BLACKSTONE ALTERNATIVE ALPHA
FUND II
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF
TRUST
THIS AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF
TRUST made at Boston, Massachusetts, this
26th day of August 2016, amends and restates
in its entirety the Agreement and Declaration
of Trust of Blackstone Alternative Alpha
Fund II dated January 10, 2013, as amended
by Amendment No. 1 dated September 18,
2013. This Amended and Restated
Agreement and Declaration of Trust shall be
effective upon filing with the Secretary of The
Commonwealth of Massachusetts:
WITNESSETH that
WHEREAS, this Trust has been
formed to carry on the business of an
investment company; and
WHEREAS, the Trustees have agreed
to manage all property coming into their
hands as trustees of a Massachusetts
voluntary association with transferable shares
in accordance with the provisions hereinafter
set forth;
NOW, THEREFORE, the Trustees
hereby declare that they will hold all cash,
securities and other assets, which they may
from time to time acquire in any manner as
Trustees hereunder, IN TRUST to manage
and dispose of the same upon the following
terms and conditions for the benefit of the
holders from time to time of Shares in this
Trust as hereinafter set forth.
ARTICLE I
Name and Definitions
Name
Section 1. This Trust shall be known
as "Blackstone Alternative Alpha Fund II",
and the Trustees shall conduct the business of
the Trust under that name or any other name
as they may from time to time determine.
Definitions
Section 2. Whenever used herein,
unless otherwise required by the context or
specifically provided:
(a) "Trust" refers to the
Massachusetts business trust
established by this Agreement and
Declaration of Trust, as amended from
time to time;
(b) "Trustees" refers to the
Trustees of the Trust named herein or
elected in accordance with Article IV
hereof;
(c) "Shares" means the equal
proportionate transferable units of
interest into which the beneficial
interest in the Trust shall be divided
from time to time or, if more than one
Series or Class of Shares is authorized
by the Trustees, the equal
proportionate transferable units into
which each Series or Class of Shares
shall be divided from time to time;
(d) "Shareholder" means a
record owner of Shares;
(e) "1940 Act" refers to the
Investment Company Act of 1940 and
the Rules and Regulations thereunder,
all as amended from time to time;
(f) The terms "Affiliated
Person", "Assignment",
"Commission", "Interested Person",
"Principal Underwriter" and "Majority
Shareholder Vote" (the sixty-seven
percent (67%) or fifty percent (50%)
requirement of the third sentence of
Section 2(a)(42) of the 1940 Act,
whichever may be applicable) shall
have the meanings given them in the
1940 Act;
(g) "Declaration of Trust"
shall mean this Agreement and
Declaration of Trust, as amended or
restated from time to time;
(h) "By-Laws" shall mean the
By-Laws of the Trust, as amended
from time to time;
(i) "Series" or "Series of
Shares" refers to the one or more
separate investment portfolios of the
Trust into which the assets and
liabilities of the Trust may be divided
and the Shares of the Trust
representing the beneficial interest of
Shareholders in such respective
portfolios;
(j) "Class" or "Class of
Shares" refers to the division of
Shares representing any Series into
two or more Classes as provided in
Article III, Section 1 hereof; and
(k) "Continuing Trustee" shall
mean any Trustee who:
(i) is not a person
or an Affiliated
Person of a
person who
enters or
proposes to
enter into a
transaction with
the Trust
pursuant to
Article V,
Section 6 of this
Declaration of
Trust and has
been a Trustee
for a period of
at least twelve
months (or
since the
commencement
of the Trust's
operations, if
less than twelve
months),
(ii) is a successor to
a Continuing
Trustee who is
not a person or
an Affiliated
Person of a
person who
enters or
proposes to
enter into a
transaction with
the Trust
pursuant to
Article V,
Section 6 of this
Declaration of
Trust and is
recommended
to succeed a
Continuing
Trustee by a
majority of the
Continuing
Trustees then
Trustees,
(iii) is elected to the
Board of
Trustees by the
Trustees and is
elected to be a
Continuing
Trustee by a
majority of the
Continuing
Trustees then
on the Board of
Trustees, or
(iv) prior to the first
sale of Shares
pursuant to an
initial registered
public offering
only, serves as a
Trustee.
(l) A "direct" shareholder
claim shall refer to (i) a claim based
upon alleged violations of a
Shareholder's individual rights distinct
from any harm to the Trust or a Series
or other individual Shareholders,
including a particular Shareholder's
voting rights, rights to a dividend
payment, rights to inspect books and
records, or other similar rights
personal to the Shareholder and
distinct from any harm to the Trust or
a Series or other individual
shareholders; and (ii) a claim for
which a direct shareholder action is
expressly provided under the U.S.
federal securities laws; and
(m) A "derivative"
shareholder claim shall refer to any
claim asserted by a Shareholder other
than a "direct" claim, including,
without limitation, any claims
purporting to be brought on behalf of
the Trust or a Series or other
individual Shareholders involving any
alleged harm to the Trust or a Series
or to other individual Shareholders.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to provide
investors a managed investment primarily in
securities, debt instruments and other
instruments and rights of a financial character
(which may include shares or interests in
other investment funds, whether or not
registered under the 0000 Xxx) and to carry on
such other business as the Trustees may from
time to time determine pursuant to their
authority under this Declaration of Trust.
ARTICLE III
Shares
Division of Beneficial Interest
Section 1. The Shares of the Trust
may be issued in one or more Series as the
Trustees may, without Shareholder approval,
authorize. Each Series shall be preferred over
all other Series in respect of the assets
specifically allocated to that Series within the
meaning of the 1940 Act and shall represent a
separate investment portfolio of the Trust.
The beneficial interest in each Series shall at
all times be divided into Shares, without par
value, each of which shall, except as provided
in the following sentence, represent an equal
proportionate interest in the Series with each
other Share of the same Series, none having
priority or preference over another. The
Trustees may, without Shareholder approval,
divide the Shares of any Series into two or
more Classes, Shares of each such Class
having such preferences and special or
relative rights and privileges (including
conversion rights, if any) as the Trustees may
determine or as shall be set forth in the By-
Laws. Subject to applicable law, the Trustees
may, without Shareholder approval, authorize
the Trust to issue subscription or other rights
representing interests in Shares to existing
Shareholders or other persons subject to such
terms and conditions as the Trustees may
determine. The number of Shares authorized
shall be unlimited, except as the Bylaws may
otherwise provide, and the Shares so
authorized may be represented in part by
fractional shares. The Trustees may from
time to time divide or combine the Shares of
any Series or Class into a greater or lesser
number without thereby changing the
proportionate beneficial interest in the Series
or Class.
Ownership of Shares
Section 2. The ownership of Shares
shall be recorded on the books of the Trust or
a transfer or similar agent. No certificates
certifying the ownership of Shares shall be
issued except as the Trustees may otherwise
determine from time to time. The Trustees
may make such rules as they consider
appropriate for the issuance of Share
certificates, the transfer of Shares and similar
matters. The record books of the Trust as
kept by the Trust or any transfer or similar
agent, as the case may be, shall be conclusive
as to who are the Shareholders of each Series
and Class and as to the number of Shares of
each Series and Class held from time to time
by each Shareholder.
Investment in the Trust
Section 3. The Trustees shall accept
investments in the Trust from such persons
and on such terms and for such consideration,
which may consist of cash or tangible or
intangible property or a combination thereof,
as they or the By-Laws from time to time
authorize.
All consideration received by the
Trust for the issue or sale of Shares of each
Series, together with all income, earnings,
profits and proceeds thereof, including any
proceeds derived from the sale, exchange or
liquidation thereof, and any funds or
payments derived from any reinvestment of
such proceeds in whatever form the same may
be, shall irrevocably belong to the Series of
Shares with respect to which the same were
received by the Trust for all purposes, subject
only to the rights of creditors, and shall be so
handled upon the books of account of the
Trust and are herein referred to as "assets of"
such Series.
No Preemptive Rights
Section 4. Shareholders shall have no
preemptive or other right to subscribe to any
additional Shares or other securities issued by
the Trust.
Derivative Claims
Section 5. No Shareholder shall have
the right to bring or maintain any court action
or other proceeding (including but not limited
to any putative class action) asserting a
derivative claim or any claim asserted on
behalf of the Trust or involving any alleged
harm to the Trust without first making
demand on the Trustees requesting the
Trustees to bring or maintain such action,
proceeding, or claim. Such demand shall not
be excused under any circumstances,
including claims of alleged interest on the part
of the Trustees, unless the Shareholder makes
a specific showing that irreparable
nonmonetary injury to the Trust, Series or
Class would otherwise result. Such demand
shall be mailed to the Secretary of the Trust at
the Trust's principal office and shall set forth
with particularity the nature of the proposed
court action, proceeding or claim and the
essential facts relied upon by the Shareholder
to support the allegations made in the
demand. The Trustees shall consider such
demand within 45 days after its receipt by the
Trust. In their sole discretion, the Trustees
may submit the matter to a vote of
Shareholders of the Trust of any Series or
Class, as appropriate. Any decision by the
Trustees to bring, maintain or settle (or not to
bring, maintain or settle) such court action,
proceeding or claim, or to submit the matter
to a vote of Shareholders, shall be made by
the Trustees in their business judgment and
shall be binding upon the Shareholders.
Status of Shares and Limitation of
Personal Liability
Section 6. Shares shall be deemed to
be personal property giving Shareholders only
the rights provided in this Declaration of
Trust or the By-Laws. Every Shareholder by
virtue of having become a Shareholder shall
be held to have expressly assented and agreed
to the terms of this Declaration of Trust and
the By-Laws. The death of a Shareholder
during the continuance of the Trust shall not
operate to terminate the same 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 such representative shall be entitled only
to the rights of said decedent under this
Declaration of 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. Neither the Trust nor
the Trustees, nor any officer, employee or
agent of the Trust, shall have any power to
bind personally any Shareholder, nor except
as specifically provided in this Declaration of
Trust 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.
Transfer of Shares
Section 7. Shares may only be
assigned, transferred, pledged, mortgaged,
hypothecated, sold or otherwise disposed of,
encumbered or conveyed (collectively, a
"Transfer") by operation of law resulting
from death, disability, dissolution, bankruptcy
or incompetence or with the written consent
of an officer of the Trust, which consent may
be withheld in his/her sole discretion (for any
reason or no reason), which determination
shall be binding on all parties and may not be
challenged by any potential transferor or
transferee. To the fullest extent permitted by
applicable law, each Shareholder shall
indemnify the Trust, the Trustees, the officers
of the Trust, any Manager (as defined below),
other Shareholders of the Trust and in each
case their affiliates for any loss incurred as a
result of an impermissible Transfer of Shares.
Shares may not be Transferred, except
pursuant to a valid exemption from
registration pursuant to the Securities Act of
1933, as amended, or the regulations
thereunder (a "1933 Act Exemption"). Unless
otherwise waived by an officer of the Trust in
his or her sole discretion, any Transfer shall
be made only upon the receipt by the Trust of
a written opinion of counsel for the Trust or
of other counsel reasonably satisfactory to the
Trust (which opinion shall be obtained at the
expense of the transferor) that such Transfer
will be made pursuant to a 1933 Act
Exemption.
Direct Claims
Section 8. No class of Shareholders
shall have the right to bring or maintain a
direct action or other proceeding asserting a
claim for monetary damages against the Trust,
the Trustees, or officers predicated upon an
express or implied right of action under this
Declaration of Trust or the U.S. federal
securities laws (excepting rights of action
permitted under Section 36(b) of the 1940
Act), nor shall any single Shareholder have
the right to bring such an action, unless the
class of Shareholders or single Shareholder
has obtained authorization from the Trustees
to bring the action. The requirement of
authorization shall not be excused under any
circumstances, including claims of alleged
interest on the part of the Trustees. A request
for authorization shall be mailed to the
Secretary of the Trust at the Trust's principal
office and shall set forth with particularity the
nature of the proposed court action,
proceeding or claim and the essential facts
relied upon by the class of Shareholders or
single Shareholder to support the allegations
made in the request. The Trustees shall
consider such request within 90 days after its
receipt by the Trust. In their sole discretion,
the Trustees may submit the matter to a vote
of Shareholders of the Trust or of any Series
or Class of Shares, as appropriate. Any
decision by the Trustees to settle or to
authorize (or not to settle or to authorize) such
court action, proceeding or claim, or to submit
the matter to a vote of Shareholders, shall be
binding upon the class of Shareholders or
single Shareholder seeking authorization.
ARTICLE IV
The Trustees
Election, Tenure and Removal
Section 1. The initial Trustee shall be
Xxxx X. Xxxxxx. From time to time, the
Trustees may fix the number of Trustees or
fill vacancies in the Trustees, including
vacancies arising from an increase in the
number of Trustees. Each Trustee shall serve
during the continued lifetime of the Trust
until he or she dies, resigns or is removed, or,
if sooner, until the next meeting of
Shareholders called for the purpose of
electing Trustees and until the election and
qualification of his or her successor. Any
Trustee may resign at any time by written
instrument signed by him or her and delivered
to any officer of the Trust or to a meeting of
the Trustees. Such resignation shall be
effective upon receipt unless specified to be
effective at some other time. Except to the
extent expressly provided in a written
agreement with the Trust, no Trustee
resigning and no Trustee removed shall have
any right to any compensation for any period
following his or her resignation or removal, or
any right to damages on account of such
removal. The Shareholders may fix the
number of Trustees and elect Trustees at any
meeting of Shareholders called by the
Trustees for that purpose and to the extent
required by applicable law, including
paragraphs (a) and (b) of Section 16 of the
1940 Act.
Any Trustee may be removed from
office only for "Cause" (as hereinafter
defined) and only (i) by action of at least
seventy-five percent (75%) of the outstanding
Shares entitled to vote for the election of such
Trustee, at a meeting called for the purpose of
voting on such removal, or (ii) by written
instrument, signed by at least seventy-five
percent (75%) of the remaining Trustees,
specifying the date when such removal shall
become effective. "Cause" for these purposes
shall require willful misconduct, dishonesty
or fraud on the part of the Trustee in the
conduct of his office or such Trustee being
convicted of a felony.
Effect of Death, Resignation, etc. of a
Trustee
Section 2. The death, declination,
resignation, retirement, removal or incapacity
of the Trustees, or any one of them, shall not
operate to annul the Trust or to revoke any
existing agency created pursuant to the terms
of this Declaration of Trust.
Powers
Section 3. Subject to the provisions of
this Declaration of Trust, the business of the
Trust shall be managed by the Trustees, and
they shall have all powers necessary or
convenient to carry out that responsibility.
Without limiting the foregoing, the Trustees
may adopt By-Laws not inconsistent with this
Declaration of Trust providing for the
regulation and management of the affairs of
the Trust and may amend and repeal them to
the extent that such By-Laws do not reserve
that right to the Shareholders; they may fill
vacancies, including vacancies caused by
enlargement of their number and, in
accordance with the terms and provisions of
Section 1 of this Article IV, may remove
Trustees for Cause; they may elect and
remove, with or without cause, such officers
and appoint and terminate such agents as they
consider appropriate; they may appoint from
their own number, and terminate, any one or
more committees consisting of two or more
Trustees, including an executive committee
which may, when the Trustees are not in
session, exercise some or all of the power and
authority of the Trustees as the Trustees may
determine; they may appoint an advisory
board, the members of which shall not be
Trustees and need not be Shareholders; they
may employ one or more custodians of the
assets of the Trust and may authorize such
custodians to employ subcustodians and to
deposit all or any part of such assets in a
system or systems for the central handling of
securities or with a Federal Reserve Bank,
retain a transfer agent or a Shareholder
servicing agent, or both, provide for the
distribution of Shares by the Trust, through
one or more principal underwriters or
otherwise, set record dates for the
determination of Shareholders with respect to
various matters, and in general delegate such
authority as they consider desirable to any
officer of the Trust, to any committee of the
Trustees and to any agent or employee of the
Trust or to any such custodian or underwriter.
Without limiting the foregoing, the
Trustees shall have power and authority:
(a) To invest and reinvest
cash, and to hold cash uninvested;
(b) To sell, exchange, lend,
pledge, mortgage, hypothecate, lease,
write options with respect to or
otherwise deal in any property rights
relating to any or all of the assets of
the Trust;
(c) To act as a distributor of
shares and as underwriter of, or broker
or dealer in, securities and other
property;
(d) To vote or give assent, or
exercise any rights of ownership, with
respect to stock or other securities or
property; and to execute and deliver
proxies or 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 or property
as the Trustees shall deem proper;
(e) To exercise powers and
rights of subscription or otherwise
which in any manner arise out of
ownership of securities;
(f) To hold any security or
property in a form not indicating any
trust, whether in bearer, unregistered
or other negotiable form, or in the
name of the Trustees or of the Trust or
in the name of a custodian,
subcustodian or other depositary or a
nominee or nominees or otherwise;
(g) Subject to the provisions
of Article III, Section 3, to allocate
assets, liabilities, income and expenses
of the Trust to a particular Series of
Shares or to apportion the same
among two or more Series, provided
that any liabilities or expenses
incurred by a particular Series of
Shares shall be payable solely out of
the assets of that Series; and, to the
extent necessary or appropriate to give
effect to the preferences and special or
relative rights and privileges of any
Classes of Shares, to allocate assets,
liabilities, income and expenses of a
Series to a particular Class of Shares
of that Series or to apportion the same
among two or more Classes of Shares
of that Series;
(h) To consent to or
participate in any plan for the
reorganization, consolidation or
merger of any corporation or issuer,
any security of which is or was held in
the Trust; to consent to any contract,
lease, mortgage, purchase or sale of
property by such corporation or issuer;
and to pay calls or subscriptions with
respect to any security held in the
Trust;
(i) To join with other security
holders in acting through a committee,
depositary, voting trustee or
otherwise, and in that connection to
deposit any security with, or transfer
any security to, any such committee,
depositary or trustee, and to delegate
to them such power and authority with
relation to any security (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, depositary or trustee
as the Trustees shall deem proper;
(j) To 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;
(k) To enter into joint
ventures, general or limited
partnerships, limited liability
companies and any other
combinations or associations;
(l) To borrow funds or other
property;
(m) To endorse or guarantee
the payment of any notes or other
obligations of any person; to make
contracts of guaranty or suretyship, or
otherwise assume liability for payment
thereof; and to mortgage and pledge
the Trust property or any part thereof
to secure any of or all such
obligations;
(n) To purchase or otherwise
acquire Shares, from time to time as
the Trustees shall deem appropriate;
(o) To purchase and pay for
entirely out of Trust property such
insurance as they may deem necessary
or appropriate for the conduct of the
Trust's business, including, without
limitation, insurance policies insuring
the assets of the Trust and payment of
distributions and principal on its
portfolio investments, and insurance
policies insuring any or all of the
Shareholders, Trustees, officers,
employees, agents, investment
advisers or managers, principal
underwriters or independent
contractors of the Trust individually
against all claims and liabilities of
every nature arising by reason of
holding 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 as Shareholder,
Trustee, officer, employee, agent,
investment adviser or manager,
principal underwriter or independent
contractor, 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;
(p) To pay pensions 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; and
(q) To engage in any other
lawful act or activity in which
corporations organized under the
Massachusetts Business Corporation
Act, as amended from time to time,
may engage.
The foregoing enumeration of the
powers and authority of the Trustees shall be
read as broadly and liberally as possible, it
being the intent of the foregoing to in no way
limit the Trustees' powers and authority.
The Trustees shall not in any way be
bound or limited by any present or future law
or custom in regard to investments by
trustees. The Trustees shall not be required to
obtain any court order to deal with any assets
of the Trust or take any other action
hereunder.
Except as otherwise provided herein
or from time to time in the By-Laws, any
action to be taken by the Trustees may be
taken (A) by a majority of the Trustees
present at a meeting of the Trustees (a
quorum being present), within or without
Massachusetts, including any meeting held by
means of a conference telephone or other
communications equipment by means of
which all persons participating in the meeting
can hear each other at the same time
(participation by which means shall for all
purposes constitute presence in person at a
meeting), or (B) by written consents of a
majority of the Trustees then in office (which
written consents shall be filed with the
records of the meetings of the Trustees and
shall be treated for all purposes as a vote
taken at a meeting of Trustees).
Payment of Expenses by Trust and by
Shareholders
Section 4. The Trustees are
authorized to pay or to cause to be paid out of
the principal or income of the Trust, or partly
out of principal and partly out of income, as
they deem fair, all expenses, fees, charges,
taxes and liabilities incurred or arising in
connection with the Trust, in connection with
the management thereof, or in connection
with the financing of the sale of Shares,
including, but not limited to, the Trustees'
compensation and such expenses and charges
for the services of the Trust's officers,
employees, any investment adviser, manager
or sub-adviser, principal underwriter, auditor,
counsel, custodian, transfer agent, shareholder
servicing agent, and such other agents or
independent contractors and such other
expenses and charges as the Trustees may
deem necessary or proper to incur, provided,
however, that all expenses, fees, charges,
taxes and liabilities incurred by or arising in
connection with a particular Series of Shares,
as determined by the Trustees, shall be
payable solely out of the assets of that Series
and may, as the Trustees from time to time
may determine, be allocated to a particular
Class of Shares of a Series or apportioned
among two or more Classes of Shares of a
Series.
Ownership of Assets of the Trust
Section 5. Title to all of the assets of
each Series of Shares and of the Trust shall at
all times be considered as vested in the
Trustees.
Advisory, Management and Distribution
Section 6. The Trustees may, at any
time and from time to time, contract for
exclusive or nonexclusive advisory and/or
management services with any corporation,
limited liability company, general or limited
partnership, trust, association or other
organization (the "Manager"), every such
contract to comply with such requirements
and restrictions as may be set forth in the By-
Laws; and any such contract may provide for
one or more sub-advisers who shall perform
all or part of the obligations of the Manager
under such contract and may contain such
other terms interpretive of or in addition to
said requirements and restrictions as the
Trustees may determine, including, without
limitation, authority to determine from time to
time what investments shall be purchased,
held, sold or exchanged and what portion, if
any, of the assets of the Trust shall be held
uninvested and to make changes in the Trust's
investments. The Trustees may also, at any
time and from time to time, contract with the
Manager or any other corporation, limited
liability company, general or limited
partnership, trust, association or other
organization, appointing it the exclusive or
nonexclusive distributor or principal
underwriter for the Shares, every such
contract to comply with such requirements
and restrictions as may be set forth in the By-
Laws; and any such contract may contain
such other terms interpretive of or in addition
to said requirements and restrictions as the
Trustees may determine.
The fact that:
(i) any of the
Shareholders, Trustees or
officers of the Trust is a
shareholder, director, officer,
partner, member, trustee,
employee, manager, adviser,
principal underwriter,
distributor or affiliate or agent
of or for any corporation,
limited liability company,
general or limited partnership,
trust, association or other
organization, or of or for any
parent or affiliate of any
organization, with which an
advisory or management
contract, or principal
underwriter's or distributor's
contract, or transfer,
shareholder servicing or other
agency contract may have been
or may hereafter be made, or
that any such organization, or
any parent or affiliate thereof,
is a Shareholder or has an
interest in the Trust, or that
(ii) any corporation,
limited liability company,
general or limited partnership,
trust, association or other
organization with which an
advisory or management
contract, principal
underwriter's or distributor's
contract, or transfer,
shareholder servicing or other
agency contract may have been
or may hereafter be made also
has an advisory or
management contract,
principal underwriter's or
distributor's contract, or
transfer, shareholder servicing
or other agency contract with
one or more other
corporations, limited liability
companies, general or limited
partnerships, trusts,
associations or other
organizations, or has other
business or interests
shall not affect the validity of any such
contract or disqualify any Shareholder,
Trustee or officer of the Trust from voting
upon or executing the same or create any
liability or accountability to the Trust or its
Shareholders.
ARTICLE V
Shareholders' Voting Powers and Meetings
Voting Powers
Section 1. The Shareholders shall
have power to vote only (i) for the election or
removal of Trustees as provided in Article IV,
Section 1 of this Declaration of Trust,
provided, however, that no meeting of
Shareholders is required to be called for the
purpose of electing Trustees unless and until
such time as less than a majority of the
Trustees have been elected by the
Shareholders, (ii) with respect to any
amendment of this Declaration of Trust to the
extent and as provided in Article IX, Section
9 of this Declaration of Trust, (iii) with
respect to certain transactions and other
matters to the extent and as provided in
Article V, Section 6 of this Declaration of
Trust, (iv) with respect to any termination of
this Trust to the extent and as provided in
Article IX, Section 4 of this Declaration of
Trust (for the avoidance of any doubt,
Shareholders shall have no separate right to
vote with respect to the termination of the
Trust if the Trustees (including the
Continuing Trustees) exercise their right to
terminate the Trust pursuant to Article IX,
Section 4 of this Declaration of Trust, and
Shareholders shall have no right to vote with
respect to the termination of a Series or Class
of Shares), and (v) with respect to such
additional matters relating to the Trust as may
be required by law, this Declaration of Trust,
the By-Laws or any registration of the Trust
with the Securities and Exchange
Commission (or any successor agency) or any
state, or as the Trustees may consider
necessary or desirable. 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. On any matter
submitted to a vote of Shareholders, all
Shares of the Trust then entitled to vote shall,
except as otherwise provided in the By-Laws,
be voted in the aggregate as a single class
without regard to Series or Classes of Shares,
except that (1) when required by the 1940 Act
or when the Trustees shall have determined
that the matter affects one or more Series or
Classes of Shares materially differently,
Shares shall be voted by individual Series or
Class and (2) when the matter affects only the
interests of one or more Series or Classes,
only Shareholders of such Series or Classes
shall be entitled to vote thereon. There shall
be no cumulative voting in the election of
Trustees. Shares may be voted in person or
by proxy. A proxy with respect to Shares
held in the name of two or more persons shall
be valid if executed by any one of them unless
at or prior to exercise of the proxy the Trust
receives a specific written notice to the
contrary from any one of them. A proxy
purporting to be executed by or on behalf of a
Shareholder shall be deemed valid unless
challenged at or prior to its exercise and the
burden of proving invalidity shall rest on the
challenger. Until Shares are issued, the
Trustees may exercise all rights of
Shareholders and may take any action
permitted or required of the Shareholders by
law, this Declaration of Trust or the By-Laws.
Meetings
Section 2. Meetings of the
Shareholders of any or all Series or Classes
may be called by the Trustees from time to
time for the purpose of taking action upon any
matter requiring the vote or authority of the
Shareholders of such Series or Classes as
herein provided or for such other purposes as
may be prescribed by law, by this Declaration
of Trust or by the By-Laws. Meetings of the
Shareholders may also be called by the
Trustees from time to time for the purpose of
taking action upon any other matter deemed
by the Trustees to be necessary or desirable.
A meeting of Shareholders may be held at any
place designated by the Trustees. Notice of
any meeting of Shareholders, stating the time
and place of the meeting, shall be given or
caused to be given by the Trustees to each
Shareholder by mailing such notice, postage
prepaid, at least seven days before such
meeting, at the Shareholder's address as it
appears on the records of the Trust, or by
facsimile or other electronic transmission, at
least seven days before such meeting, to the
telephone or facsimile number or e-mail or
other electronic address most recently
furnished to the Trust (or its agent) by the
Shareholder. Whenever notice of a meeting is
required to be given to a Shareholder under
this Declaration of Trust or the By-Laws, a
written waiver thereof, executed before or
after the meeting by such Shareholder or his
or her attorney thereunto authorized and filed
with the records of the meeting, shall be
deemed equivalent to such notice.
The Trustees shall call a meeting of
Shareholders for the purpose of determining
whether the Trust should be dissolved in the
event that the Trust does not at least once
during any 24-month period beginning after
January 1, 2014 offer to repurchase Shares
tendered in accordance with the procedures
determined by the Board of Trustees from
time to time.
Quorum and Required Vote
Section 3. Except when a larger
quorum is required by law, by the By-Laws or
by this Declaration of Trust, thirty percent
(30%) of the Shares entitled to vote shall
constitute a quorum for the transaction of
business at a Shareholders' meeting, except
that where any provision of law or of this
Declaration of Trust or the By-Laws requires
that holders of any Series or Class shall vote
as a Series or Class, then thirty percent (30%)
of the aggregate number of Shares of that
Series or Class entitled to vote shall be
necessary to constitute a quorum for the
transaction of business by that Series or Class.
Any lesser number shall be sufficient for
adjournments. Except when a larger vote is
required by any provision of law or this
Declaration of Trust or the By-Laws, a
majority of the Shares voted shall decide any
questions and a plurality shall elect a Trustee,
provided that where any provision of law or
of this Declaration of Trust or the By-Laws
requires that the holders of any Series or
Class shall vote as a Series or Class, then a
majority of the Shares of that Series or Class
voted on the matter (or a plurality with
respect to the election of a Trustee) shall
decide that matter insofar as that Series or
Class is concerned.
Action by Written Consent
Section 4. Any action taken by
Shareholders may be taken without a meeting
if Shareholders holding a majority of the
Shares entitled to vote on the matter (or such
larger proportion thereof as shall be required
by any express provision of law or this
Declaration of Trust or the By-Laws) or, as
applicable, holding a majority (or such larger
proportion as aforesaid) of the Shares of any
Series or Class entitled to vote separately on
the matter consent to the action in writing and
such written consents are filed with the
records of the meetings of Shareholders.
Such consent shall be treated for all purposes
as a vote taken at a meeting of Shareholders.
Additional Provisions
Section 5. The By-Laws may include
further provisions, not inconsistent with this
Declaration of Trust, regarding Shareholders'
voting powers, the conduct of meetings and
related matters.
Voting Powers as to Certain Transactions
Section 6.
(a) Except as otherwise
provided in paragraph (b) of this
Section 6, the affirmative vote or
consent of at least seventy-five percent
(75%) of the Trustees and at least
seventy-five percent (75%) of the
Shares outstanding and entitled to vote
thereon shall be necessary to authorize
any of the following actions:
(i) the merger or
consolidation of the Trust or
any Series of Shares with or
into any other person or
company (including, without
limitation, a partnership,
corporation, limited liability
company, general or limited
partnership, joint venture,
business trust, common law
trust or any other business
organization) or of any such
person or company with or into
the Trust or any Series of
Shares;
(ii) a sale, lease,
exchange, mortgage, pledge,
transfer or other disposition by
the Trust or any Series of
Shares (in one or a series of
transactions in any twelve-
month period) to or with any
person of any assets of the
Trust or such Series having an
aggregate fair market value of
$1,000,000 or more, except for
transactions in securities
effected by the Trust or a
Series in the ordinary course of
business;
(iii) any Shareholder
proposal as to specific
investment decisions made or
to be made with respect to the
assets of the Trust or a Series
of Shares; and
(iv) the issuance or
transfer by the Trust or any
Series of Shares or Class of
Shares of any securities issued
by the Trust or such Series of
Shares or Class of Shares to
any other person or entity for
cash, securities or other
property (or combination
thereof), excluding (i) sales of
any securities of the Trust or a
Series of Shares or a Class of
Shares in connection with a
public offering thereof and (ii)
issuance of securities of the
Trust or a Series of Shares or a
Class of Shares pursuant to a
dividend reinvestment plan
adopted by the Trustees.
(b) Notwithstanding anything
to the contrary in paragraph (a) of this
Section 6, so long as each action is
approved by both a majority of the
Trustees and seventy-five percent
(75%) of the Continuing Trustees, and
so long as all other conditions and
requirements, if any, provided for in
the By-Laws and applicable law have
been satisfied, then no Shareholder
vote or consent shall be necessary or
required to approve any of the actions
listed in paragraphs (a)(i), (a)(ii),
(a)(iii) or (a)(iv) of this Section 6,
except to the extent such Shareholder
vote or consent is required by the 1940
Act or other applicable law.
ARTICLE VI
Distributions and Repurchases
Distributions
Section 1. The Trustees may each
year, or more frequently if they so determine
in their sole discretion, distribute to the
Shareholders of each Series out of the assets
of such Series such amounts as the Trustees
may determine. Any such distribution to the
Shareholders of a particular Series shall be
made to said Shareholders pro rata in
proportion to the number of Shares of such
Series held by each of them, except to the
extent otherwise required or permitted by the
preferences and special or relative rights and
privileges of any Classes of Shares of that
Series, and any distribution to the
Shareholders of a particular Class of Shares
shall be made to such Shareholders pro rata in
proportion to the number of Shares of such
Class held by each of them. Such
distributions shall be made in cash, Shares or
other property, or a combination thereof, as
determined by the Trustees. Any such
distribution paid in Shares will be paid at the
net asset value thereof. The Trustee shall
have full discretion to determine which items
shall be treated as income and which items as
capital and their determination shall be
binding upon the Shareholders.
Repurchases
Section 2. No Shareholder shall have
the right to require redemption or repurchase
of any Shares by the Trust or to tender Shares
to the Trust for repurchase. The Trust may
purchase or repurchase Shares. Such
purchase or repurchase of Shares may only be
at a price not exceeding the net asset value of
such Shares in effect when the purchase or
repurchase or any contract to purchase or
repurchase is made. Payment for any
purchase or repurchase by the Trust of Shares
may be made in cash, by promissory note or
in other property, or any combination thereof
subject to the terms and conditions
established by Trustees from time to time in
their sole discretion, which terms and
conditions shall be binding on all parties and
may not be challenged by any Shareholder.
The Trust shall have no obligation to effect a
pro rata division of cash or other property in
making any such payment. In no event shall
the Trust be liable for any delay of any other
person in transferring securities or other
property selected for delivery as all or part of
any such payment.
Repurchases and Transfers at the Option
of the Trust
Section 3. Subject to the provisions of
the 1940 Act, the Trustees, in their sole
discretion, may at any time and from time to
time cause the Trust to repurchase some or all
of the Shares of any Shareholder and cause
any Shareholder to sell all or a portion of its
Shares to the Trust, such repurchase to occur
at the net asset value of such Shares, under
terms set by the Trustees and for any reason,
including, but not limited to: (i) if at such
time such Shareholder owns fewer Shares
than, or Shares having an aggregate net asset
value of less than, an amount determined
from time to time by the Trustees; or (ii) to
the extent that such Shareholder owns Shares
of a particular Series or Class of Shares equal
to or in excess of a percentage of the
outstanding Shares of that Series or Class
determined from time to time by the Trustees;
or (iii) to the extent that such Shareholder
owns Shares of the Trust representing a
percentage equal to or in excess of a
percentage of the aggregate number of
outstanding Shares of the Trust or the
aggregate net asset value of the Trust
determined from time to time by the Trustees.
Subject to the provisions of the 1940
Act, the Trustees, in their sole discretion, may
at any time and from time to time cause a
Shareholder to sell all or a portion of its
Shares to a party designated by the Trustees,
such sales to occur at the net asset value of
such Shares, under terms set by the Trustees
and for any reason, including, but not limited
to: (i) such Shareholder received the Shares as
a result of a Transfer that did not comply with
Article III, Section 7 of this Declaration of
Trust; (ii) ownership by such Shareholder of
the Shares may cause the Trust to be in
violation of, 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, or
may in the judgment of the Board of Trustees,
or its designee, subject the Trust or any
Shareholder to an undue risk of adverse tax or
other fiscal or regulatory consequences; (iii)
continued ownership of the Shares by such
Shareholder may be harmful or injurious to
the business of the Trust, any investment
adviser or manager thereof or any investment
vehicle in which the Trust invests (including,
without limitation, investment funds whether
or not registered under the 0000 Xxx); (iv) any
of the representations and warranties made by
such Shareholder to the Trust in connection
with its acquisition of the Shares was not true
when made or has ceased to be true; (v) such
Shareholder owns fewer Shares than, or
Shares having an aggregate net asset value of
less than, an amount determined from time to
time by the Trustees; (vi) such Shareholder
owns Shares of a particular Series or Class of
Shares equal to or in excess of a percentage of
the outstanding Shares of that Series or Class
determined from time to time by the Trustees;
or (vii) such Shareholder owns Shares of the
Trust representing a percentage equal to or in
excess of a percentage of the aggregate
number of outstanding Shares of the Trust or
the aggregate net asset value of the Trust
determined from time to time by the Trustees.
Determination of Net Asset Value
Section 4. The net asset value per
Share, including of each Class (if any) and
each Series (if any) of Shares, of the Trust
shall be determined in accordance with the
1940 Act and any related procedures adopted
by the Trustees from time to time.
Determinations made under and pursuant to
this Section 4 in good faith and in accordance
with the provisions of the 1940 Act shall be
binding on all parties concerned.
ARTICLE VII
Compensation and Limitation of Liability
of Trustees
Compensation
Section 1. The Trustees as such shall
be entitled to reasonable compensation from
the Trust; they may fix the amount of their
compensation. Nothing herein shall in any
way prevent the employment of any Trustee
for advisory, management, legal, accounting,
investment banking, underwriting, brokerage
or other services and payment for the same by
the Trust.
Limitation of Liability
Section 2. The Trustees shall not be
responsible or liable in any event for any
neglect or wrongdoing of any officer, agent,
employee, Manager or principal underwriter
of the Trust, nor shall any Trustee be
responsible for the act or omission of any
other Trustee, but nothing herein contained
shall protect any Trustee against any liability
to which he or she would otherwise be subject
by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the
duties involved in the conduct of his or her
office.
Every note, bond, contract,
instrument, certificate or undertaking and
every other act or thing whatsoever issued,
executed or done by or on behalf of the Trust
or the Trustees or any of them in connection
with the Trust shall be conclusively deemed
to have been issued, executed or done only in
or with respect to their or his or her capacity
as Trustees or Trustee, and such Trustees or
Trustee shall not be personally liable thereon.
ARTICLE VIII
Indemnification
Trustees, Officers, etc.
Section 1. The Trust shall indemnify
each of its Trustees and officers, including
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
(each such Trustee, officer or person
hereinafter referred to as a "Covered
Person"), against all liabilities and expenses,
including but not limited to amounts paid in
satisfaction of judgments, in compromise or
as fines and penalties, and counsel fees
reasonably incurred by any Covered Person 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
such Covered Person may be or may have
been involved as a party or otherwise or with
which such Covered Person may be or may
have been threatened, while in office or
thereafter, by reason of being or having been
such a Covered Person, except with respect to
any matter as to which such Covered Person
shall have been finally adjudicated in a
decision on the merits in any such action, suit
or other proceeding not to have acted in good
faith in the reasonable belief that such
Covered Person's action was in the best
interests of the Trust or was at least not
opposed to the best interests of the Trust and
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 willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties
involved in the conduct of such Covered
Person's office. Expenses, including counsel
fees so incurred by any such Covered Person
(but excluding amounts paid in satisfaction of
judgments, in compromise or as fines or
penalties), shall 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 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, provided,
that (a) such Covered Person shall provide
security for his or her undertaking, (b) the
Trust shall be insured against losses arising by
reason of such Covered Person's failure to
fulfill his or her undertaking, or (c) a majority
of the Trustees who are disinterested persons
and who are not Interested Persons of the
Trust (provided that a majority of such
Trustees then in office act on the matter), or
independent legal counsel in a written
opinion, shall determine, based on a review of
readily available facts (as opposed to a full
trial-type inquiry), that there is reason to
believe such Covered Person ultimately will
be entitled to indemnification.
Compromise Payment
Section 2. As to any matter disposed
of (whether by a compromise payment,
pursuant to a consent decree or otherwise)
without an adjudication in a decision on the
merits by a court, or by any other body before
which the proceeding was brought, that such
Covered Person either (a) did not act in good
faith in the reasonable belief that such
Covered Person's action was in the best
interests of the Trust or (b) is liable to the
Trust or its Shareholders by reason of willful
misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in
the conduct of such Covered Person's office,
indemnification shall be provided if (x)
approved as in the best interest of the Trust,
after notice that it involves such
indemnification, by at least a majority of the
Trustees who are disinterested persons and
are not Interested Persons of the Trust
(provided that a majority of such Trustees
then in office act on the matter), upon a
determination, based upon a review of readily
available facts (as opposed to a full trial-type
inquiry), that such Covered Person acted in
good faith in the reasonable belief that such
Covered Person's action was in the best
interests of the Trust and is not liable to the
Trust or its Shareholders by reason of willful
misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in
the conduct of such Covered Person's office,
or (y) there has been obtained an opinion in
writing of independent legal counsel, based
upon a review of readily available facts (as
opposed to a full trial-type inquiry), to the
effect that such Covered Person appears to
have acted in good faith in the reasonable
belief that such Covered Person's action was
in the best interests of the Trust and that such
indemnification would not protect such
Covered Person against any liability to the
Trust to which such Covered Person would
otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in
the conduct of his or her office. Any approval
pursuant to this Section 2 shall not prevent the
recovery from any Covered Person of any
amount paid to such Covered Person in
accordance with this Section 2 as
indemnification if such Covered Person is
subsequently adjudicated by a court of
competent jurisdiction not to have acted in
good faith in the reasonable belief that such
Covered Person's action was in the best
interests of the Trust or to have been liable to
the Trust or its Shareholders by reason of
willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties
involved in the conduct of such Covered
Person's office.
Rebuttable Presumption
Section 3. For purposes of the
determination or opinion referred to in clause
(c) of Section 1 of this Article VIII or clauses
(x) or (y) of Section 2 of this Article VIII, the
majority of disinterested Trustees acting on
the matter or independent legal counsel, as the
case may be, shall be entitled to rely upon a
rebuttable presumption that the Covered
Person acted in good faith in the reasonable
belief that such Covered Person's action was
in the best interests of the Trust or was at least
not opposed to the best interests of the Trust
and that the Covered Person has not engaged
in willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties
involved in the conduct of such Covered
Person's office.
Indemnification Not Exclusive
Section 4. The right of
indemnification hereby provided 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, the term
"Covered Person" shall include such person's
heirs, executors and administrators, and a
"disinterested person" is a person against
whom none of the actions, suits or other
proceedings in question or another action, suit
or other proceeding on the same or similar
grounds is then or has been pending. Nothing
contained in this Article VIII shall affect any
rights to indemnification to which personnel
of the Trust, other than Trustees and officers,
and other persons may be entitled by contract
or otherwise under law, nor the power of the
Trust to purchase and maintain liability
insurance on behalf of such person; provided,
however, that the Trust shall not purchase or
maintain any such liability insurance in
contravention of the 1940 Act or other
applicable law.
Shareholders
Section 5. In case any Shareholder or
former Shareholder shall be held to be
personally liable solely by reason of his or her
being or having been a Shareholder of the
Trust or of a particular Series or Class and not
because of his or her acts or omissions or for
some other reason, the Shareholder or former
Shareholder (or his or her 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 of the Series (or
attributable to the Class) of which he or she is
a Shareholder or former Shareholder to be
held harmless from and indemnified against
all loss and expense arising from such
liability.
ARTICLE IX
Miscellaneous
Trustees, Shareholders etc. Not Personally
Liable; Notice
Section 1. All persons extending
credit to, contracting with or having any claim
against the Trust or any Series or Class shall
look only to the assets of the Trust, or, to the
extent that the liability relates to assets of a
particular Series or Class, only to the assets
belonging to the relevant Series or attributable
to the relevant 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, as such, shall be
personally liable therefor. Nothing in this
Declaration of Trust shall protect any Trustee
against any liability to which such Trustee
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.
Every note, bond, contract,
instrument, certificate or undertaking made or
issued on behalf of the Trust by the Trustees,
by any officer or officers or otherwise shall
give notice that this Declaration of Trust is on
file with the Secretary of The Commonwealth
of Massachusetts and shall recite that the
same was executed or made by or on behalf of
the Trust or by them as Trustee or Trustees or
as officer or officers or otherwise and not
individually and that the obligations of such
instrument are not binding upon any of them
or the Shareholders individually but are
binding only upon the assets and property of
the Trust or upon the assets belonging to the
Series or attributable to the Class for the
benefit of which the Trustees have caused the
note, bond, contract, instrument, certificate or
undertaking to be made or issued, and may
contain such further recital as he or she or
they may deem appropriate, but the omission
of any such recital shall not operate to bind
any Trustee or Trustees or officer or officers
or Shareholders or any other person
individually.
Trustee's Good Faith Action, Expert
Advice, No Bond or Surety
Section 2. The exercise by the
Trustees of their powers and discretions
hereunder shall be binding upon everyone
interested. A Trustee shall be liable for his or
her own willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties
involved in the conduct of the office of
Trustee, and for nothing else, and shall not be
liable for errors of judgment or mistakes of
fact or law. The Trustees may take advice of
counsel or other experts with respect to the
meaning and operation of this Declaration of
Trust, and shall be under no liability for any
action taken or omitted in accordance with
such advice or for failing to follow such
advice. The Trustees as such shall not be
required to give any bond as such nor any
surety if a bond is required.
For the sake of clarification and
without limiting any foregoing provision, the
appointment, designation or identification of a
Trustee as the chairperson of the Trustees, the
lead or assistant lead independent Trustee, a
member or chairperson of a committee of the
Trustees, an expert on any topic or in any area
(including audit committee financial expert)
or having any other special appointment,
designation or identification, shall not (a)
impose on that person any duty, obligation or
liability that is greater than the duties,
obligations and liabilities imposed on that
person as a Trustee in the absence of the
appointment, designation or identification or
(b) affect in any way such Trustee's rights or
entitlement to indemnification, and no Trustee
who has special skills or expertise, or is
appointed, designated or identified as
aforesaid, shall (x) be held to a higher
standard of care by virtue thereof or (y) be
limited with respect to any indemnification to
which such Trustee would otherwise be
entitled.
Liability of Third Persons Dealing with
Trustees
Section 3. No person dealing with the
Trustees shall be bound to make any inquiry
concerning the validity of any transaction
made or to be made by the Trustees or to see
to the application of any payments made or
property transferred to the Trust or upon its
order.
Duration and Termination of Trust
Section 4. Unless terminated as
provided herein, the Trust shall continue
without limitation of time. Subject to the
voting powers of one or more Classes or
Series of Shares as set forth in this
Declaration of Trust or the By-Laws, the
Trust may be terminated at any time (i) by
vote or consent of Shareholders holding at
least seventy-five percent (75%) of the Shares
entitled to vote or (ii) by vote or consent of a
majority of the Trustees and seventy-five
percent (75%) of the Continuing Trustees
upon written notice to the Shareholders. Any
Series or Class of Shares may be terminated
at any time (x) by vote or consent of a
majority of the Trustees and seventy-five
percent (75%) of the Continuing Trustees
upon written notice to the Shareholders of
such Series or Class or (y) by vote or consent
of Shareholders holding at least seventy-five
(75%) of the Shares entitled to vote of such
Series or Class. For the avoidance of any
doubt and notwithstanding anything to the
contrary in this Declaration of Trust,
Shareholders shall have no separate right to
vote with respect to the termination of the
Trust or a Series or Class of Shares if the
Trustees (including the Continuing Trustees)
exercise their right to terminate the Trust or
such Series or Class pursuant to this Section
4. Upon termination of the Trust or of any
one or more Series or Classes of Shares, after
paying or otherwise providing for all charges,
taxes, expenses and liabilities, whether due or
accrued or anticipated, of the Trust or of the
particular Series or Class as may be
determined by the Trustees, the Trust shall in
accordance with such procedures as the
Trustees consider appropriate reduce the
remaining assets to distributable form in cash
or shares or other property, or any
combination thereof, and distribute the
proceeds to the Shareholders of the Series
involved, ratably according to the number of
Shares of such Series held by the several
Shareholders of such Series on the date of
termination, except to the extent otherwise
required or permitted by the preferences and
special or relative rights and privileges of any
Classes of Shares of that Series, provided that
any distribution to the Shareholders of a
particular Class of Shares shall be made to
such Shareholders pro rata in proportion to
the number of Shares of such Class held by
each of them.
Filing and Copies, References, Headings
Section 5. The original or a copy of
this instrument and of each amendment hereto
shall be kept at the office of the Trust where it
may be inspected by any Shareholder. A
copy of this instrument and of each
amendment hereto shall be filed by the Trust
with the Secretary of The Commonwealth of
Massachusetts, as well as any other
governmental office where such filing may
from time to time be required. Anyone
dealing with the Trust may rely on a
certificate by an officer of the Trust as to
whether or not any such amendments 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 of
the Trust to be a copy of this instrument or of
any such amendments. In this instrument and
in any such amendment, references to this
instrument and all expressions like "herein,"
"hereof" and "hereunder" shall be deemed to
refer to this instrument as amended or
affected by any such amendments. Headings
are placed herein for convenience of reference
only and shall not be taken as a part hereof or
control or affect the meaning, construction or
effect of this instrument. This instrument
may be executed in any number of
counterparts each of which shall be deemed
an original.
Applicable Law
Section 6. This Declaration of Trust is
made in The Commonwealth of
Massachusetts, and it is created under and is
to be governed by and construed and
administered according to the laws of said
Commonwealth. The Trust shall be of the
type commonly called a Massachusetts
business trust and, without limiting the
provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by
such a trust. The laws of The Commonwealth
of Massachusetts shall govern the operations
of the Trust, including, absent a provision to
the contrary therein, any contract between the
Trust and any party relating to the provision
of investment advisory, administrative, or
distribution services to the Trust.
Forum for Adjudication of Disputes
Section 7. Unless the Trust consents
in writing to an alternative forum, the sole and
exclusive forum for (i) any action or
proceeding brought by or on behalf of the
Trust or any Series or Shareholders against
the Trust or any Series, the Trust's investment
adviser, or the Trustees, officers or employees
of the Trust, (ii) any action arising under or to
interpret, apply, enforce or determine the
validity of this Declaration of Trust or the By-
Laws or any investment advisory agreement,
or (iii) any action asserting a claim governed
by the internal affairs doctrine shall be
brought in the federal courts sitting within the
Southern District of New York. Any person
purchasing or otherwise acquiring or holding
any interest in shares of the Trust shall be (i)
deemed to have notice of and consented to the
provisions of this Section 7, and (ii) deemed
to have waived any argument relating to the
inconvenience of the forums referenced above
in connection with any action or proceeding
described in this Section 7.
Severability
Section 8. If any provision or
provisions of this Declaration of Trust shall
be held to be invalid, illegal or unenforceable
as applied to any person or circumstance for
any reason whatsoever, then, to the fullest
extent permitted by law, the validity, legality,
and enforceability of such provision(s) in any
other circumstance and of the remaining
portions of such provision and all other
provisions hereof shall not in any way be
affected or impaired thereby.
Amendments
Section 9.
(a) Except as specifically
provided in this Declaration of Trust,
the Trustees may amend or otherwise
supplement the Declaration of Trust
by making an amendment, a
Declaration of Trust supplemental
hereto or an amended and restated
Declaration of Trust by an instrument
in writing executed by a majority of
the Trustees. Shareholders shall have
the right to vote only on (i) any
amendment that would affect their
right to vote granted in Article V
Section 1 hereof; (ii) any amendment
as may be required by law to be
approved by Shareholders; and (iii)
any amendment submitted to them by
the Trustees. Notwithstanding the
preceding sentence, the Trustees may,
without any Shareholder vote, amend
this Declaration of Trust (x) to supply
any omission, to cure, correct or
supplement any ambiguous, defective
or inconsistent provision hereof, or (y)
if they deem it necessary or advisable,
to conform the Declaration of Trust to
the requirements of applicable law,
including the 1940 Act or the Internal
Revenue Code of 1986, as amended,
but the Trustees shall not be liable for
failing to do so, or, (z) with respect to
an amendment affecting a Series or
Class, for any reason at any time, if
there are no Shares of such Series or
Class outstanding at that time. Except
as otherwise specifically provided in
this Declaration of Trust, any
amendment on which Shareholders
have the right to vote shall require an
affirmative vote of the holders of at
least 75% of the Shares outstanding
and entitled to vote unless in any case
such action is approved by at least a
majority of the Trustees and at least
75% of the Continuing Trustees, in
which case a Majority Shareholder
Vote shall be required, except that an
amendment which in the
determination of the Trustees shall
affect the holders of one or more
Series or Classes of Shares but not the
holders of all outstanding Series or
Classes shall be authorized by vote of
such Series or Classes affected and no
vote of Shareholders of a Series or
Class not affected shall be required.
(b) Nothing contained in the
Declaration shall permit the
amendment of the Declaration of Trust
(i) to impair the exemption from
personal liability of the Shareholders,
former Shareholders, Trustees, former
Trustees, officers, employees or
agents, (ii) to permit assessments upon
Shareholders of the Trust, or (iii) to
limit the rights to indemnification
provided in Article VIII with respect
to actions or omissions of persons
entitled to indemnification under such
Article prior to such amendment.
(c) No amendment may be
made under this Section 9 which shall
amend, alter, change or repeal the
definition of "Continuing Trustee" or
any of the provisions of Article III,
Sections 4, 5, 6, 7 or 8; Article IV,
Section 1; Article V, Section 6; Article
VII, Section 2; Article VIII; or this
Article IX, Sections 1, 2, 3, 4 or 9
unless, in each case, the amendment
effecting such amendment, alteration,
change or repeal shall be effected by
an instrument in writing signed by a
majority of the then Trustees and
seventy-five percent (75%) of the
Continuing Trustees.
(d) Except to the extent that
the By-Laws or applicable law
requires a vote or consent of
Shareholders, the Board of Trustees
shall have the sole power and
authority to adopt, amend, alter,
change or repeal any By-Law of the
Trust, if the resolution or writing
adopting, amending, altering,
changing or repealing any such By-
Law is approved or signed by a
majority of the Board of Trustees;
provided, however, that any
amendment, alteration, change or
repeal of any Section or provision of
the By-Laws determined from time to
time to be subject to the supermajority
provision contained in this clause by a
majority of the Trustees and seventy-
five percent (75%) of the Continuing
Trustees, shall require the approval of
a majority of the Board of Trustees
and seventy-five percent (75%) of the
Continuing Trustees.
IN WITNESS WHEREOF, the undersigned
has hereunto set his/her hand and seal as of
the dates set forth below.
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Xxxxx X. Xxxxxxx, Trustee
STATE OF NEW YORK )
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COUNTY OF NEW YORK )
ss.
On the 26th day of August 2016, before me
personally came Xxxx X. Xxxxx, Xxxx X.
Xxxxxx, Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxx,
Xxxxx Xxxxxxx, and Xxxxx X. Xxxxxxx, to me
known to be the persons described in and who
executed the foregoing instrument, and
acknowledged that he or she executed the
same.
/s/
Xxxxxxx
DiMartino_____
Notary
Public: State of New York
Commission Expiration: October 4,
2017
ADDRESS OF TRUST
The current address of the trust is:
Blackstone Alternative Alpha Fund II
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
TRUSTEES ADDRESSES
The current names and addresses of the
Trustees are:
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