affected classes and series voting together as a single
class. Shareholders of a particular class or series of Shares shall
not be entitled to vote on any matter that affects only one or more other
classes or series of Shares.
(b) Subject
to any provision of applicable law, the Charter, these Bylaws or a resolution of
the Directors specifying a greater or a lesser vote requirement for the
transaction of any item of business at any meeting of Shareholders, (i) the
affirmative vote of a majority of the Shares present in person or represented by
proxy and entitled to vote on the subject matter shall be the act of the
Shareholders with respect to any matter that properly comes before the meeting,
and (ii) where a separate vote of two or more classes or series of Shares is
required on any matter, the affirmative vote of a majority of the Shares of such
class or series of
14
Shares
present in person or represented by proxy at the meeting shall be the act of the
Shareholders of such class or series with respect to such matter.
(c) Only
Shareholders of record shall be entitled to vote. Each full Share
shall be entitled to one vote and fractional Shares shall be entitled to a vote
of such fraction. 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 be cast in accordance with applicable
law.
(d) There
shall be no cumulative voting in the election or removal of
Directors.
Section
10. Quorum. The
holders of a majority of the Shares entitled to vote on any matter at a meeting
present in person or by proxy shall constitute a quorum at such meeting of the
Shareholders for purposes of conducting business on such matter. The
absence from any meeting, in person or by proxy, of a quorum of Shareholders for
action upon any given matter shall not prevent action at such meeting upon any
other matter or matters which may properly come before the meeting, if there
shall be present thereat, in person or by proxy, a quorum of Shareholders in
respect of such other matters. A quorum, once established, shall not
be broken by the withdrawal of enough votes to leave less than a
quorum. If, however, such quorum shall not be present or represented
at any meeting of the Shareholders, the chairman of the meeting, shall have
power to adjourn the meeting from time to time, in the manner provided in
Section 7 of this Article I, until a quorum shall be present or
represented.
Section
11. Proxies.
(a) At
any meeting of Shareholders, any holder of Shares entitled to vote thereat may
vote by properly executed 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 Fund as the Directors or 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 Directors,
proxies may be solicited in the name of one or more Directors or one or more of
the officers or employees of the Fund. No proxy shall be valid after
the expiration of 11 months from the date thereof, unless otherwise provided in
the proxy. A proxy purporting to be executed by or on behalf of a
Shareholder 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, such person may vote by their guardian or
such other person appointed or having such control, and such vote may be given
in person or by proxy.
(b) Without
limiting the manner in which a Shareholder may authorize another person or
persons to act for such Shareholder as proxy, the following shall constitute a
valid means by which a Shareholder may grant such authority:
(i) A
Shareholder may execute a writing authorizing another person or persons to act
for such Shareholder as proxy. Execution may be accomplished
15
by
the Shareholder or such Shareholder's authorized officer, director, employee or
agent signing such writing or causing such person's signature to be affixed to
such writing by any reasonable means, including, but not limited to, by
facsimile or electronic signature.
(ii) A
Shareholder may authorize another person or persons to act for such Shareholder
as proxy by transmitting or authorizing the transmission of a telegram,
cablegram or other means of electronic or telephonic transmission to the person
who will be the holder of the proxy or to a proxy solicitation firm, proxy
support service organization or like agent duly authorized by the person who
will be the holder of the proxy to receive such transmission, provided that any
such telegram, cablegram or other means of electronic transmission must either
set forth or be submitted with information from which it can be determined that
the telegram, cablegram or other electronic transmission was authorized by the
Shareholder. If it is determined that such telegrams, cablegrams or
other electronic transmissions are valid, the inspectors of election or, if
there are no inspectors of election, such other persons making that
determination shall specify the information on which they relied.
(c) Any
copy, facsimile telecommunication or other reliable reproduction of the writing
or transmission authorizing another person or persons to act as proxy for a
Shareholder may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used; provided, however, that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission.
Section
12. Inspectors of
Election.
(a) In
advance of any meeting of Shareholders, the Directors may appoint inspectors of
election to act at the meeting or any adjournment thereof. If
inspectors of election are not so appointed, the person acting as Chairman of
any meeting of Shareholders may, and on the request of any Shareholder or
Shareholder proxy shall, appoint inspectors of election of the
meeting. The number of inspectors of election shall be either one or
three. If appointed at the meeting on the request of one or more
Shareholders or proxies, a majority of Shares present shall determine whether
one or three inspectors of election are to be appointed, but failure to allow
such determination by the Shareholders shall not affect the validity of the
appointment of inspectors of election. In case any person appointed
as inspector of election fails to appear or fails or refuses to act, the vacancy
may be filled by appointment made by the Directors in advance of the convening
of the meeting or at the meeting by the person acting as
chairman. Unless otherwise required by applicable law, inspectors may
be officers, employees or agents of the Fund. Each inspector, before
entering upon the discharge of the duties of inspector, shall take and sign an
oath faithfully to execute the duties of inspector with strict impartiality and
according to the best of such inspector's ability.
(b) The
inspectors of election shall have the duties prescribed by law and shall
determine the number of Shares outstanding, the Shares represented at the
meeting, the existence of a quorum, the authenticity, validity and effect of
proxies, shall receive votes, ballots or consents, shall hear and determine all
challenges and questions in any way arising in connection with the right to
vote, shall count and tabulate all votes or consents, determine the
16
results,
and do such other acts as may be proper to conduct the election or vote with
fairness to all Shareholders. If there are three inspectors of
election, the decision, act or certificate of a majority is effective in all
respects as the decision, act or certificate of all. On request of
the chairman, if any, of the meeting, the inspectors of election shall make a
report in writing of any challenge or question or matter determined by them and
shall execute a certificate of any facts found by them.
Section
13. Records at Shareholder
Meetings. At each
meeting of the Shareholders, there shall be made available for inspection at a
convenient time and place during normal business hours, if requested by
Shareholders, a list of the Shareholders of the Fund, as of the record date of
the meeting or the date of closing of transfer books, as the case may
be. Such list of Shareholders shall contain the name and the address
of each Shareholder in alphabetical order and the number of Shares owned by such
Shareholder. Shareholders shall have such other rights and procedures
of inspection of the books and records of the Fund as are granted to
shareholders of corporations in the state in which the Fund was
formed.
Section
14. Shareholder Action by
Written Consent.
(a) Any
action which may be taken by Shareholders by vote may be taken without a meeting
if the holders entitled to vote thereon, in the proportion of Shares required
for approval of such action at a meeting of Shareholders, 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.
(b) Any
such consent shall be delivered to the Fund by delivery to its registered office
in the state in which the Fund was formed, its principal place of business, or
an officer or agent of the Fund having custody of the book in which proceedings
of meetings of the Shareholders are recorded. Delivery shall be in
paper form, by hand, by certified or registered mail, return receipt requested,
or by electronic transmission. Every written consent shall bear the
date of signature of each Shareholder who signs the consent and no written
consent shall be effective to take the corporate action referred to therein
unless, within sixty (60) days of the earliest dated consent delivered in the
manner required by this Article I Section 14 to the Fund, written consents
signed by a sufficient number of holders to take action are delivered to the
Fund by delivery to its registered office in the state in which the Fund was
formed, its principal place of business, or an officer or agent of the Fund
having custody of the book in which proceedings of meetings of the Shareholders
are recorded. A telegram, cablegram or other electronic transmission
consenting to an action to be taken and transmitted by a Shareholder or
proxyholder, or by a person or persons authorized to act for a Shareholder or
proxyholder, shall be deemed to be written, signed and dated for the purposes of
this Article I Section 14, provided that any such telegram, cablegram or other
electronic transmission sets forth or is delivered with information from which
the Fund can determine (i) that the telegram, cablegram or other electronic
transmission was transmitted by the Shareholder or proxyholder or by a person or
persons authorized to act for the Shareholder or proxyholder and (ii) the date
on which such Shareholder or proxyholder or authorized person or persons
transmitted such telegram, cablegram or electronic transmission. The
date on which such telegram, cablegram or electronic transmission is transmitted
shall be deemed to be the date on which such consent was signed. No
consent given by telegram, cablegram or other electronic transmission shall be
deemed to have been
17
delivered
until such consent is reproduced in paper form and until such paper form shall
be delivered to the Fund by delivery to its registered office in the state in
which the Fund was formed, its principal place of business or an officer or
agent of the Fund having custody of the book in which proceedings of meetings of
the Shareholders are recorded. Such delivery shall be made by hand or
by certified or registered mail, return receipt requested. Any copy,
facsimile or other reliable reproduction of a consent in writing may be
substituted or used in lieu of the original writing for any and all purposes for
which the original writing could be used, provided that such copy, facsimile or
other reproduction shall be a complete reproduction of the entire original
writing.
(c) Within
ten (10) days after the effective date of the action, notice of the taking of
the action without a meeting by less than unanimous written consent shall be
given to those Shareholders who have not consented in writing and who, if the
action had been taken at a meeting, would have been entitled to notice of the
meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of holders to take the action were
delivered to the Fund as provided above in this Article I Section
14.
ARTICLE
II
DIRECTORS
…
Section
3. Resignation and
Removal. Any of
the Directors may resign (without need for prior or subsequent accounting) by an
instrument in writing signed by such Director and delivered or mailed to the
Directors, the Chairman, if any, the President, or the Secretary and such
resignation shall be effective upon such delivery, or at a later date according
to the terms of the instrument. Any of the Directors may be removed,
provided the aggregate number of Directors after such removal shall not be less
than the minimum number set forth in the Charter, only by the proportion of
votes of the Shareholders or Directors, as applicable, that are set forth in the
Charter as the required proportion of votes for removal of Director, and with or
without cause as may be permitted by the Charter or as required by applicable
law. Upon the resignation or removal of a Director, each such
resigning or removed Director shall execute and deliver to the Fund such
documents as may be required by applicable law or the Charter or as may be
requested by the remaining Directors as being in the best interests of the Fund
and the Shareholders. Upon the incapacity or death of any Director,
such Director's legal representative shall execute and deliver to the
Fund on such Director's behalf such documents as the remaining Directors shall
require as provided in the preceding sentence.
…
ARTICLE
V
STOCK
Section
1. Shares of Stock. Except
as otherwise provided in a resolution approved by the Board of Directors, all
Shares of the Fund shall be uncertificated Shares.
18
Section
2. Transfer Agents, Registrars
and the Like. The
Directors shall have authority to employ and compensate such transfer agents and
registrars with respect to the Shares of the Fund as the Directors shall deem
necessary or desirable. The transfer agent or transfer agents may
keep the applicable register and record therein the original issues and
transfers, if any, of the Shares. Any such transfer agents and/or
registrars shall perform the duties usually performed by transfer agents and
registrars of certificates of stock in a corporation, as modified by the
Directors. In addition, the Directors shall have power to employ and
compensate such dividend disbursing agents, warrant agents and agents for the
reinvestment of dividends as they shall deem necessary or
desirable. Any of such agents shall have such power and authority as
is delegated to any of them by the Directors.
Section
3. Transfer of
Shares. Shares
of the Fund shall be transferable in the manner prescribed by the Charter, these
Bylaws and applicable law. Transfers of Shares shall be made on the
books of the Fund upon receipt of proper transfer instructions from the
registered holder of the Shares or by such person's attorney lawfully
constituted in writing, and upon payment of all necessary transfer taxes and
compliance with appropriate procedures for transferring Shares in uncertificated
form; provided, however, that such surrender and endorsement, compliance or
payment of taxes shall not be required in any case in which the officers of the
Fund shall determine to waive such requirement. If any certificated
Shares are issued as provided in Section 1 of this Article V, they may be
transferred only by the person named in the certificate or by such person's
attorney lawfully constituted in writing and upon the surrender of the
certificate therefor, properly endorsed for transfer and payment of all
necessary transfer taxes. With respect to certificated Shares, every
certificate exchanged, returned or surrendered to the Fund shall be marked
"Cancelled," with the date of cancellation, by the Secretary of the Fund or the
transfer agent thereof. No transfer of Shares shall be valid as
against the Fund for any purpose until it shall have been entered in the Share
records of the Fund by an entry showing from and to whom
transferred.
Section
4. Registered
Shareholders. The Fund
may deem and treat the holder of record of any Shares as the absolute owner
thereof for all purposes and shall not be required to take any notice of any
right or claim of right of any other person.
Section
5. Register of
Shares. A
register shall be kept at the offices of the Fund or any transfer agent duly
appointed by the Directors under the direction of the Directors 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 or series of Shares. Each such register shall be
conclusive as to who are the holders of the Shares of the applicable class or
series of Shares 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 such Person as herein provided, until
such Person has given their address to a transfer agent or such other officer or
agent of the Directors as shall keep the register for entry
thereon.
Section
6. Disclosure of
Holdings. The
holders of Shares or other securities of the Fund shall upon demand disclose to
the Directors in writing such information with respect to direct and indirect
ownership of Shares or other securities of the Fund as the Directors deem
19
necessary
to comply with the provisions of the Code, the 1940 Act or other applicable laws
or regulations, or to comply with the requirements of any other taxing or
regulatory authority.
Section
7. Signatures. Any or
all of the signatures on a certificate may be a facsimile. In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Fund with the same effect as if such person were such officer,
transfer agent or registrar at the date of issue.
Section
8. Lost
Certificates. The
Board of Directors may direct a new certificate to be issued in place of any
certificate theretofore issued by the Fund alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate, or such owner's legal
representative, to advertise the same in such manner as the Board of Directors
shall require and/or to give the Fund a bond in such sum as it may direct as
indemnity against any claim that may be made against the Fund on account of the
alleged loss, theft or destruction of such certificate or the issuance of such
new certificate.
ARTICLE
VII
AMENDMENT OF
BYLAWS
Section
1. Amendment and Repeal of
Bylaws. The
Directors shall have the exclusive power to amend or repeal the Bylaws or adopt
new Bylaws at any time. Except as may be required by applicable law
or the Charter, action by the Directors with respect to the Bylaws shall be
taken by an affirmative vote of a majority of the Directors. The
Directors shall in no event adopt Bylaws which are in conflict with the Charter,
and any apparent inconsistency shall be construed in favor of the related
provisions in the Charter.
20
