BY-LAWS OF PERSIMMON GROWTH PARTNERS INVESTOR FUND
BY-LAWS OF PERSIMMON GROWTH PARTNERS
INVESTOR FUND
ARTICLE I
Agreement and Declaration of
Trust
SECTION 1. AGREEMENT AND DECLARATION OF
TRUST. These By-Laws shall be subject to the Agreement and Declaration of Trust,
as from time to time amended, supplemented or restated (the "Declaration of
Trust") of Persimmon Growth Partners Investor Fund (the
"Trust").
SECTION 2. DEFINITIONS. Unless otherwise
defined herein, the terms used herein have the respective meanings given them in
the Declaration of Trust.
ARTICLE II
Offices
SECTION 1. PRINCIPAL OFFICE. The
principal office of the Trust shall be located in the township of Blue Xxxx,
Commonwealth of Pennsylvania or such other location as the Trustees may from
time to time determine.
SECTION 2. REGISTERED OFFICE AND OTHER
OFFICES. The registered office of the Trust shall be located in the City of
Wilmington, State of Delaware or such other location within the State of
Delaware as the Trustees may from time to time determine. The Trust may
establish and maintain such other offices and places of business as the Trustees
may from time to time determine.
ARTICLE III
Shareholders
SECTION 1. MEETINGS. Meetings of the
Shareholders shall be held at the principal executive offices of the Trust or at
such other place within the United States of America as the Trustees shall
designate. Meetings of the Shareholders shall be called by the
Secretary whenever (i) ordered by the Trustees or (ii) for the purpose of voting
on the removal of any Trustee, requested in writing by Shareholders holding at
least ten percent (10%) of the outstanding Shares entitled to vote. If the
Secretary, when so ordered or requested, refuses or neglects for more than 10
days to call such meetings, the Trustees or the Shareholders so requesting, may,
in the name of the Secretary, call the meeting by giving notice thereof in the
manner required when notice is given by the Secretary.
SECTION 2. NOTICE OF MEETINGS. Notice of
all meetings of the Shareholders, stating the time, place and purposes of the
meeting, shall be given by the Secretary by delivering or mailing, postage
prepaid, to each Shareholder at his or her address as recorded on the register
of the Trust at least (10) days and not more than ninety (90) days before the
meeting. Any adjourned meeting may be held as adjourned without further notice.
No notice need be given to any Shareholder who shall have failed to inform the
Trust of his or her current address or if a written waiver of notice, executed
before or after the meeting by the Shareholder or his or her authorized
attorney, is filed with the records of the meeting.
SECTION 3. RECORD DATE FOR MEETINGS. For
the purpose of determining the Shareholders who are entitled to notice of and to
vote at any meeting, the Trustees may from time to time close the transfer books
for such period, not exceeding thirty (30) days, as the Trustees may determine;
or without closing the transfer books the Trustees may fix a date not more than
ninety (90) days prior to the date of any meeting of Shareholders as a record
date for the determination of the persons to be treated as Shareholders of
record for such purpose.
SECTION 4. PROXIES. At any meeting of
Shareholders, any holder of Shares entitled to vote thereat may vote by proxy,
provided that no proxy shall be voted at any meeting unless it shall have been
placed on file with the Secretary, or with such other officer or agent of the
Trust as the Secretary may direct, for verification prior to the time at which
such vote shall be taken; provided, however, that notwithstanding any other
provision of this Section 4 to the contrary, the Trustees may at any time adopt
one or more electronic, telecommunication or other alternatives to execution of
a written instrument that will enable holders of Shares entitled to vote at any
meeting to appoint a proxy to vote such holders' Shares at such meeting. Proxies
may be solicited in the name of one or more Trustees or one or more of the
officers of the Trust. Only Shareholders of record shall be entitled to vote.
Each whole Share shall be entitled to one vote as to any matter on which it is
entitled by the Declaration of Trust to vote, and each fractional Share shall be
entitled to a proportionate fractional vote. 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 the legal control of any other person as regards the charge or
management of such Share, he or she may vote by his or her guardian or such
other person appointed or having such control, and such vote may be given in
person or by proxy. At all meetings of the Shareholders, unless the voting is
conducted by inspectors, all questions relating to the qualifications of voters,
the validity of proxies, and the acceptance or rejection of votes shall be
decided by the chairman of the meeting. Except as otherwise provided herein or
in the Declaration of Trust, all matters relating to the giving, voting or
validity of proxies shall be governed by the General Corporation Law of the
State of Delaware relating to proxies, and judicial interpretations thereunder,
as if the Trust were a Delaware corporation and the Shareholders were
shareholders of a Delaware corporation.
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SECTION 5. INSPECTION OF BOOKS. The
Trustees shall from time to time determine whether and to what extent, and at
what times and places, and under what conditions and regulations the accounts
and books of the Trust or any of them shall be open to the inspection of the
Shareholders; and no Shareholder shall have any right to inspect any account or
book or document of the Trust except as conferred by law or otherwise by the
Trustees or by resolution of the Shareholders.
SECTION 6. ACTION WITHOUT MEETING. Any
action that may be taken at any meeting of Shareholders may be taken without a
meeting and without prior notice if a consent in writing setting forth the
action so taken is signed by the holders of outstanding Shares having not less
than the minimum number of votes that would be necessary to authorize or take
that action at a meeting at which all Shares entitled to vote on that action
were present and voted. All such consents shall be filed with the records of
Shareholder meetings. Such consents shall be treated for all purposes as a vote
taken at a meeting of Shareholders.
SECTION 7. APPLICATION OF THIS ARTICLE.
Meetings of Shareholders shall consist of all Shareholders, as determined
pursuant to the Declaration of Trust, and this Article shall be construed
accordingly.
ARTICLE IV
Trustees
SECTION 1. MEETINGS OF THE TRUSTEES. The
Trustees may in their discretion provide for regular or stated meetings of the
Trustees. Notice of regular or stated meetings need not be given, except as may
be required by applicable law. Meetings of the Trustees other than regular or
stated meetings shall be held whenever called by the Chairman, the President, or
by any two of the Trustees, at the time being in office. Notice of the time and
place of each meeting other than regular or stated meetings shall be given by
the Secretary or an Assistant Secretary or by the officer or Trustees calling
the meeting and shall be delivered or mailed, postage prepaid, to each Trustee
at least two days before the meeting, or shall be telegraphed, cabled, wired, or
delivered by equivalent electronic means, to each Trustee at his or her business
address, or personally delivered to him or her, at least one day before the
meeting. Such notice may, however, be waived by any Trustee. Notice of a meeting
need not be given to any Trustee if a written waiver of notice, executed by him
or her before the meeting, is filed with the records of the meeting, or to any
Trustee who attends the meeting without protesting prior thereto or at its
commencement the lack of notice to him or her. A notice or waiver of notice need
not specify the purpose of any meeting, except as may be required by applicable
law. The Trustees may meet by means of a telephone conference circuit or similar
communications equipment by means of which all persons participating in the
meeting are connected, which meeting shall be deemed to have been held at a
place designated by the Trustees at the meeting. Participation in a telephone
conference meeting shall constitute presence in person at such meeting. Any
action required or permitted to be taken at any meeting of the Trustees may be
taken by the Trustees without a meeting if a majority of the Trustees then in
office (or such higher number of Trustees as would be required to act on the
matter under the Declaration of Trust, these By-Laws or applicable law if a
meeting were held) consent to the action in writing and the written consents are
filed with the records of the Trustees' meetings. Such consents shall be treated
for all purposes as a vote taken at a meeting of the Trustees. Notwithstanding
the foregoing, all actions of the Trustees shall be taken in compliance with the
provisions of the Investment Company Act of 1940, as
amended.
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SECTION 2. QUORUM AND MANNER OF ACTING.
A majority of the Trustees then in office shall constitute a quorum for the
transaction of business. If at any meeting of the Trustees there shall be less
than a quorum present, a majority of those present may adjourn the meeting from
time to time until a quorum shall be obtained. Notice of an adjourned meeting
need not be given. The act of the majority of the Trustees present at any
meeting at which there is a quorum shall be the act of the Trustees, except as
may be otherwise specifically provided by law or by the Declaration of Trust or
by these By-Laws.
ARTICLE V
Committees
SECTION 1. NOMINATING, AUDIT AND OTHER
COMMITTEES. The Trustees by vote of a majority of all the Trustees may elect
from their own number, Committees from time to time, the number composing such
Committees, the powers conferred upon the same and the terms of membership on
such Committees to be determined by the Trustees. Such committees shall include
a Nominating Committee, an Audit Committee, and a Fair Value Pricing Committee. The Trustees may designate a chairman
of any Committee. In the absence of such designation the Committee may elect its
own chairman.
SECTION 2. MEETINGS, QUORUM AND MANNER
OF ACTING. The Trustees may (1) provide for stated meetings of any Committees,
(2) specify the manner of calling and notice required for a special meeting of
any Committee, (3) specify the number of members of a Committee required to
constitute a quorum.
ARTICLE VI
Officers
SECTION 1. GENERAL PROVISIONS. The
officers of the Trust shall be a President, and a Secretary, who shall be
elected by the Trustees. The Trustees may elect or appoint such other officers
or agents as the business of the Trust may require, including a Chairman of the
Board ("Chairman"), Vice Chairman, one or more Vice Presidents, one or more
Assistant Secretaries, a Treasurer, and one or more Assistant Treasurers. The
Trustees may delegate to any officer or Committee the power to appoint any
subordinate officers or agents.
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SECTION 2. TERM OF OFFICE AND
QUALIFICATIONS. Except as otherwise provided by law, the Declaration of Trust,
or these By-Laws, the President, the Treasurer and the Secretary, and all other
officers shall hold office at the pleasure of the Trustees. The Secretary and
Treasurer may be the same person. A Vice President and the Treasurer or a Vice
President and the Secretary may be the same person, but the offices of Vice
President, Secretary and Treasurer shall not be held by the same person. The
President shall hold no other office, but may be a Trustee of the Trust. Except
as above provided, any two offices may be held by the same person. The Chairman,
if such an officer is elected, shall be a Trustee and may, but need not be, a
Shareholder. Any other officer may be, but none need be, a Trustee or
Shareholder.
SECTION 3. REMOVAL. The Trustees, at any
regular or special meeting of the Trustees, may remove any officer with or
without cause, by a vote of a majority of the Trustees then in office. Any
officer or agent appointed by an officer or committee may be removed with or
without cause by such appointing officer or committee.
SECTION 4. POWERS AND DUTIES OF THE
CHAIRMAN. The Chairman, if such an officer is elected, shall, if present,
preside at meetings of the Shareholders and the Trustees, and shall, subject to
the control of the Trustees, have general supervision, direction and control of
the business and the officers of the Trust and exercise and perform such other
powers and duties as may be from time to time assigned to him by the Trustees or
prescribed by the Declaration of Trust or these By-Laws. In the absence of the
Chairman, the Vice Chairman, if such an officer is elected, shall assume all
powers and duties assigned to the Chairman hereunder.
SECTION 5. POWERS AND DUTIES OF THE
PRESIDENT. Subject to the powers of the Chairman, if there be such an officer,
the President shall be the principal executive officer of the Trust. He or she
may call meetings of the Trustees and of any Committee thereof when he or she
deems it necessary and, in the absence of the Chairman, shall preside at all
meetings of the Shareholders. Subject to the control of the Trustees, the
Chairman and any Committees of the Trustees, within their respective spheres, as
provided by the Trustees, the President shall at all times exercise a general
supervision and direction over the affairs of the Trust. The President shall
have the power to employ attorneys and counsel for the Trust and to employ such
subordinate officers, agents, clerks and employees as he or she may find
necessary to transact the business of the Trust. He or she shall also have the
power to grant, issue, execute or sign such powers of attorney, proxies or other
documents as may be deemed advisable or necessary in furtherance of the
interests of the Trust. The President shall have such powers and duties as from
time to time may be conferred upon or assigned to him or her by the
Trustees. In the event that the Trustees have not appointed a
Secretary or a Treasurer, the President shall serve such
Position.
SECTION 6. POWERS AND DUTIES OF THE VICE
PRESIDENT. In the absence or disability of the President, the Vice President or,
if there be more than one Vice President, any Vice President designated by the
Trustees shall perform all the duties and may exercise any of the powers of the
President, subject to the control of the Trustees. Each Vice President shall
perform such other duties as may be assigned to him or her from time to time by
the Trustees or the President.
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SECTION 7. POWERS AND DUTIES OF THE
TREASURER. The Treasurer shall be the principal financial and accounting officer
of the Trust. The Treasurer shall deliver all funds of the Trust which may come
into his or her hands to such Custodian as the Trustees may employ pursuant to
Article X of these By-Laws. He or she shall render a statement of condition of
the finances of the Trust to the Trustees as often as they shall require the
same and he or she shall in general perform all the duties incident to the
office of Treasurer and such other duties as from time to time may be assigned
to him or her by the Trustees. The Treasurer shall give a bond for the faithful
discharge of his or her duties, if required so to do by the Trustees, in such
sum and with such surety or sureties as the Trustees shall
require.
SECTION 8. POWERS AND DUTIES OF THE
SECRETARY. The Secretary shall keep the minutes of all meetings of the Trustees
and of the Shareholders in proper books provided for that purpose; he or she
shall have custody of the seal of the Trust; he or she shall have charge of the
Share transfer books, lists and records unless the same are in the charge of the
Transfer Agent. The Secretary shall attend to the giving and serving of all
notices by the Trust in accordance with the provisions of these By-Laws and as
required by law; and subject to these By-Laws, he or she shall in general
perform all duties incident to the office of the Secretary and such other duties
as from time to time may be assigned to him or her by the
Trustees.
SECTION 9. POWERS AND DUTIES OF
ASSISTANT TREASURERS. In the absence or disability of the Treasurer, any
Assistant Treasurer designated by the Trustees shall perform all the duties, and
may exercise any of the powers, of the Treasurer. Each Assistant Treasurer shall
give a bond for the faithful discharge of his or her duties, if required so to
do by the Trustees, in such sum and with such surety or sureties as the Trustees
shall require.
SECTION 10. POWERS AND DUTIES OF
ASSISTANT SECRETARIES. In the absence or disability of the Secretary, any
Assistant Secretary designated by the Trustees shall perform all the duties, and
may exercise any of the powers, of the Secretary. Each Assistant Secretary shall
perform such other duties as from time to time may be assigned to him or her by
the Trustees.
SECTION 11. COMPENSATION OF TRUSTEES.
Trustees shall receive such compensation, including stated salaries, retirement
benefits, deferred compensation or any other form of compensation, as may be set
from time to time by the Board of Trustees. The Trust is authorized to pay the
necessary expenses of members of the Board of Trustees incurred in connection
with the performance of the official duties of their office.
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SECTION 12. COMPENSATION OF OFFICERS.
Subject to any applicable provisions of the Declaration of Trust, the
compensation of the officers shall be fixed from time to time by the Trustees or
by any Committee or officer upon whom such power may be conferred by the
Trustees. No officer shall be prevented from receiving such compensation as such
officer by reason of the fact that he or she is also a
Trustee.
ARTICLE VII
Fiscal Year
The fiscal year of the Trust shall end
on such date as the Trustees shall from time to time
determine.
ARTICLE VIII
Seal
The Trustees may adopt a seal which
shall be in such form and shall have such inscription thereon as the Trustees
may from time to time prescribe.
ARTICLE IX
Waivers of Notice
Whenever any notice whatever is required
to be given by law, the Declaration of Trust or these By-Laws, a waiver thereof
in writing, signed by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed equivalent thereto. A
notice shall be deemed to have been telegraphed, cabled or wired for the
purposes of these By-Laws when it has been delivered to a representative of any
telegraph, cable or wire company with instructions that it be telegraphed,
cabled or wired.
ARTICLE X
Custody of
Securities
SECTION 1. EMPLOYMENT OF A CUSTODIAN.
The Trust shall place and at all times maintain in the custody of a Custodian
(including any sub-custodian for the Custodian) all funds, securities and
similar investments included in the Trust Property. The Custodian (and any
sub-custodian) shall be a bank or other depository meeting such requirements as
may be set forth in the Investment Company Act of 1940 and other applicable law
and regulations for institutions serving as custodians of funds held by
registered investment companies. The Custodian shall be appointed from time to
time by the Trustees, who shall fix its remuneration.
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SECTION 2. ACTION UPON TERMINATION OF
CUSTODIAN AGREEMENT. Upon termination of a Custodian Agreement or inability of
the Custodian to continue to serve, the Trustees shall promptly appoint a
successor Custodian, but in the event that no successor Custodian can be found
who has the required qualifications and is willing to serve, the Trustees shall
call as promptly as possible a special meeting of the Shareholders to determine
whether the Trust shall function without a Custodian or shall be liquidated. If
so directed by a vote of holders of the majority of the outstanding Shares
entitled to vote, the Custodian shall deliver and pay over all Trust Property
held by it as specified in such vote.
SECTION 3. PROVISIONS OF CUSTODIAN
CONTRACT. The Custodian contract shall contain such provisions as may be
required in the case of such arrangements by the Investment Company Act of 1940
and rules and regulations adopted thereunder.
SECTION 4. CENTRAL CERTIFICATE SYSTEM.
Subject to applicable rules, regulations and orders adopted by the Commission,
the Trustees may direct the Custodian to deposit all or any part of the
securities owned by the Trust in a system for the central handling of securities
established by a national securities exchange or a national securities
association registered with the Commission under the Securities Exchange Act of
1934, or such other person as may be permitted by the Commission, or otherwise
in accordance with the 1940 Act, pursuant to which system all securities of any
particular class or series of any issuer deposited within the system are treated
as fungible and may be transferred or pledged by bookkeeping entry without
physical delivery of such securities, provided that all such deposits shall be
subject to withdrawal only upon the order of the Trust.
ARTICLE XI
Indemnification of Trustees, Officers,
Employees and Other Agents
SECTION 1. AGENTS, PROCEEDINGS,
EXPENSES. For the purpose of this Article, "agent" means any Person who is or
was a Trustee, officer, employee or other agent of the Trust or is or was
serving at the request of the Trust as a Trustee, officer, employee or agent of
another organization in which the Trust has any interest as a shareholder,
creditor or otherwise; "proceeding" means any threatened, pending or completed
claim, action, suit or proceeding, whether civil, criminal, administrative or
investigative (including appeals); and "expenses" includes, without limitation,
attorneys' fees, costs, judgments, amounts paid in settlement, fines, penalties
and all other liabilities whatsoever.
SECTION 2. INDEMNIFICATION. Subject to
the exceptions and limitation contained in Section 3 below, every agent shall be
indemnified by the Trust to the fullest extent permitted by law against all
liabilities and against all expenses reasonably incurred or paid by him or her
in connection with any proceeding in which he or she becomes involved as a party
or otherwise by virtue of his or her being or having been an
agent.
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SECTION 3. LIMITATIONS, SETTLEMENTS. No
indemnification shall be provided hereunder to an agent:
(a) who shall have been adjudicated by
the court or other body before which the proceeding was brought to be liable to
the Trust or its Shareholders by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his or
her office (collectively, "disabling conduct"); or
(b) with respect to any proceeding
disposed of (whether by settlement, pursuant to a consent decree or otherwise)
without an adjudication by the court or other body before which the proceeding
was brought that such agent was liable to the Trust or its Shareholders by
reason of disabling conduct, unless there has been a determination that such
agent did not engage in disabling conduct:
(i) by the court or other body before
which the proceeding was brought;
(ii) by at least a majority of those
Trustees who are neither Interested Persons of the Trust nor are parties to the
proceeding based upon a review of readily available facts (as opposed to a full
trial-type inquiry); or
(iii) by written opinion of independent
legal counsel based upon a review of readily available facts (as opposed to a
full trial-type inquiry); provided, however, that indemnification shall be
provided hereunder to an agent with respect to any proceeding in the event of
(1) a final decision on the merits by the court or other body before which the
proceeding was brought that the agent was not liable by reason of disabling
conduct, or (2) the dismissal of the proceeding by the court or other body
before which it was brought for insufficiency of evidence of any disabling
conduct with which such agent has been charged.
SECTION 4. INSURANCE, RIGHTS NOT
EXCLUSIVE. The rights of indemnification herein provided may be insured against
by policies maintained by the Trust on behalf of any agent, shall be severable,
shall not be exclusive of or affect any other rights to which any agent may now
or hereafter be entitled and shall inure to the benefit of the heirs, executors
and administrators of any agent.
SECTION 5. ADVANCE OF EXPENSES. Expenses
incurred by an agent in connection with the preparation and presentation of a
defense to any proceeding shall be paid by the Trust from time to time prior to
final disposition thereof upon receipt of an undertaking by or on behalf of such
agent that such amount will be paid over by him or her to the Trust if it is
ultimately determined that he or she is not entitled to indemnification under
this Article XI; provided, however, that (a) such agent shall have provided
appropriate security for such undertaking, (b) the Trust is insured against
losses arising out of any such advance payments or (c) either a majority of the
Trustees who are neither Interested Persons of the Trust nor parties to the
proceedings, or independent legal counsel in a written opinion, shall have
determined, based upon a review of readily available facts (as opposed to a full
trial-type inquiry or full investigation), that there is reason to believe that
such agent will be found entitled to indemnification under this Article
XI.
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SECTION 6. FIDUCIARIES OF EMPLOYEE
BENEFIT PLAN. The Article does not apply to any proceeding against any Trustee,
investment manager or other fiduciary of an employee benefit plan in that
person's capacity as such, even though that person may also be an agent of this
Trust as defined in Section 1 of this Article. Nothing contained in this Article
shall limit any right to indemnification to which such Trustee, investment
manager, or other fiduciary may be entitled by contract or otherwise which shall
be enforceable to the extent permitted by applicable law other than this
Article.
ARTICLE XII
Amendments
These By-Laws, or any of them, may be
altered, amended or repealed, or new By-laws may be adopted by (a) a vote of
holders of the majority of the outstanding Shares entitled to vote or (b) by the
Trustees, provided, however, that no By-law may be amended, adopted or repealed
by the Trustees if such amendment, adoption or repeal is required by applicable
law, the Declaration of Trust or these By-Laws, to be submitted to a vote of the
Shareholders.
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