HATTERAS RAMIUS 1099 FUND AGREEMENT AND DECLARATION OF TRUST Dated: March 10, 2009
AGREEMENT
AND DECLARATION OF TRUST
Dated: March
10, 2009
TABLE OF
CONTENTS
Page
|
ARTICLE
I
|
NAME
AND DEFINITIONS
|
1
|
|
Section
1.1
|
Name
|
1
|
|
Section
1.2
|
Definitions
|
1
|
|
ARTICLE
II
|
BENEFICIAL
INTEREST
|
2
|
|
Section
2.1
|
Shares
of Beneficial Interest
|
2
|
|
Section
2.2
|
Issuance
of Shares
|
3
|
|
Section
2.3
|
Register
of Shares and Share Certificates
|
3
|
|
Section
2.4
|
Transfer
of Shares
|
3
|
|
Section
2.5
|
Treasury
Shares
|
4
|
|
Section
2.6
|
Establishment
of Series and Classes
|
4
|
|
Section
2.7
|
Investment
in the Trust
|
5
|
|
Section
2.8
|
Assets
and Liabilities Belonging to Series, etc.
|
5
|
|
Section
2.9
|
No
Preemptive Rights
|
6
|
|
Section
2.10
|
Conversion
Rights
|
6
|
|
Section
2.11
|
Legal
Proceedings
|
6
|
|
Section
2.12
|
Status
of Shares
|
7
|
|
ARTICLE
III
|
THE
TRUSTEES
|
8
|
|
Section
3.1
|
Management
of the Trust
|
8
|
|
Section
3.2
|
Term
of Office of Trustees
|
8
|
|
Section
3.3
|
Vacancies
and Appointment of Trustees
|
8
|
|
Section
3.4
|
Temporary
Absence of Trustee
|
9
|
|
Section
3.5
|
Number
of Trustees
|
9
|
|
Section
3.6
|
Effect
of Death, Resignation, Etc. of a Trustee
|
9
|
|
Section
3.7
|
Ownership
of Assets of the Trust
|
9
|
|
Section
3.8
|
Series
Trustees
|
10
|
|
Section
3.9
|
No
Accounting
|
10
|
|
ARTICLE
IV
|
POWERS
OF THE TRUSTEES
|
10
|
|
Section
4.1
|
Powers
|
10
|
|
Section
4.2
|
Issuance
and Repurchase of Shares
|
14
|
|
Section
4.3
|
Trustees
and Officers as Shareholders
|
14
|
|
Section
4.4
|
Action
by the Trustees and Committees
|
14
|
|
Section
4.5
|
Chairman
of the Trustees
|
15
|
|
Section
4.6
|
Principal
Transactions
|
15
|
|
ARTICLE
V
|
INVESTMENT
ADVISER, INVESTMENT SUB-ADVISER, PRINCIPAL UNDERWRITER, ADMINISTRATOR,
TRANSFER AGENT, CUSTODIAN AND OTHER CONTRACTORS
|
15
|
|
Section
5.1
|
Certain
Contracts
|
15
|
|
ARTICLE
VI
|
SHAREHOLDER
VOTING POWERS AND MEETINGS
|
17
|
|
Section
6.1
|
Voting
|
17
|
|
Section
6.2
|
Meetings
|
18
|
|
Section
6.3
|
Quorum
and Required Vote
|
18
|
|
Section
6.4
|
Action
by Written Consent
|
18
|
TABLE OF
CONTENTS
Page
|
ARTICLE
VII
|
DISTRIBUTIONS
AND REDEMPTIONS
|
19
|
|
Section
7.1
|
Distributions
|
19
|
|
Section
7.2
|
Transfer
of Shares
|
19
|
|
Section
7.3
|
Repurchases
and Redemptions
|
20
|
|
Section
7.4
|
Net
Asset Value
|
23
|
|
ARTICLE
VIII
|
LIMITATION
OF LIABILITY AND INDEMNIFICATION
|
23
|
|
Section
8.1
|
Limitation
of Liability
|
23
|
|
Section
8.2
|
Indemnification
|
23
|
|
Section
8.3
|
Indemnification
Determinations
|
24
|
|
Section
8.4
|
Indemnification
Not Exclusive
|
24
|
|
Section
8.5
|
Shareholders
|
24
|
|
ARTICLE
IX
|
MISCELLANEOUS
|
25
|
|
Section
9.1
|
Trust
Not a Partnership
|
25
|
|
Section
9.2
|
Trustees'
Good Faith Action, Expert Advice, No Bond or Surety
|
25
|
|
Section
9.3
|
Establishment
of Record Dates
|
25
|
|
Section
9.4
|
Dissolution
and Termination of Trust or Series
|
26
|
|
Section
9.5
|
Merger,
Consolidation, Incorporation
|
27
|
|
Section
9.6
|
Filing
of Copies, References, Headings
|
27
|
|
Section
9.7
|
Applicable
Law
|
28
|
|
Section
9.8
|
Amendments
|
28
|
|
Section
9.9
|
Fiscal
Year
|
29
|
|
Section
9.10
|
Provisions
in Conflict with Law
|
29
|
|
Section
9.11
|
Allocation
of Certain Expenses
|
29
|
-ii-
AGREEMENT AND DECLARATION OF
TRUST
AGREEMENT AND DECLARATION OF TRUST of
Hatteras Ramius 1099 Fund, a Delaware statutory trust, made as of March 10, 2009
by the undersigned Trustee.
WHEREAS, the undersigned Trustee
desires to establish a trust for the investment and reinvestment of funds
contributed thereto;
WHEREAS, the Trustee desires that the
beneficial interest in the trust assets be divided into transferable shares of
beneficial interest, as hereinafter provided;
WHEREAS, the Trustee declares that all
money and property contributed to the trust established hereunder shall be held
and managed in trust for the benefit of the holders of the shares of beneficial
interest issued hereunder and subject to the provisions hereof;
NOW, THEREFORE, in consideration of the
foregoing, the undersigned Trustee hereby declares that all money and property
contributed to the trust hereunder shall be held and managed in trust under this
Declaration of Trust ("Trust Instrument") as herein set forth
below.
ARTICLE
I
NAME AND
DEFINITIONS
Section 1.1 Name. The
name of the trust established hereby is “Hatteras Ramius 1099
Fund.”
Section 1.2 Definitions. Wherever
used herein, unless otherwise required by the context or specifically
provided:
(a) "Act" means the
Delaware Statutory Trust Act, 12 Del. C. §§ 3801 et seq., as from time
to time amended;
(b) "By-laws" means
the By-laws referred to in Section 4.1(e) hereof, as from time to time
amended;
(c) The terms
"Affiliated Person," "Assignment," "Commission," "Interested Person" and
"Principal Underwriter" shall have the meanings given them in the 1940
Act. "Majority Shareholder Vote" shall have the same meaning as the
term "vote of a majority of the outstanding voting securities" is given in the
1940 Act;
(d) "Class" means
any division of Shares within a Series, which Class is or has been established
in accordance with the provisions of Article II.
(e) "Net Asset
Value" means the net asset value of each Series or Class of the Trust determined
in the manner provided in Section 7.4 hereof;
(f) "Outstanding
Shares" means those Shares recorded from time to time in the books of the Trust
or its transfer agent as then issued and outstanding, but shall not include
Shares which have been redeemed or repurchased by the Trust and which are at the
time held in the treasury of the Trust;
(g) "Series" means
a series of Shares of the Trust established in accordance with the provisions of
Section 2.6 hereof;
(h) "Shareholder"
means a record owner of Outstanding Shares of the Trust;
(i) "Shares" means
the equal proportionate transferable units of beneficial interest into which the
beneficial interest of each Series of the Trust or Class thereof shall be
divided and may include fractions of Shares as well as whole
Shares;
(j) "Trust" refers
to Hatteras Ramius 1099 Fund and reference to the Trust, when applicable to one
or more Series of the Trust, shall refer to any such Series;
(k) "Trustee" or
"Trustees" means the person or persons who has or have signed this Trust
Instrument, so long as such person or persons shall continue in office in
accordance with the terms hereof, and all other persons who may from time to
time be duly qualified and serving as Trustees in accordance with the provisions
of Article III hereof, and reference herein to a Trustee or to the Trustees
shall refer to the individual Trustees in their capacity as Trustees
hereunder;
(l)
"Trust Property" means any and all property, real or personal, tangible or
intangible, which is owned or held by or for the account of one or more of the
Trust or any Series, or the Trustees on behalf of the Trust or any
Series.
(m) “Valuation
Date” means the date on which the value of Shares being repurchased will be
determined by the Trustees in their sole discretion.
(n) The "1940 Act"
refers to the Investment Company Act of 1940 and the Rules and Regulations
thereunder, all as may be amended from time to time.
ARTICLE
II
BENEFICIAL
INTEREST
Section 2.1 Shares of Beneficial
Interest. The beneficial interest in the Trust shall be
divided into such transferable Shares of one or more separate and distinct
Series and Classes within a Series as the Trustees shall from time to time
create and establish. The number of Shares of each Series and Class
authorized hereunder is unlimited. Each Share shall have a par value
of $0.001, unless otherwise determined by the Trustees in connection with the
creation and establishment of a Series or Class. All Shares issued
hereunder, including without limitation, Class Shares issued in connection with
a dividend in Shares or a split or reverse split of Shares, shall be fully paid
and nonassessable.
-2-
Section 2.2 Issuance of
Shares. The Trustees in their discretion may, from time to
time, without vote of the Shareholders, issue Shares of each Series and
Class to such party or parties and for such amount and type of consideration (or
for no consideration if pursuant to a Share dividend or split-up), subject to
applicable law, including cash or securities (including Shares of a different
Series or Class), at such time or times and on such terms as the Trustees may
deem appropriate, and may in such manner acquire other assets (including
the acquisitions of assets subject to, and in connection with, the
assumption of liabilities) and businesses. In connection with any
issuance of Shares, the Trustees may issue fractional Shares and Shares held in
the treasury. The Trustees may from time to time divide or combine
the Shares into a greater or lesser number without thereby changing the
proportionate beneficial interests in the Trust. The Trustees may
classify or reclassify any unissued Shares or any Shares previously issued and
reacquired of any Series or Class into one or more Series or Classes that may be
established and designated from time to time.
Any
Trustee, officer or other agent of the Trust, and any organization in which any
such person is interested, may acquire, own, hold and dispose of Shares of any
Series or Class of the Trust to the same extent as if such person were not a
Trustee, officer or other agent of the Trust; and the Trust may issue and sell
or cause to be issued and sold and may purchase Shares of any Series or Class
from any such person or any such organization subject only to the general
limitations, restrictions or other provisions applicable to the sale or purchase
of Shares of such Series or Class generally.
Section 2.3 Register of Shares and Share
Certificates. A register shall be kept at the
principal office of the Trust or an office of the Trust's transfer agent which
shall contain the names and addresses of the Shareholders of each Series and
Class, the number of Shares of that Series and Class thereof held by them
respectively and a record of all transfers thereof. As to Shares for
which no certificate has been issued, such register shall be conclusive as to
who are the holders of the Shares and who shall be entitled to receive dividends
or other distributions or otherwise to exercise or enjoy the rights of
Shareholders. No Shareholder shall be entitled to receive payment of
any dividend or other distribution, nor to have notice given to him as herein or
in the By-laws provided, until he has given his address to the transfer agent or
such other officer or agent of the Trust as shall keep the said register for
entry thereon. The Trustees, in their discretion, may authorize the
issuance of share certificates and promulgate appropriate rules and regulations
as to their use. In the event that one or more certificates are
issued, whether in the name of a Shareholder or a nominee, such certificate or
certificates shall constitute evidence of ownership of Shares for all purposes,
including transfer, assignment or sale of such Shares, subject to such
limitations as the Trustees may, in their discretion, prescribe.
Section 2.4 Transfer of
Shares. Except as otherwise provided by the Trustees, Shares
shall be transferable on the records of the Trust only in accordance with
Section 7.2 herein and only by the record holder thereof or by his
agent thereunto duly authorized in writing, upon delivery to the Trustees or the
Trust's transfer agent of a duly executed instrument of transfer, together
with a Share certificate, if one is outstanding, and such evidence of the
genuineness of each such execution and authorization and of such other matters
as may be required by the Trustees. Upon such delivery the transfer
shall be recorded on the 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 hereunder and neither the Trustees nor the Trust, 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.
-3-
Section 2.5 Treasury
Shares. Shares held in the treasury shall, until reissued
pursuant to Section 2.2 hereof, not confer any voting rights on the
Trustees, nor shall such Shares be entitled to any dividends or other
distributions declared with respect to the Shares.
Section 2.6 Establishment of Series and
Classes. The Trust shall consist of one or more Series and
Classes and separate and distinct records shall be maintained by the Trust for
each Series and Class. The Trustees shall have full power and
authority, in their sole discretion, and without obtaining any prior
authorization or vote of the Shareholders of any Series or Class of the Trust,
to establish and designate and to change in any manner any initial or additional
Series or Classes and to fix such preferences, voting powers, rights and
privileges of such Series or Classes as the Trustees may from time to time
determine, to divide or combine the Shares or any Series or Classes into a
greater or lesser number, to classify or reclassify any issued Shares or any
Series or Classes into one or more Series or Classes of Shares, and to take such
other action with respect to the Shares as the Trustees may deem
desirable. Unless another time is specified by the Trustees, the
establishment and designation of any Series or Class shall be effective upon the
adoption of a resolution by the Trustees setting forth such establishment and
designation and the preferences, powers, rights and privileges of the Shares of
such Series or Class, whether directly in such resolution or by reference to, or
approval of, another document that sets forth such relative rights and
preferences of such Series (or Class) including, without limitation, any
registration statement of the Trust, or as otherwise provided in such
resolution. The Trust may issue any number of Shares of each Series
or Class and need not issue certificates for any Shares.
All references to Shares in this Trust
Instrument shall be deemed to be Shares of any or all Series or Classes as the
context may require. All provisions herein relating to the Trust
shall apply equally to each Series and Class of the Trust except as the context
otherwise requires.
All Shares of each Class of a
particular Series shall represent an equal proportionate interest in the assets
belonging to that Series (subject to the liabilities belonging to the Series,
and, in the case of each Class, to the liabilities belonging to that Class), and
each Share of any Class of a particular Series shall be equal to each other
Share of that Class; but the provisions of this sentence shall not restrict any
distinctions permissible under this Section 2.6.
-4-
Section 2.7 Investment in the
Trust. The Trustees shall accept investments in any Series of
the Trust or Class, if the Series has been divided into Classes, from such
persons and on such terms as they may from time to time authorize. At
the Trustees' discretion, such investments, subject to applicable law, may be in
the form of cash or securities in which the affected Series is authorized to
invest, valued as provided in Section 7.4 hereof. Unless the
Trustees otherwise determine, investments in a Series shall be credited to each
Shareholder's account in the form of full Shares at the Net Asset Value per
Share next determined after the investment is received. Without
limiting the generality of the foregoing, the Trustees may, in their sole
discretion, (a) fix the Net Asset Value per Share of the initial capital
contribution, (b) impose sales or other charges upon investments in the Trust or
(c) issue fractional Shares.
Section 2.8 Assets and Liabilities
Belonging to Series, etc. All consideration received by the
Trust for the issue or sale of Shares of a particular Series, together with all
assets in which such consideration is invested or reinvested, all income,
earnings, profits, and proceeds thereof, including any proceeds derived from the
sale, exchange or liquidation of such assets, and any funds or payments derived
from any reinvestment of such proceeds in whatever form the same may be, shall
be held and accounted for separately from the other assets of the Trust and of
every other Series and may be referred to herein as "assets belonging to" that
Series. The assets belonging to a particular Series shall belong to
that Series for all purposes, and to no other Series, subject only to the rights
of creditors of that Series. In addition, any assets, income,
earnings, profits or funds, or payments and proceeds with respect thereto, which
are not readily identifiable as belonging to any particular Series shall be
allocated by the Trustees between and among one or more of the Series in such
manner as the Trustees, in their sole discretion, deem fair and
equitable. If there are classes of Shares within a Series, the assets
belonging to the Series shall be further allocated to each Class in the
proportion that the "assets belonging to" the Class (calculated in the same
manner as with determination of assets "belonging to" the Series) bears to the
assets of all Classes within the Series. Each such allocation shall
be conclusive and binding upon the Shareholders of all Series and Classes for
all purposes, and such assets, income, earnings, profits or funds, or payments
and proceeds with respect thereto shall be assets belonging to that Series or
Class, as the case may be. The assets belonging to a particular
Series and Class shall be so recorded upon the books of the Trust, and shall be
held by the Trustees in trust for the benefit of the holders of Shares of that
Series or Class, as the case may be.
The assets belonging to each Series
shall be charged with the liabilities of that Series and all expenses, costs,
charges and reserves attributable to that Series. Any general
liabilities, expenses, costs, charges or reserves of the Trust which are not
readily identifiable as belonging to any particular Series shall be allocated
and charged by the Trustees between or among any one or more of the Series in
such manner as the Trustees in their sole discretion deem fair and
equitable. Each such allocation shall be conclusive and binding upon
the Shareholders of all Series for all purposes. The liabilities,
expenses, costs, charges and reserves allocated and so charged to a Series are
herein referred to as "liabilities belonging to" that Series. Except
as provided in the next sentence or otherwise required or permitted by
applicable law or any rule or order of the Commission, the "liabilities
belonging to" such Series shall be allocated to each Class of a Series in the
proportion that the assets belonging to such Class bear to the assets belonging
to all Classes in the Series. To the extent permitted by rule or
order of the Commission, the Trustees may allocate all or a portion of any
liabilities belonging to a Series to a particular Class or Classes
(collectively, "Class Expenses") as the Trustees may from time to time determine
is appropriate. In addition, all liabilities, expenses, costs,
charges and reserves belonging to a Class shall be allocated to such
Class.
-5-
Without limitation of the foregoing
provisions of this Section 2.8, but subject to the right of the Trustees in
their discretion to allocate general liabilities, expenses, costs, charges or
reserves as herein provided, the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to a particular
Series shall be enforceable against the assets belonging to such Series only,
and not against the assets of the Trust generally or any other
Series. Notice of this limitation on inter-Series liabilities shall
be set forth in the certificate of trust of the Trust (whether originally or by
amendment) as filed or to be filed in the Office of the Secretary of State of
the State of Delaware pursuant to the Act, and upon the giving of such notice in
the certificate of trust, the statutory provisions of Section 3804 of the
Act relating to limitations on inter-Series liabilities (and the statutory
effect under Section 3804 of setting forth such notice in the certificate
of trust) shall become applicable to the Trust and each Series. Any
person extending credit to, contracting with or having any claim against any
Series may satisfy or enforce any debt, liability, obligation or expense
incurred, contracted for or otherwise existing with respect to that Series from
the assets of that Series only. No Shareholder or former Shareholder
of any Series shall have a claim on or any right to any assets allocated or
belonging to any other Series.
Similarly, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to a particular Class shall be enforceable against the assets belonging
to such Class only, and not against the assets of the Series or the Trust
generally or any other Class.
Section 2.9 No Preemptive
Rights. Shareholders shall have no preemptive or other similar
rights to subscribe to any additional Shares or other securities issued by the
Trust or the Trustees, whether of the same or another Series or
Class.
Section 2.10 Conversion
Rights. The Trustees shall have the authority to provide from
time to time that the holders of Shares of any Series or Class shall have the
right to convert or exchange said Shares for or into Shares of one or more other
Series or Classes in accordance with such requirements and procedures as may be
established from time to time by the Trustees.
Section 2.11 Legal
Proceedings. No person, other than a Trustee, who is not a
Shareholder of a particular Series or Class shall be entitled to bring any
derivative action, suit or other proceeding on behalf of or with respect to such
Series or Class. No Shareholder of a Series or a Class may maintain a
derivative action with respect to such Series or Class unless holders of a least
ten percent (10%) of the outstanding Shares of such Series or Class join in the
bringing of such action. Except as otherwise provided in Section 3816
of the Act and the foregoing provisions of this Section 2.11, all matters
relating to the bringing of derivative actions in the right of the Trust shall
be governed by the General Corporation Law of the State of Delaware
relating to derivative actions, and judicial interpretations thereunder, as if
the Trust were a Delaware corporation and the Shareholders were shareholders of
a Delaware corporation.
-6-
In
addition to the requirements set forth in Section 3816 of the Act, a Shareholder
may bring a derivative action on behalf of the Trust with respect to a Series or
Class only if the following conditions are met: (a) the Shareholder
or Shareholders must make a pre-suit demand upon the Trustees to bring the
subject action unless an effort to cause the Trustees to bring such an action is
not likely to succeed; and a demand on the Trustees shall only be deemed not
likely to succeed and therefore excused if a majority of the Trustees, or a
majority of any committee established to consider the merits of such action, has
a personal financial interest in the transaction at issue, and a Trustee shall
not be deemed interested in a transaction or otherwise disqualified from ruling
on the merits of a Shareholder demand by virtue of the fact that such Trustee
receives remuneration for his service as a Trustee of the Trust or as a trustee
or director of one or more investment companies that are under common management
with or otherwise affiliated with the Trust; and (b) unless a demand is not
required under clause (a) of this paragraph, the Trustees must be afforded a
reasonable amount of time to consider such shareholder request and to
investigate the basis of such claim; and the Trustees shall be entitled to
retain counsel or other advisers in considering the merits of the request and
shall require an undertaking by the Shareholders making such request to
reimburse the Trust for the expense of any such advisers in the event that the
Trustees determine not to bring such action. For purposes of this
Section 2.11, the Trustees may designate a committee of one Trustee to consider
a Shareholder demand if necessary to create a committee with a majority of
Trustees who do not have a personal financial interest in the transaction at
issue.
Section 2.12 Status of
Shares. Shares shall be deemed to be personal property giving
only the rights provided in this instrument. Every Shareholder by
virtue of having become a Shareholder shall be held to have expressly assented
and agreed to the terms hereof. The death of a Shareholder during the
continuance of the Trust shall not operate to terminate the Trust nor entitle
the representative of any deceased Shareholder to an accounting or to take any
action in court or elsewhere against the Trust or the Trustees, but only to the
rights of said decedent under this Trust. Ownership of Shares shall
not entitle the Shareholder to any title in or to the whole or any part of the
Trust property or right to call for a partition or division of the same or for
an accounting, nor shall the ownership of Shares constitute the Shareholders
partners.
-7-
ARTICLE
III
THE
TRUSTEES
Section 3.1 Management of the
Trust. The Trustees shall have exclusive and absolute control
over the Trust Property and over the business of the Trust to the same extent as
if the Trustees were the sole owners of the Trust Property and business in their
own right, but with such powers of delegation as may be permitted by this Trust
Instrument. The Trustees shall have power to conduct the business of
the Trust and carry on its operations in any and all of its branches and
maintain offices both within and without the State of Delaware, in any and all
states of the United States of America, in the District of Columbia, in any and
all commonwealths, territories, dependencies, colonies, or possessions of
the United States of America, and in any foreign jurisdiction and to do all such
other things and execute all such instruments as they deem necessary, proper or
desirable in order to promote the interests of the Trust although such things
are not herein specifically mentioned. Any determination as to what
is in the interests of the Trust made by the Trustees in good faith shall be
conclusive. In construing the provisions of this Trust Instrument,
the presumption shall be in favor of a grant of power to the
Trustees.
The enumeration of any specific power
in this Trust Instrument shall not be construed as limiting the aforesaid
power. The powers of the Trustees may be exercised without order of
or resort to any court.
Except for the Trustees named herein or
appointed pursuant to Section 3.8, or Trustees appointed to fill vacancies
pursuant to Section 3.3 hereof, the Trustees shall be elected by the
Shareholders owning of record a plurality of the Shares voting at a meeting of
Shareholders. The initial Trustee of the Trust shall be Xxxxx X.
Xxxxxxx.
Section 3.2 Term of Office of
Trustees. Each Trustee shall hold office during the existence
of this Trust, and until its termination as herein provided; except: (a) that
any Trustee may resign his trust by written instrument signed by him and
delivered to the Chairman, President, Secretary, or other Trustee of the Trust,
which shall take effect upon such delivery or upon such later date as is
specified therein; (b) that any Trustee may be removed, with or without cause,
at any time by written instrument, signed by a majority of the Trustees prior to
such removal, specifying the date when such removal shall become effective; (c)
that any Trustee who requests in writing to be retired or who has died, become
physically or mentally incapacitated by reason of disease or otherwise, or is
otherwise unable to serve, may be retired by written instrument signed by a
majority of the other Trustees, specifying the date of his retirement; and (d)
that a Trustee may be removed, with or without cause, at any meeting of the
Shareholders of the Trust by a vote of Shareholders owning at least two-thirds
of the outstanding Shares of all Series.
Section 3.3 Vacancies and Appointment of
Trustees. In case of the declination to serve, death,
resignation, retirement, removal, physical or mental incapacity by reason of
disease or otherwise of a Trustee, or a Trustee is otherwise unable to serve, or
an increase in the number of Trustees, a vacancy shall
occur. Whenever a vacancy in the Board of Trustees shall occur, until
such vacancy is filled, the other Trustees shall have all the powers hereunder
and the certificate of the other Trustees of such vacancy shall be
conclusive. In the case of an existing vacancy, the remaining Trustee
or Trustees shall fill such vacancy by appointing such other person as such
Trustee or Trustees in their discretion shall see fit consistent with the
limitations under the 1940 Act, unless such Trustee or Trustees determine, in
accordance with Section 3.5, to decrease the size of the Board to the number of
remaining Trustees.
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An appointment of a Trustee may be made
by the Trustees then in office in anticipation of a vacancy to occur by reason
of retirement, resignation or increase in number of Trustees effective at a
later date, provided that said appointment shall become effective only at or
after the effective date of said retirement, resignation or increase in number
of Trustees.
An appointment of a Trustee shall be
effective upon the acceptance of the person so appointed to serve as Trustee,
except that any such appointment in anticipation of a vacancy shall become
effective at or after the date such vacancy occurs.
Section 3.4 Temporary Absence of
Trustee. Any Trustee may, by power of attorney, delegate his
power for a period not exceeding six months at any one time to any other Trustee
or Trustees, provided that in no case shall less than two Trustees personally
exercise the other powers hereunder except as herein otherwise expressly
provided or unless there is only one or two Trustees.
Section 3.5 Number of
Trustees. The number of Trustees shall be one, or such other
number as shall be fixed from time to time by the Trustees.
Section 3.6 Effect of Death,
Resignation, Etc. of a Trustee. The declination to serve,
death, resignation, retirement, removal, incapacity, or inability of the
Trustees, or any one of them, shall not operate to terminate the Trust or to
revoke any existing agency created pursuant to the terms of this Trust
Instrument.
Section 3.7 Ownership of Assets of the
Trust. Legal title in and beneficial ownership of all of the
assets of the Trust shall at all times be considered as vested in the Trust,
except that the Trustees may cause legal title in and beneficial ownership
of any Trust Property to be held by, or in the name of one or more of the
Trustees acting for and on behalf of the Trust, or in the name of any person as
nominee acting for and on behalf of the Trust. No Shareholder shall
be deemed to have a severable ownership interest in any individual asset of the
Trust or of any Series or Class, or any right of partition or possession
thereof, but each Shareholder shall have, except as otherwise provided for
herein, a proportionate undivided beneficial interest in each Series or Class
the Shares of which are owned by such Shareholders. The Shares shall
be personal property giving only the rights specifically set forth in this Trust
Instrument. The Trust, or at the determination of the Trustees, one
or more of the Trustees or a nominee acting for and on behalf of the Trust,
shall be deemed to hold legal title and beneficial ownership of any income
earned on securities of the Trust issued by any business entities formed,
organized, or existing under the laws of any jurisdiction, including the laws of
any foreign country.
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Section
3.8 Series
Trustees. In connection with the establishment of one or more
Series or Classes, the Trustees establishing such Series or Class may appoint,
to the extent permitted by the 1940 Act, separate Trustees with respect to such
Series or Classes (the "Series Trustees"). Series Trustees may, but
are not required to, serve as Trustees of the Trust of any other Series or Class
of the Trust. To the extent provided by the Trustees in the
appointment of Series Trustees, the Series Trustees may have, to the exclusion
of any other Trustee of the Trust, all the powers and authorities of Trustees
hereunder with respect to such Series or Class, but may have no power or
authority with respect to any other Series or Class. Any provision of
this Trust Instrument relating to election of Trustees by Shareholders only
shall entitle the Shareholders of a Series or Class for which Series Trustees
have been appointed to vote with respect to the election of such Series Trustees
and the Shareholders of any other Series or Class shall not be entitled to
participate in such vote. In the event that Series Trustees are
appointed, the Trustees initially appointing such Series Trustees shall, without
the approval of any Outstanding Shares, amend either this Trust Instrument or
the By-laws to provide for the respective responsibilities of the Trustees and
the Series Trustees in circumstances where an action of the Trustees or Series
Trustees affects all Series of the Trust or two or more Series represented by
different Trustees.
Section 3.9 No
Accounting. Except to the extent required by the 1940 Act or,
if determined to be necessary or appropriate by the other Trustees under
circumstances which would justify his or her removal for cause, no person
ceasing to be a Trustee for reasons including, but not limited to, death,
resignation, retirement, removal or incapacity (nor the estate of any such
person) shall be required to make an accounting to the Shareholders or remaining
Trustees upon such cessation.
ARTICLE
IV
POWERS OF THE
TRUSTEES
Section 4.1 Powers. The
Trustees in all instances shall act as principals, and are and shall be free
from the control of the Shareholders. The Trustees shall have full
power and authority to do any and all acts and to make and execute any and all
contracts and instruments that they may consider necessary or appropriate in
connection with the management of the Trust. The Trustees shall have
full authority and power to make any and all investments which they, in their
sole discretion, shall deem proper to accomplish the purpose of this
Trust. Subject to any applicable limitation in this Trust Instrument,
the Trustees shall have power and authority:
(a) To invest and
reinvest cash and other property, and to hold cash or other property uninvested,
and to sell, exchange, lend, pledge, mortgage, hypothecate, write options on and
lease any or all of the assets of the Trust;
(b) To operate as
and carry on the business of an investment company, and exercise all the powers
necessary and appropriate to the conduct of such operators, including the power
to invest all or any part of its assets in the securities of another investment
company;
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(c) To borrow money
and in this connection issue notes or other evidence of indebtedness; to secure
borrowings by mortgaging, pledging or otherwise subjecting as security the Trust
Property; to endorse, guarantee, or undertake the performance of an obligation,
liability or engagement of any person and to lend Trust Property;
(d) To provide for
the distribution of interests of the Trust either through a Principal
Underwriter in the manner hereinafter provided for or by the Trust itself, or
both, or otherwise pursuant to a plan of distribution of any kind;
(e) To adopt
By-laws not inconsistent with this Trust Instrument providing for the conduct of
the business of the Trust and to amend and repeal them to the extent that they
do not reserve that right to the Shareholders, which By-laws shall be deemed a
part of this Trust Instrument and are incorporated herein by
reference;
(f) To elect and
remove such officers and appoint and terminate such agents and contractors as
they consider appropriate, any of whom may be a Trustee, and may provide for the
compensation of all of the foregoing;
(g) To employ one
or more banks, trust companies or companies that are members of a national
securities exchange or such other entities as custodians of any assets of the
Trust, subject to the 1940 Act and to any conditions set forth in
this Trust Instrument;
(h) To retain one
or more transfer agents and shareholder servicing agents, or both;
(i) To set record
dates in the manner provided herein or in the By-laws;
(j) To delegate
such authority (which delegation may include the power to subdelegate) as they
consider desirable to any officers of the Trust and to any investment adviser,
manager, administrator, custodian, underwriter or other agent or independent
contractor;
(k) To join with
other holders of any securities or debt instruments in acting through a
committee, depository, voting trustee or otherwise, and in that connection to
deposit any security or debt instrument with, or transfer any security or debt
instrument to, any such committee, depository or trustee, and to delegate to
them such power and authority with relation to any security or debt instrument
(whether or not so deposited or transferred) as the Trustees shall deem proper
and to agree to pay, and to pay, such portion of the expenses and compensation
of such committee, depository or trustee as the Trustees shall deem
proper;
(l) To enter into
joint ventures, general or limited partnerships and any other combinations or
associations;
(m) To pay pensions
for faithful service, as deemed appropriate by the Trustees, and to adopt,
establish and carry out pension, profit-sharing, share bonus, share purchase,
savings, thrift and other retirement, incentive and benefit plans, trusts and
provisions, including the purchasing of life insurance and annuity contracts as
a means of providing such retirement and other benefits, for any or all of the
Trustees, officers, employees and agents of the Trust;
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(n) To the extent
permitted by law, indemnify any person with whom the Trust or any Series or
Class has dealings;
(o) To engage in
and to prosecute, defend, compromise, abandon, or adjust by arbitration, or
otherwise, any actions, suits, proceedings, disputes, claims and demands
relating to the Trust, and out of the assets of the Trust or any Series or Class
thereof to pay or to satisfy any debts, claims or expenses incurred in
connection therewith, including those of litigation, and such power shall
include without limitation the power of the Trustees or any appropriate
committee thereof, in the exercise of their or its good faith business judgment,
to dismiss any action, suit, proceeding, dispute, claim or demand, derivative or
otherwise, brought by any person, including a Shareholder in its own name or the
name of the Trust, whether or not the Trust or any of the Trustees may be named
individually therein or the subject matter arises by reason of business for or
on behalf of the Trust;
(p) To purchase and
pay for entirely out of Trust Property such insurance as they may deem necessary
or appropriate for the conduct of the business of the Trust, including, without
limitation, insurance policies insuring the Trust Property and payment of
distributions and principal on its investments, and insurance policies insuring
the Shareholders, Trustees, officers, representatives, employees, agents,
investment advisers, managers, administrators, custodians, underwriters, or
independent contractors of the Trust individually against all claims and
liabilities of every nature arising by reason of holding, being or having held
any such office or position, or by reason of any action alleged to have been
taken or omitted by any such person in such capacity, including any action taken
or omitted that may be determined to constitute negligence, whether or not the
Trust would have the power to indemnify such person against such
liability;
(q) To sell,
exchange, lend, pledge, mortgage, hypothecate, write options on and lease any or
all of the assets of the Trust, subject to the provisions of Section 9.4(b)
hereof;
(r) To vote or give
assent, or exercise any rights of ownership, with respect to stock or other
securities, debt instruments or property; and to execute and deliver powers of
attorney to such person or persons as the Trustees shall deem proper, granting
to such person or persons such power and discretion with relation to securities,
debt instruments or property as the Trustees shall deem proper;
(s) To exercise
powers and rights of subscription or otherwise which in any manner arise out of
ownership of securities or debt instruments;
(t) To hold any
security or property in a form not indicating any trust, whether in bearer, book
entry, unregistered or other negotiable form; or either in the name of the
Trustees or of the Trust or in the name of a custodian, subcustodian or other
depository or a nominee or nominees or otherwise;
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(u) To establish
separate and distinct Series with separately defined investment objectives and
policies and distinct investment purposes in accordance with the provisions of
Article II hereof and to establish Classes thereof having relative rights,
powers and duties as they may provide consistent with applicable
law;
(v) To consent to
or participate in any plan for the reorganization, consolidation or merger of
any corporation, issuer or concern, any security or debt instrument of which is
held in the Trust; to consent to any contract, lease, mortgage, purchase or sale
of property by such corporation, issuer or concern, and to pay calls or
subscriptions with respect to any security or debt instrument held in the
Trust;
(w) To litigate,
compromise, arbitrate, or otherwise adjust claims in favor of or against the
Trust or any matter in controversy including, but not limited to, claims for
taxes;
(x) To make
distributions of income and of capital gains to Shareholders in the manner
herein provided;
(y) To establish,
from time to time, a minimum investment for Shareholders in the Trust or in one
or more Series or Classes, and to require the repurchase of the Shares of any
Shareholders whose investment is less than such minimum upon giving notice to
such Shareholder;
(z) To
cause each Shareholder, or each Shareholder of any particular Series of Class,
to pay directly, in advance or arrears, for charges of the Trust's custodian or
transfer, shareholder servicing or similar agent, an amount fixed from time to
time by the Trustees, by setting off such charges due from such Shareholder from
declared but unpaid dividends owed such Shareholder and/or by reducing the
number of Shares in the account of such Shareholder by that number of full
and/or fractional Shares which represents the outstanding amount of such charges
due from such Shareholder;
(aa) To establish
one or more committees comprised of one or more of the Trustees, and to delegate
any of the powers of the Trustees to said committees;
(bb) To interpret
the investment policies, practices or limitations of any Series or
Class;
(cc) To establish a
registered office and have a registered agent in the State of
Delaware;
(dd) To compensate
or provide for the compensation of the Trustees, officers, advisers,
administrators, custodians, other agents, consultants, contractors and employees
of the Trust or the Trustees on such terms as they deem
appropriate;
(ee) To
invest part or all of the Trust Property (or part or all of the assets of any
Series), or to dispose of part or all of the Trust Property (or part or all of
the assets of any Series) and invest the proceeds of such disposition, in
interests issued by one or more other investment companies or pooled portfolios
(including investment by means of transfer of part or all of the Trust Property
in exchange for an interest or interests in such one or more investment
companies or pooled portfolios) all without any requirement of approval by
Shareholders. Any such other investment company or pooled portfolio
may (but need not) be a trust (formed under the laws of any state or
jurisdiction) which is classified as a partnership for federal income tax
purposes; and
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(ff) In general, to
carry on any other business in connection with or incidental to any of the
foregoing powers, to do everything necessary, suitable or proper for the
accomplishment of any purpose or the attainment of any object or the furtherance
of any power herein set forth, either alone or in association with others, and
to do every other act or thing incidental or appurtenant to or growing out of or
connected with the aforesaid business or purposes, objects or
powers.
The foregoing clauses shall be
construed both as objects and powers, and the foregoing enumeration of specific
powers shall not be held to limit or restrict in any manner the general powers
of the Trustees. Any action by one or more of the Trustees in their
capacity as such hereunder shall be deemed an action on behalf of the Trust or
the applicable Series or Class, and not an action in an individual
capacity.
No one dealing with the Trustees shall
be under any obligation to make any inquiry concerning the authority of the
Trustees, or to see to the application of any payments made or property
transferred to the Trustees or upon their order.
Section 4.2 Issuance and Repurchase of
Shares. The Trustees shall have the power to issue, sell,
repurchase, redeem, retire, cancel, acquire, hold, resell, reissue, dispose of,
exchange, and otherwise deal in Shares and, subject to the provisions set forth
in Article II and Article VII, to apply to any such repurchase,
retirement, cancellation or acquisition of Shares any funds or property of the
Trust, or the particular Series or Class of the Trust, with respect to which
such Shares are issued.
Section 4.3 Trustees and Officers as
Shareholders. Any Trustee, officer or other agent of the Trust
may acquire, own and dispose of Shares to the same extent as if such person were
not a Trustee, officer or agent; and the Trustees may issue and sell or cause to
be issued and sold Shares to and buy such Shares from any such person or any
firm or company in which such person invested, subject to the general
limitations herein contained as to the sale and purchase of such
Shares.
Section 4.4 Action by the Trustees and
Committees. The Trustees (and any committee thereof) may act
at a meeting held in person or in whole or in part by conference
telecommunications equipment. One-third, but not less than two, of
the Trustees shall constitute a quorum at any meeting unless there is only one
Trustee. Except as the Trustees may otherwise determine, one-third of
the members of any committee shall constitute a quorum at any
meeting. The vote of a majority of the Trustees (or committee
members) present at a meeting at which a quorum is present shall be the act of
the Trustees (or any committee thereof). The Trustees (and any
committee thereof) may also act by written consent signed by a majority of the
Trustees (or committee members). Regular meetings of the Trustees may
be held at such places and at such times as the Trustees may from time to time
determine. Special meetings of the Trustees (and meetings of any
committee thereof) may be called orally or in writing by the Chairman of the
Board of Trustees (or the chairman of any committee thereof) or by any two other
Trustees. Notice of the time, date and place of all meetings of the
Trustees (or any committee thereof) shall be given by the party calling the
meeting to each Trustee (or committee member) by telephone, telefax, telegram or
other electronic means sent to the person's home or business address at least
twenty-four hours in advance of the meeting or by written notice mailed to the
person's home or business address at least seventy-two hours in advance of the
meeting. Notice of all proposed written consents of Trustees (or
committees thereof) shall be given to each Trustee (or committee member) by
telephone, telefax, telegram, or first class mail sent to the person's home or
business address. Notice need not be given to any person who attends
a meeting without objecting to the lack of notice or who executes a written
consent or a written waiver of notice with respect to a
meeting. Written consents or waivers may be executed in one or more
counterparts. Execution of a written consent or waiver and delivery
thereof may be accomplished by telefax or other electronic means approved by the
Trustees.
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Section 4.5 Chairman of the
Trustees. The Trustees may appoint one of their number to be
Chairman of the Board of Trustees. The Chairman shall preside at all
meetings of the Trustees at which he is present and may be (but is not required
to be) the chief executive officer of the Trust.
Section 4.6 Principal
Transactions. Except to the extent prohibited by applicable
law, the Trustees may, on behalf of the Trust, buy any securities from or sell
any securities to, or lend any assets of the Trust to, any Trustee or officer of
the Trust or any firm of which any such Trustee or officer is a member acting as
principal, or have any such dealings with any Affiliated Person of the Trust,
investment adviser, investment sub-adviser, distributor or transfer agent
for the Trust or with any Interested Person of such Affiliated Person or other
person; and the Trust may employ any such Affiliated Person or other person, or
firm or company in which such Affiliated Person or other person is an Interested
Person, as broker, legal counsel, registrar, investment adviser,
investment sub-adviser, distributor, transfer agent, dividend disbursing
agent, custodian or in any other capacity upon customary terms.
ARTICLE
V
INVESTMENT
ADVISER, INVESTMENT SUB-ADVISER,
PRINCIPAL
UNDERWRITER, ADMINISTRATOR, TRANSFER AGENT,
CUSTODIAN AND OTHER
CONTRACTORS
Section 5.1 Certain
Contracts. Subject to compliance with the provisions of the
1940 Act, but notwithstanding any limitations of present and future law or
custom in regard to delegation of powers by trustees generally, the Trustees
may, at any time and from time to time and without limiting the generality of
their powers and authority otherwise set forth herein, enter into one or more
contracts with any one or more corporations, trusts, associations, partnerships,
limited partnerships, other type of organizations, or individuals to provide for
the performance and assumption of some or all of the following services, duties
and responsibilities to, for or of the Trust and/or the Trustees, and to provide
for the performance and assumption of such other services, duties and
responsibilities in addition to those set forth below as the Trustees may
determine to be appropriate:
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(a) Investment Adviser and
Investment Sub-Adviser. The Trustees may in their discretion,
from time to time, enter into an investment advisory or management contract or
contracts with respect to the Trust or any Series whereby the other party or
parties to such contract or contracts shall undertake to furnish the Trust with
such management, investment advisory, statistical and research facilities
and services and such other facilities and services, if any, and all upon such
terms and conditions, as the Trustees may in their discretion
determine. Notwithstanding any other provision of this Trust
Instrument, the Trustees may authorize any investment adviser (subject to such
general or specific instructions as the Trustees may from time to time adopt) to
effect purchases, sales or exchanges of portfolio securities, other investment
instruments of the Trust, or other Trust Property on behalf of the Trustees, or
may authorize any officer, agent, or Trustee to effect such purchases, sales or
exchanges pursuant to recommendations of the investment adviser (and all without
further action by the Trustees). Any such purchases, sales and
exchanges shall be deemed to have been authorized by the Trustees.
The Trustees may authorize, subject to
applicable requirements of the 1940 Act, the investment adviser to employ, from
time to time, one or more sub-advisers to perform such of the acts and services
of the investment adviser, and upon such terms and conditions, as may be agreed
upon between the investment adviser and sub-adviser. Any reference in
this Trust Instrument to the investment adviser shall be deemed to include such
sub-advisers, unless the context otherwise requires.
(b) Principal
Underwriter. The Trustees may in their discretion from time to
time enter into an exclusive or non-exclusive underwriting contract or contracts
providing for the sale of Shares, whereby the Trust may either agree to sell
Shares to the other party to the contract or appoint such other party its sales
agent for such Shares. In either case, the contract may also provide
for the repurchase or sale of Shares by such other party as principal or as
agent of the Trust.
(c) Administrator. The
Trustees may in their discretion from time to time enter into one or more
contracts whereby the other party or parties shall undertake to furnish the
Trust with administrative services. The contract or contracts shall
be on such terms and conditions as the Trustees may in their discretion
determine.
(d) Transfer
Agent. The Trustees may in their discretion from time to time
enter into one or more transfer agency and Shareholder service contracts whereby
the other party or parties shall undertake to furnish the Trustees with transfer
agency and Shareholder services. The contract or contracts shall be
on such terms and conditions as the Trustees may in their discretion
determine.
(e) Servicing
Agent. The Trustees may in their discretion from time to time
enter into one or more contracts whereby the other party or parties shall
undertake to furnish the Trust with Trust and/or Shareholder
services. The contract or contracts shall be on such terms and
conditions as the Trustees may in their discretion determine.
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(f) Fund
Accounting. The Trustees may in their discretion from time to
time enter into one or more contracts whereby the other party or parties
undertakes to handle all or any part of the Trust's accounting responsibilities,
whether with respect to the Trust's properties, Shareholders or
otherwise.
(g) Custodian and
Depository. The Trustees may in their discretion from time to
time enter into one or more contracts whereby the other party or parties
undertakes to act as depository for and to maintain custody of the property of
the Trust or any Series or Class and accounting records in connection
therewith.
(h) Parties to
Contract. Any contract described in this Article V hereof
may be entered into with any corporation, firm, partnership, trust or
association, although one or more of the Trustees or officers of the Trust may
be an officer, director, trustee, shareholder, or member of such other party to
the contract, and no such contract shall be invalidated or rendered void or
voidable by reason of the existence of any relationship, nor shall any person
holding such relationship be disqualified from voting on or executing the same
in his capacity as Shareholder and/or Trustee, nor shall any person holding such
relationship be liable merely by reason of such relationship for any loss or
expense to the Trust under or by reason of said contract or accountable for any
profit realized directly or indirectly therefrom, provided that the contract
when entered into was not inconsistent with the provisions of this
Article V. The same person (including a firm, corporation,
partnership, trust, or association) may be the other party to contracts entered
into pursuant to this Article V, and any individual may be financially
interested or otherwise affiliated with persons who are parties to any or all of
the contracts mentioned in this Section 5.1.
ARTICLE
VI
SHAREHOLDER VOTING POWERS
AND MEETINGS
Section 6.1 Voting. The
Shareholders shall have power to vote only: (a) for the election of one or more
Trustees in order to comply with the provisions of the 1940 Act (including
Section 16(a) thereof); (b) with respect to any contract entered into pursuant
to Article V to the extent required by the 1940 Act; (c) with respect to
termination of the Trust or a Series or Class thereof to the extent required by
applicable law; and (d) with respect to such additional matters relating to the
Trust as may be required by this Trust Instrument, the By-laws or any
registration of the Trust or Series as an investment company under the 1940 Act
with the Commission (or any successor agency) or as the Trustees may consider
necessary or desirable.
On each matter submitted to a vote of
Shareholders, unless the Trustees determine otherwise, all Shares of all Series
and Classes shall vote as a single class; provided, however, that: (a) as to any
matter with respect to which a separate vote of any Series or Class is required
by the 1940 Act or other applicable law or is required by attributes applicable
to any Series or Class, such requirements as to a separate vote by that Series
or Class shall apply; (b) unless the Trustees determine that this clause (b)
shall not apply in a particular case, to the extent that a matter referred to in
clause (a) above affects more than one Series or Class and the interests of each
such Series or Class in the matter are identical, then the Shares of all such
affected Series or Classes shall vote as a single class; and (c) as to any
matter which does not affect the interests of a particular Series or Class, only
the holders of Shares of the one or more affected Series or Classes shall be
entitled to vote. Each whole Share shall be entitled to one vote as
to any matter on which it is entitled to vote, and each fractional Share shall
be entitled to a proportionate fractional vote. There shall be no
cumulative voting in the election of Trustees. Shares may be voted in
person or by proxy or in any manner provided for in the By-laws. A
proxy may be given in writing, by telefax, other electronic means or in any
other manner provided for in the By-laws. Anything in this Trust
Instrument to the contrary notwithstanding, in the event a proposal by anyone
other than the officers or Trustees of the Trust is submitted to a vote of the
Shareholders of the Trust or one or more Series or Classes thereof, or in the
event of any proxy contest or proxy solicitation or proposal in opposition to
any proposal by the officers or Trustees of the Trust, Shares may be voted only
in person or by written proxy. Until Shares are issued, the Trustees
may exercise all rights of Shareholders and may take any action required or
permitted by law, this Trust Instrument or any of the By-laws of the Trust to be
taken by Shareholders.
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Section 6.2 Meetings. Meetings
of Shareholders (including meetings involving only the holders of Shares of one
or more but less than all Series or Classes) may be called by the Trustees from
time to time to be held at such place within or without the State of Delaware,
and on such date as may be designated in the call thereof for the purpose of
taking action upon any matter as to which the vote or authority of the
Shareholders is required or permitted as provided in Section
6.1. Special meetings of the Shareholders of any Series may be called
by the Trustees. To the extent required by the 1940 Act, special
meetings of the Shareholders for the purpose of removing one or more Trustees
shall be called by the Trustees upon the written request of Shareholders owning
at least 10 percent (10%) of the Outstanding Shares entitled to
vote. Notice shall be sent, postage prepaid, by mail or such other
means determined by the Trustees, at least 7 days prior to any such
meeting.
Section 6.3 Quorum and Required
Vote. Unless a larger percentage is required by law, by any
provision of this Trust Instrument or by the Trustees, one-third of the Shares
entitled to vote in person or by proxy on a particular matter shall be a quorum
for the transaction of business at a Shareholders' meeting with respect to that
matter. Any lesser number shall be sufficient for
adjournments. Any adjourned session or sessions may be held without
the necessity of further notice. Except when a larger vote is
required by law, by any provision of this Trust Instrument or by the Trustees, a
majority of the Shares voted in person or by proxy on a particular matter at a
meeting at which a quorum is present shall decide any questions with respect to
that matter and a plurality shall elect a Trustee.
Section 6.4 Action by Written
Consent. Subject to the provisions of the 1940 Act and other
applicable law, any action taken by Shareholders may be taken without a meeting
if a majority of the Shares entitled to vote on the matter (or such larger
proportion thereof as shall be required by law, by any provision of this Trust
Instrument or by the Trustees) consent to the action in writing. Such
consent shall be treated for all purposes as a vote taken at a meeting of
Shareholders. The Trustees may adopt additional rules and procedures
regarding the taking of Shareholder action by written consents.
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ARTICLE
VII
DISTRIBUTIONS AND
REPURCHASES
Section 7.1 Distributions.
(a) The Trustees
may from time to time declare and pay dividends or other distributions with
respect to any Series or Class. The amount of such dividends or
distributions and the payment of them and whether they are in cash or any other
Trust Property shall be wholly in the discretion of the Trustees.
(b) Dividends and
other distributions may be paid or made to the Shareholders of record at the
time of declaring a dividend or other distribution or among the Shareholders of
record at such other date or time or dates or times as the Trustees shall
determine, which dividends or distributions, at the election of the Trustees,
may be paid pursuant to a standing resolution or resolutions adopted only once
or with such frequency as the Trustees may determine. All dividends
and other distributions on Shares of a particular Class shall be distributed pro
rata to the Shareholders of that Series or Class in proportion to the number of
Shares of that Series or Class they held on the record date established for such
payment, except that in connection with any dividend or distribution program or
procedure the Trustees may determine that no dividend or distribution shall be
payable on Shares as to which the Shareholder's purchase order and/or payment in
the prescribed form has not been received by the time or times established by
the Trustees under such program or procedure. The Trustees may adopt
and offer to Shareholders such dividend reinvestment plans, cash dividend payout
plans or related plans as the Trustees shall deem appropriate.
(c) Anything in
this Trust Instrument to the contrary notwithstanding, the Trustees may at any
time declare and distribute a stock dividend pro rata among the Shareholders of
a particular Series, or Class thereof, as of the record date of that
Series or Class fixed as provided in Section (b) hereof. The
Trustees shall have full discretion, to the extent not inconsistent with the
1940 Act, to determine which items shall be treated as income and which items as
capital; and each such determination and allocation shall be conclusive and
binding upon the Shareholders.
Section 7.2 Transfer of
Shares.
(a) Any
Shares held by a Shareholder may be transferred only (1) by operation of
law pursuant to the death, bankruptcy, insolvency, adjudicated incompetence, or
dissolution of the Shareholder or (2) under certain limited instances set
out in this Trust Instrument, with the consent of the Trustees (which may be
withheld in the Trustees’ sole and absolute discretion). If a Shareholder
transfers Shares with the approval of the Trustees, the Trustees will promptly
take all necessary actions so that each transferee or successor to whom or to
which the Shares are transferred is admitted to the Trust as a Shareholder. The
admission of any transferee as a substituted Shareholder will be effective upon
the execution and delivery by, or on behalf of, the substituted Shareholder of
an investor certification form. Each Shareholder and transferee agrees to pay
all expenses, including attorneys’ and accountants’ fees, incurred by the Trust
in connection with any transfer. In connection with any request to transfer
Shares, the Trust may require the Shareholder requesting the transfer to obtain,
at the Shareholder’s expense, an opinion of counsel selected by the Trustees as
to such matters as the Trustees may reasonably request. If a Shareholder
transfers all of its Shares, it will not cease to be a Shareholder unless and
until the transferee is admitted to the Trust as a substituted Shareholder in
accordance with this Section 7.2(a). Any transfer of Shares permitted under
this Section 7.2(a) will be effected in accordance with the provisions of
Section 2.4 hereof. Pursuant to Section 4.1(j) hereof, the Trustees
hereby delegate to the officers of the Trust all power and authority to approve
and effect transfers of Shares pursuant to this
Section 7.2(a).
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(b) Each
Shareholder will indemnify and hold harmless the Trust, the Trustees, each other
Shareholder and any Affiliated Person of the Trust, the Trustees, the investment
adviser and each of the other Shareholders against all losses, claims, damages,
liabilities, costs and expenses (including legal or other expenses incurred in
investigating or defending against any losses, claims, damages, liabilities,
costs and expenses or any judgments, fines and amounts paid in settlement),
joint or several, to which these Persons may become subject by reason of or
arising from (1) any transfer made by the Shareholder in violation of this
Section 7.2 and (2) any misrepresentation by the transferring
Shareholder or substituted Shareholder in connection with the transfer. A
Shareholder transferring Shares may be charged reasonable expenses, including
attorneys’ and accountants’ fees, incurred by the Trust in connection with the
transfer, by setting off such charges due from such Shareholder from declared
but unpaid dividends or distributions owed such Shareholder and/or by reducing
the number of shares in the account of such Shareholder by that number of full
and/or fractional Shares which represents the outstanding amount of such charges
due from such Shareholder.
Section 7.3 Repurchases and
Redemptions.
(a)
Except as otherwise provided in this Trust Instrument, no Shareholder or other
person holding Shares will have the right to withdraw or tender Shares to the
Trust for repurchase. The Trustees may, from time to time, in their complete and
exclusive discretion and on terms and conditions as they may determine, cause
the Trust to repurchase Shares in accordance with written tenders. In
determining whether to cause the Trust to repurchase Shares, pursuant to written
tenders, the Trustees will consider the following factors, among
others:
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(i)
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the
recommendation of any investment
adviser;
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(ii)
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whether
any Shareholders have requested to tender Shares or portions thereof to
the Trust;
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(iii)
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the
liquidity of the Trust’s assets (including fees and costs associated with
withdrawing from investments);
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(iv)
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the
investment plans and working capital requirements of the
Trust;
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(v)
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the
relative economies of scale with respect to the size of the
Trust;
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(vi)
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the
history of the Trust in repurchasing Shares or portions
thereof;
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(vii)
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the
availability of information as to the value of the Trust’s
assets;
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(viii)
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the
economic condition of the securities markets and the economy generally as
well as political, national or international developments or current
affairs; and
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(ix)
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the
anticipated tax consequences to the Trust of any proposed repurchases of
Shares or portions thereof.
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The
Trustees will cause the Trust to repurchase Shares in accordance with written
tenders only on terms fair to the Trust and to all Shareholders.
(b) The
Trustees may cause the Trust to repurchase or redeem Shares of a Shareholder or
any person acquiring Shares from or through a Shareholder, on terms fair to the
Trust and to the Shareholder or person acquiring Shares from or through such
Shareholder, in the event that the Trustees, in their sole discretion, determine
or have reason to believe that:
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(i)
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the
Shares have been transferred in violation of Section 7.2 of this
Trust Instrument, or the Shares have vested in any person other than by
operation of law as the result of the death, dissolution, bankruptcy,
insolvency or adjudicated incompetence of the
Shareholder;
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(ii)
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ownership
of the Shares by a Shareholder or other person is likely to cause the
Trust to be in violation of, or require registration of any Shares under,
or subject the Trust to additional registration or regulation under, the
securities, commodities or other laws of the United States or any other
relevant jurisdiction;
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(iii)
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continued
ownership of the Shares may be harmful or injurious to the business or
reputation of the Trust, the Trustees or the investment adviser or any of
their Affiliated Persons, or may subject the Trust or any of the
Shareholders to an undue risk of adverse tax or other fiscal or regulatory
consequences;
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(iv)
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any
of the representations and warranties made by a Shareholder or other
person in connection with the acquisition of the Shares was not true when
made or has ceased to be true;
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(v)
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with
respect to a Shareholder subject to special regulatory or compliance
requirements, such as those imposed by the Employee Retirement Income
Security Act of 1974, as amended, the Bank Holding Company Act or certain
Federal Communication Commission regulations, such Shareholder will likely
be subject to additional regulatory or compliance requirements by virtue
of continuing to hold Shares; or
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(vi)
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it
would be in the best interests of the Trust, as determined by the
Trustees, for the Trust to repurchase the
Shares.
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(c)
Shares will be repurchased at their Net Asset Value determined as of the
Valuation Date. Shareholders tendering Shares for repurchase will be
asked to give written notice of their intent to do so by the date specified in
the notice describing the terms of the applicable repurchase offer, which date
will be approximately 65 days prior to the date of repurchase by the
Trust. Shareholders who tender may not have all of the tendered
Shares repurchased by the Trust. If over-subscriptions occur, the
Trust may elect to repurchase less than the full amount that a Shareholder
requests to be repurchased. If a repurchase offer is oversubscribed, the Trust
may repurchase only a pro rata portion of the amount tendered by each
Shareholder. The Trustees, in their complete and absolute discretion, may under
certain circumstances elect to postpone, suspend or terminate an offer to
repurchase Shares.
(d) The
Trust will pay the value of the Shares to be repurchased within approximately 90
days after the Valuation Date. Payment of the purchase price for
Shares will consist of cash or a promissory note, which will be non-transferable
and need not bear interest, in an amount equal to the percentage, as may be
determined by the Trustees, of the estimated unaudited net asset value of the
Shares repurchased by the Trust determined as of the Valuation Date (or as
discussed below, 95% of such value if all Shares owned by a Shareholder are
repurchased). This amount will be subject to adjustment within 45 days after
completion of the annual audit of the Trust's financial statements for the
fiscal year in which the repurchase is effected. To mitigate any effects of
this, if all Shares owned by a Shareholder are repurchased, the Shareholder will
receive an initial payment equal to 95% of the estimated value of the Shares
(after adjusting for fees, expenses, reserves or other allocations or redemption
charges) within approximately 90 days after the Valuation Date, subject to audit
adjustment, and the balance due will be determined and paid within 45 days after
completion of the Trust’s annual audit. Notwithstanding anything to the contrary
in this Section 7.3, the Trustees, in their discretion, may cause the Trust
to pay all or any portion of the repurchase price in Securities in kind (or any
combination of Securities in kind and cash) having a value, determined as of the
date of repurchase, equal to the amount to be repurchased. All repurchases of
Shares will be subject to any and all conditions as the Trustees may impose in
their sole discretion. The Trustees may, in their discretion, cause the Trust to
repurchase all of a Shareholder’s Shares, if the Net Asset Value of the
Shareholder’s Shares, as a result of repurchase or transfer requests by the
Shareholder, is less than $50,000 or such other minimum amount established by
the Trustees from time to time in their sole discretion. Subject to the
procedures of this Section 7.3, the amount due to any Shareholder whose
Shares are repurchased will be equal to the Net Asset Value of the Shareholder’s
Shares, as of the Valuation Date. If all of a Shareholder’s Shares are
repurchased, that Shareholder will cease to be a Shareholder.
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(e) Notwithstanding
the foregoing, the Trust may postpone payment of the repurchase price and may
suspend repurchases during any period or at any time when and to the extent
permissible under the 1940 Act.
(f) In the event
that a Shareholder shall submit a request for the redemption of a greater number
of Shares than are then allocated to such Shareholder, such request shall not be
honored.
Section 7.4 Net Asset
Value. The Net Asset Value per Share (including of any Series
or Class thereof) shall be the quotient obtained by dividing the value of the
net assets of the Trust (or the applicable Series or Class (being the value of
the assets belonging to that Series or Class less the liabilities belonging to
that Series or Class)) by the total number of Shares of the Trust or that Series
or Class outstanding, all determined in accordance with the methods and
procedures, including without limitation those with respect to rounding,
established by the Trustees from time to time.
ARTICLE
VIII
LIMITATION OF LIABILITY AND
INDEMNIFICATION
Section 8.1 Limitation of
Liability. Neither a Trustee nor an officer of the Trust, when
acting in such capacity, shall be personally liable to any person other than the
Trust or a beneficial owner for any act, omission or obligation of the Trust,
any Trustee or any officer of the Trust. Neither a Trustee nor an
officer of the Trust shall be liable for any act or omission in his capacity as
Trustee or as an officer of the Trust, or for any act or omission of any other
officer or any employee of the Trust or of any other person or party, provided
that nothing contained herein or in the Act shall protect any Trustee or officer
against any liability to the Trust or to Shareholders to which he would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of Trustee or the duties of such officer hereunder.
Section 8.2 Indemnification. The
Trust shall indemnify each of its Trustees and officers and persons who serve at
the Trust's request as directors, officers or trustees of another organization
in which the Trust has any interest as a shareholder, creditor, or otherwise,
and may indemnify any trustee, director or officer of a predecessor organization
(each a "Covered Person"), against all liabilities and expenses (including
amounts paid in satisfaction of judgments, in compromise, as fines and
penalties, and expenses including reasonable accountants' and counsel fees)
reasonably incurred in connection with the defense or disposition of any action,
suit or other proceeding, whether civil or criminal, before any court or
administrative or legislative body, in which he may be involved or with which he
may be threatened, while as a Covered Person or thereafter, by reason of being
or having been such a Covered Person, except that no Covered Person shall be
indemnified against any liability to the Trust or its Shareholders to which such
Covered Person would otherwise be subject by reason of bad faith, willful
misfeasance, gross negligence or reckless disregard of his duties involved in
the conduct of such Covered Person's office (such willful misfeasance, bad
faith, gross negligence or reckless disregard being referred to herein as
"Disabling Conduct"). Expenses, including accountants' and counsel
fees so incurred by any such Covered Person (but excluding amounts paid in
satisfaction of judgments, in compromise or as fines or penalties), may be paid
from time to time by the Trust in advance of the final disposition of any such
action, suit or proceeding upon receipt of (a) an undertaking by or on behalf of
such Covered Person to repay amounts so paid to the Trust if it is ultimately
determined that indemnification of such expenses is not authorized under this
Article VIII and either (b) such Covered Person provides security for such
undertaking, (c) the Trust is insured against losses arising by reason of such
payment, or (d) a majority of a quorum of disinterested, non-party Trustees, or
independent legal counsel in a written opinion, determines, based on a review of
readily available facts, that there is reason to believe that such Covered
Person ultimately will be found entitled to indemnification.
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Section 8.3 Indemnification
Determinations. Indemnification of a Covered Person pursuant
to Section 8.2 shall be made if (a) the court or body before whom the proceeding
is brought determines, in a final decision on the merits, that such Covered
Person was not liable by reason of Disabling Conduct or (b) in the absence of
such a determination, a majority of a quorum of disinterested, non-party
Trustees or independent legal counsel in a written opinion make a reasonable
determination, based upon a review of the facts, that such Covered Person was
not liable by reason of Disabling Conduct.
Section 8.4 Indemnification Not
Exclusive. The right of indemnification provided by this
Article VIII shall not be exclusive of or affect any other rights to which any
such Covered Person may be entitled. As used in this Article VIII,
"Covered Person" shall include such person's heirs, executors and
administrators, and a "disinterested, non-party Trustee" is a Trustee who is
neither an Interested Person of the Trust nor a party to the proceeding in
question.
Section 8.5 Shareholders. Each
Shareholder of the Trust and of each Series or Class shall not be
personally liable for the debts, liabilities, obligations and expenses incurred
by, contracted for, or otherwise existing with respect to, the Trust or by or on
behalf of any Series or Class. The Trustees shall have no power to
bind any Shareholder personally or to call upon any Shareholder for the payment
of any sum of money or assessment whatsoever other than such as the Shareholder
may at any time personally agree to pay pursuant to terms hereof or
by way of subscription for any Shares or otherwise.
In case any Shareholder or former
Shareholder of any Series or Class shall be held to be personally liable solely
by reason of his being or having been a Shareholder of such Series or Class and
not because of his acts or omissions or for some other reason, the Shareholder
or former Shareholder (or his heirs, executors, administrators or other legal
representatives, or, in the case of a corporation or other entity, its corporate
or other general successor) shall be entitled out of the assets belonging to the
applicable Series or Class to be held harmless from and indemnified against all
loss and expense arising from such liability. The Trust, on behalf of
the affected Series, shall, upon request by the Shareholder, assume the defense
of any claim made against the Shareholder for any act or obligation of the
Series or Class and satisfy any judgment thereon from the assets of the Series
or Class. The indemnification and reimbursement required by the
preceding sentence shall be made only out of assets of the one or more Series or
Classes whose Shares were held by said Shareholder at the time the act or event
occurred which gave rise to the claim against or liability of said
Shareholder. The rights accruing to a Shareholder under this Section
shall not impair any other right to which such Shareholder may be lawfully
entitled, nor shall anything herein contained restrict the right of the Trust or
any Series or Class thereof to indemnify or reimburse a Shareholder in any
appropriate situation even though not specifically provided herein.
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ARTICLE
IX
MISCELLANEOUS
Section 9.1 Trust Not a
Partnership. It is hereby expressly declared that a trust and
not a partnership is created hereby. All persons extending credit to,
contracting with or having any claim against any Series of the Trust or any
Class within any Series shall look only to the assets of such Series or Class
for payment under such credit, contract or claim; and neither the Shareholders
nor the Trustees, nor any of the Trust's officers, employees or agents, whether
past, present or future, shall be personally liable therefor. Every
note, bond, contract or other undertaking issued by or on behalf of the Trust or
the Trustees relating to the Trust or to a Series or Class shall include
a recitation limiting the obligations represented thereby to the
Trust or to one or more Series or Classes and its or their assets (but the
omission of such a recitation shall not operate to bind any Shareholder,
Trustee, officer, employee or agent of the Trust).
Section 9.2 Trustees' Good Faith Action,
Expert Advice, No Bond or Surety. The exercise by the Trustees
of their powers and discretions hereunder shall be binding upon everyone
interested. Subject to the provisions of Article VIII: (i)
the Trustees shall not be responsible or liable in any event for any neglect or
wrongdoing of any officer, agent, employee, consultant, adviser, administrator,
distributor or principal underwriter, custodian or transfer, dividend
disbursing, Shareholder servicing or accounting agent of the Trust, nor shall
any Trustee be responsible for the act or omission of any other Trustee; (ii)
the Trustees may take advice of counsel or other experts with respect to the
meaning and operation of this Trust Instrument and their duties as Trustees, and
shall be under no liability for any act or omission in accordance with such
advice or for failing to follow such advice; and (iii) in discharging their
duties, the Trustees, when acting in good faith, shall be entitled to rely upon
the books of account of the Trust and upon written reports made to the Trustees
by any officer appointed by them, any independent public accountant, and (with
respect to the subject matter of the contract involved) any officer, partner or
responsible employee of a contracting party appointed by the
Trustees. The Trustees as such shall not be required to give any bond
or surety or any other security for the performance of their
duties.
Section 9.3 Establishment of Record
Dates. The Trustees may close the Share transfer books of the
Trust for a period not exceeding one hundred twenty (120) days preceding the
date of any meeting of Shareholders, or the date for the payment of any
dividends or other distributions, or the date for the allotment of rights, or
the date when any change or conversion or exchange of Shares shall go into
effect; or in lieu of closing the stock transfer books as aforesaid, the
Trustees may fix in advance a date, not exceeding one hundred twenty (120) days
preceding the date of any meeting of Shareholders, or the date for payment of
any dividend or other distribution, or the date for the allotment of rights, or
the date when any change or conversion or exchange of Shares shall go into
effect, as a record date for the determination of the Shareholders entitled to
notice of, and to vote at, any such meeting, or entitled to receive payment of
any such dividend or other distribution, or to any such allotment of rights, or
to exercise the rights in respect of any such change, conversion or exchange of
Shares, and in such case such Shareholders and only such Shareholders as shall
be Shareholders of record on the date so fixed shall be entitled to such notice
of, and to vote at, such meeting, or to receive payment of such dividend or
other distribution, or to receive such allotment or rights, or to exercise such
rights, as the case may be, notwithstanding any transfer of any Shares on the
books of the Trust after any such record date fixed as aforesaid.
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Section 9.4 Dissolution and Termination
of Trust or Series.
(a) This Trust
shall continue without limitation of time but subject to the provisions of
sub-sections (b) and (c) of this Section 9.4.
(b) Notwithstanding
anything in Section 9.5 to the contrary, the Trustees may without Shareholder
approval (unless such approval is required by the 0000 Xxx) in dissolution of
the Trust or an applicable Series or Class liquidate, reorganize or dissolve the
Trust or an applicable Series or Class in any manner or fashion not inconsistent
with applicable law, including, without limitation,
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(i)
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sell
and convey all or substantially all of the assets of the Trust or any
Series or Class to another trust, partnership, limited liability company,
association or corporation, or to a separate Series or Class of shares
thereof, organized under the laws of any state or jurisdiction, for
adequate consideration which may include the assumption of all outstanding
obligations, taxes and other liabilities, accrued or contingent, of the
Trust or any Series or Class, and which may include shares of beneficial
interest, stock or other ownership interests of such trust, partnership,
limited liability company, association or corporation or of a series
thereof; or
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(ii)
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at
any time sell and convert into money all of the assets of the Trust or any
Series or Class.
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Following a sale or conversion in
accordance with the foregoing sub-section 9.4(b)(i) or (ii), and upon making
reasonable provision, in the determination of the Trustees, for the payment of
all liabilities of the Trust or the affected Series or Class as required by
applicable law, by such assumption or otherwise, the Shareholders of each Class
of a Series involved in such sale or conversion shall be entitled to receive, as
a Class, when and as declared by the Trustees, the excess of the assets
belonging to that Series that are allocated to such Class over the liabilities
belonging to that Series that are allocated to such Class. The assets
so distributable to the Shareholders of any particular Class of a Series shall
be distributed among such Shareholders in proportion to the number of Shares of
that Class held by them and recorded on the books of the Trust. In
the event a Series is not divided into Classes, the foregoing provisions shall
be applied on a Series by Series basis.
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(c) Upon completion
of the distribution of the remaining proceeds or the remaining assets as
provided in sub-section (b), the Trust (in the case of a sale or conversion with
respect to the Trust as a whole or the last remaining Series) or any affected
Series or Class shall terminate and the Trustees and the Trust or any affected
Series or Class shall be discharged of any and all further liabilities and
duties hereunder and the right, title and interest of all parties with respect
to the Trust or such affected Series or Class shall be cancelled and
discharged.
Upon termination of the Trust,
following completion of winding up of its business, the Trustees shall cause a
certificate of cancellation of the Trust's certificate of trust to be filed
in accordance with the Act, which certificate of cancellation may be signed by
any one Trustee.
Section 9.5 Merger, Consolidation,
Incorporation. Anything in this Trust Instrument to the
contrary notwithstanding, the Trustees, in order to change the form of
organization and/or domicile of the Trust, may, without prior Shareholder
approval, (i) cause the Trust to merge or consolidate with or into one or more
trusts, partnerships, limited liability companies, associations or corporations
which is or are formed, organized or existing under the laws of a state,
commonwealth possession or colony of the United States, or (ii) cause the Trust
to incorporate under the laws of Delaware. Any agreement of
merger or consolidation or certificate of merger may be signed by a majority of
the Trustees. Pursuant to and in accordance with the provisions of
Section 3815(f) of the Act, and notwithstanding anything to the contrary
contained in this Trust Instrument, an agreement of any merger or consolidation
approved in accordance with this Section 9.5 may effect any amendment to the
Trust Instrument or effect the adoption of a new trust instrument of the Trust
if it is the surviving or resulting trust in the merger or
consolidation. Any merger or consolidation of the Trust other than as
described in the foregoing provisions of this Section 9.5 shall, in addition to
the approval of the Trustees, require a Majority Shareholder
Vote. Nothing in this Section 9.5 shall require, however, Shareholder
approval of any transaction whereby the Trust or any Series thereof acquires or
assumes all or any part of the assets and liabilities of any other
entity.
Section 9.6 Filing of Copies,
References, Headings. The original or a copy of this Trust
Instrument and of each amendment hereof or Trust Instrument supplemental hereto
shall be kept at the office of the Trust where it may be inspected by any
Shareholder. Anyone dealing with the Trust may rely on a certificate
by an officer or Trustee of the Trust as to whether or not any such amendments
or supplements have been made and as to any matters in connection with the Trust
hereunder, and with the same effect as if it were the original, may rely on a
copy certified by an officer or Trustee of the Trust to be a copy of this Trust
Instrument or of any such amendment or supplemental Trust
Instrument. In this Trust Instrument or in any such amendment or
supplemental Trust Instrument, references to this Trust Instrument, and all
expressions like "herein," "hereof" and "hereunder," shall be deemed to refer to
this Trust Instrument as amended or affected by any such supplemental Trust
Instrument. All expressions like "his," "he" and "him," shall be
deemed to include the feminine and neuter, as well as masculine,
genders. Headings are placed herein for convenience of reference only
and in case of any conflict, the text of this Trust Instrument rather than the
headings, shall control. This Trust Instrument may be executed in any
number of counterparts each of which shall be deemed an original.
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Section 9.7 Applicable
Law. The trust set forth in this instrument is made in the
State of Delaware, and the Trust and this Trust Instrument, and the rights and
obligations of the Trustees and Shareholders hereunder, are to be governed by
and construed and administered according to the Act and the laws of said State;
provided, however, that there shall not be applicable to the Trust, the Trustees
or this Trust Instrument (a) the provisions of Section 3540 of Title 12 of the
Delaware Code or (b) any provisions of the laws (statutory or common) of the
State of Delaware (other than the Act) pertaining to trusts which relate to or
regulate: (i) the filing with any court or governmental body or agency of
trustee accounts or schedules of trustee fees and charges, (ii) affirmative
requirements to post bonds for trustees, officers, agents or employees of a
trust, (iii) the necessity for obtaining court or other governmental approval
concerning the acquisition, holding or disposition of real or personal property,
(iv) fees or other sums payable to trustees, officers, agents or employees of a
trust, (v) the allocation of receipts and expenditures to income or principal,
(vi) restrictions or limitations on the permissible nature, amount or
concentration of trust investments or requirements relating to the titling,
storage or other manner of holding of trust assets, or (vii) the establishment
of fiduciary or other standards or responsibilities or limitations on the acts
or powers of trustees, which are inconsistent with the limitations or
liabilities or authorities and powers of the Trustees set forth or referenced in
this Trust Instrument. The Trust shall be of the type commonly called
a "statutory trust," and without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a trust under
Delaware law. The Trust specifically reserves the right to exercise
any of the powers or privileges afforded to trusts or actions that may be
engaged in by trusts under the Act, and the absence of a specific reference
herein to any such power, privilege or action shall not imply that the Trust may
not exercise such power or privilege or take such actions.
Section 9.8 Amendments. Except
as specifically provided herein, the Trustees may, without Shareholder vote,
amend or otherwise supplement this Trust Instrument by making an amendment, a
Trust Instrument supplemental hereto or an amended and restated trust
instrument. Shareholders shall have the right to vote: (i) on any
amendment which would affect their right to vote granted in Section 6.1, (ii) on
any amendment to this Section 9.8, (iii) on any amendment for which such vote is
required by law and (iv) on any amendment submitted to them by the
Trustees. Any amendment required or permitted to be submitted to
Shareholders which, as the Trustees determine, shall affect the Shareholders of
one or more Series or Classes shall be authorized by vote of the Shareholders of
each Series or Class affected and no vote of shareholders of a Series or Class
not affected shall be required. Anything in this Trust Instrument to
the contrary notwithstanding, any amendment to Article VIII hereof shall
not limit the rights to indemnification or insurance provided therein with
respect to action or omission of any persons protected thereby prior to such
amendment.
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Section 9.9 Fiscal
Year. The fiscal year of the Trust shall end on a specified
date as determined from time to time by the Trustees.
Section 9.10 Provisions in Conflict with
Law. The provisions of this Trust Instrument are severable,
and if the Trustees shall determine, with the advice of counsel, that any of
such provisions is in conflict with the 1940 Act, the regulated investment
company provisions of the Internal Revenue Code or with other applicable laws
and regulations, the conflicting provision shall be deemed never to have
constituted a part of this Trust Instrument; provided, however, that such
determination shall not affect any of the remaining provisions of this Trust
Instrument or render invalid or improper any action taken or omitted prior to
such determination. If any provision of this Trust Instrument shall
be held invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provisions in any other jurisdiction or any
other provision of this Trust Instrument in any jurisdiction.
Section 9.11 Allocation of Certain
Expenses. Each Shareholder will, at the discretion of the
Trustees, indemnify the Trust against all expenses and losses resulting from
indebtedness incurred in connection with facilitating (i) requests pending
receipt of the collected funds from investments sold on the date of such
Shareholder's redemption request; (ii) redemption requests from such Shareholder
who has also notified the Trust of its intention to deposit funds in its
accounts on the date of said redemption request; or (iii) the purchase of
investments pending receipt of collected funds from such Shareholder who has
notified the Trust of its intention to deposit funds in its accounts on the date
of the purchase of the investments.
IN WITNESS WHEREOF, the undersigned,
being the Trustee of the Trust, has executed this Declaration of Trust as of the
10th
day of March, 2009.
/s/ Xxxxx X.
Xxxxxxx
not
individually
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