ADVANTAGE ADVISERS MULTI-SECTOR FUND I
(A Delaware Business Trust)
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
Dated as of November 28, 2001
ADVANTAGE ADVISERS MULTI-SECTOR FUND I
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
made as of the __ day of November, 2001, by the Trustees hereunder, and by
the holders of Shares issued hereunder as hereinafter provided.
WHEREAS, this Trust has been formed to carry on business
as set forth more particularly hereinafter;
WHEREAS, this Trust is authorized to issue an unlimited
number of its Shares all in accordance with the provisions hereinafter set
forth;
WHEREAS, the Trustees have agreed to manage all property
coming into their hands as Trustees of a Delaware business trust in
accordance with the provisions hereinafter set forth; and
WHEREAS, the parties hereto intend that the Trust created
by this Declaration and the Certificate of Trust filed with the Secretary
of State of the State of Delaware on August 14, 2001 shall constitute a
business trust under the Delaware Business Trust Act and that this
Declaration shall constitute the governing instrument of such business
trust.
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 of beneficial interest in this
Trust as hereinafter set forth.
ARTICLE I
The Trust
1.1 Name. This Trust shall be known as the "Advantage
Advisers Multi-Sector Fund I" and the Trustees shall conduct the business
of the Trust under that name or any other name or names as they may from
time to time determine.
1.2 Definitions. As used in this Declaration, the
following terms shall have the following meanings:
"1940 Act" refers to the Investment Company Act of 1940
and the rules and regulations promulgated thereunder and exemptions granted
therefrom, as amended from time to time.
"Advisers Act" refers to the Investment Advisers Act of
1940 and the rules and regulations promulgated thereunder and exemptions
granted therefrom, as amended from time to time.
The term "Interested Person" shall have the meaning given
to it in the 1940 Act.
"By-Laws" shall mean the By-Laws of the Trust, as amended
from time to time by the Trustees.
"Chairman" refers to the Chairman of the Board of
Trustees, if any.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
"Commission" shall mean the Securities and Exchange
Commission.
"Declaration" shall mean this Amended and Restated
Agreement and Declaration of Trust, as amended or amended and restated from
time to time.
"Delaware Business Trust Act" shall mean the provisions
of the Delaware Business Trust Act, 12 Del. C.ss.3801, et. seq., as such
Act may be amended from time to time.
"Delaware General Corporation Law" means the Delaware
General Corporation Law, 8 Del. C.ss.100, et. seq., as amended from time to
time.
"Exchange Act" refers to the Securities Exchange Act of
1934 and the rules and regulations promulgated thereunder and exemptions
granted therefrom, as amended from time to time.
"Fundamental Policies" shall mean the investment policies
and restrictions as set forth from time to time in any Prospectus or
contained in any current Registration Statement of the Trust filed with the
Commission or as otherwise adopted by the Trustees and the Shareholders in
accordance with the requirements of the 1940 Act and designated as
fundamental policies therein, as they may be amended from time to time in
accordance with the requirements of the 1940 Act.
"Majority Shareholder Vote" shall mean a vote of "a
majority of the outstanding voting securities" (as such term is defined in
the 0000 Xxx) of the Trust with each class voting together (except where
the classes are required to vote separately by the 1940 Act or other
applicable law).
"Person" shall mean and include individuals,
corporations, partnerships, trusts, limited liability companies,
associations, joint ventures and other entities, whether or not legal
entities, and governments and agencies and political subdivisions thereof.
"Prospectus" shall mean the Prospectus of the Trust, if
any, as in effect from time to time under the Securities Act of 1933, as
amended.
"Securities Act" refers to the Securities Act of 1933 and
the rules and regulations promulgated thereunder and exemptions granted
therefrom, as amended from time to time.
"Shareholders" shall mean, as of any particular time, the
holders of record of outstanding Shares at such time.
"Shares" shall mean the transferable units of beneficial
interest into which the beneficial interest in the Trust shall be divided
from time to time and includes fractions of Shares as well as whole Shares.
All references to Shares shall be deemed to be Shares of any or all series
or classes as the context may require.
"Trust" shall mean the trust established by this
Declaration, as amended from time to time, inclusive of each such
amendment.
"Trust Property" shall mean as of any particular time any
and all property, real or personal, tangible or intangible, which at such
time is owned or held by or for the account of the Trust or the Trustees in
such capacity.
"Trustees" shall mean the signatories to this Declaration
so long as they shall continue in office in accordance with the terms
hereof, and all other persons who at the time in question have been duly
elected or appointed and have qualified as trustees in accordance with the
provisions hereof and are then in office.
ARTICLE II
Trustees
2.1 Number and Qualification. Prior to a public offering
of Shares, there may be a sole Trustee. Thereafter, the number of Trustees
shall be determined by a written instrument signed by a majority of the
Trustees then in office; provided that the number of Trustees shall be no
less than two or more than nine. No reduction in the number of Trustees
shall have the effect of removing any Trustee from office prior to the
expiration of his term. An individual nominated as a Trustee shall be at
least 21 years of age and not older than 80 years of age at the time of
nomination and not under legal disability. Trustees need not own Shares and
may succeed themselves in office.
2.2 Resignation and Removal. Any of the Trustees may
resign their trust (without need for prior or subsequent accounting) by an
instrument in writing signed by such Trustee and delivered or mailed to the
Trustees or the Chairman, if any, the President or the Secretary and such
resignation shall be effective upon such delivery, or at a later date
according to the terms of the instrument. Any of the Trustees may be
removed (provided the aggregate number of Trustees after such removal shall
not be less than the minimum number required by Section 2.1 hereof) for
cause only, and not without cause, and only by action taken by a majority
of the remaining Trustees followed by consent of the holders of at least
seventy-five percent (75%) of the Shares then entitled to vote in an
election of such Trustee. Upon the resignation or removal of a Trustee,
each such resigning or removed Trustee shall execute and deliver such
documents as the remaining Trustees shall require for the purpose of
conveying to the Trust or the remaining Trustees any Trust Property held in
the name of such resigning or removed Trustee. Upon the incapacity or death
of any Trustee, such Trustee's legal representative shall execute and
deliver on such Trustee's behalf such documents as the remaining Trustees
shall require as provided in the preceding sentence.
2.3 Vacancies. Whenever a vacancy in the Board of
Trustees shall occur, the remaining Trustees may fill such vacancy by
appointing an individual having the qualifications described in this
Article II by a written instrument signed by a majority of the Trustees
then in office or may leave such vacancy unfilled or may reduce the number
of Trustees; provided that the aggregate number of Trustees after such
reduction shall not be less than the minimum number required by Section 2.1
hereof. Any vacancy created by an increase in Trustees may be filled by the
appointment of an individual having the qualifications described in this
Article II made by a written instrument signed by a majority of the
Trustees then in office. No vacancy shall operate to annul this Declaration
or to revoke any existing agency created pursuant to the terms of this
Declaration. Whenever a vacancy in the number of Trustees shall occur,
until such vacancy is filled as provided herein, the Trustees in office,
regardless of their number, shall have all the powers granted to the
Trustees and shall discharge all the duties imposed upon the Trustees by
this Declaration.
2.4 Meetings. Meetings of the Trustees shall be held from
time to time upon the call of the Chairman, if any, or the President or any
two Trustees. Regular meetings of the Trustees may be held without call or
notice at a time and place fixed by the By-Laws or by resolution of the
Trustees. Notice of any other meeting shall be given by the Secretary and
shall be delivered to the Trustees orally not less than 24 hours, or in
writing not less than 72 hours, before the meeting, but may be waived in
writing by any Trustee either before or after such meeting. The attendance
of a Trustee at a meeting shall constitute a waiver of notice of such
meeting except where a Trustee attends a meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting
has not been properly called or convened. A quorum for all meetings of the
Trustees shall be not less than two. Unless provided otherwise in this
Declaration and except as required under the 1940 Act, any action of the
Trustees may be taken at a meeting by vote of a majority of the Trustees
present (a quorum being present) or without a meeting by written consent of
a majority of the Trustees.
Any committee of the Trustees, including an executive
committee, if any, may act with or without a meeting. A quorum for all
meetings of any such committee shall be one-third, but not less than two,
of the members thereof. Unless provided otherwise in this Declaration, any
action of any such committee may be taken at a meeting by vote of a
majority of the members present (a quorum being present) or without a
meeting as set forth in Section 2.5.
With respect to actions of the Trustees and any committee
of the Trustees, Trustees who are Interested Persons in any action to be
taken may be counted for quorum purposes under this Section and shall be
entitled to vote to the extent not prohibited by the 1940 Act.
All or any one or more Trustees may participate in a
meeting of the Trustees or any committee thereof by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other; participation in a
meeting pursuant to any such communications system shall constitute
presence in person at such meeting for all purposes of the Trust, except to
the extent that participation in such a meeting would not satisfy any
requirement under the 1940 Act with respect to any matter that requires the
in personam approval of the Trustees.
2.5 Trustee Action by Written Consent. Any action which
may be taken by Trustees by vote may be authorized or taken without a
meeting if the Trustees, or members of a committee, as the case may be,
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all Trustees, or
members of a committee, as the case may be, entitled to vote thereon were
present and voted, consent to the action in writing and the written
consents are filed with the records of the meetings of Trustees. Such
consent shall be treated for all purposes as a vote taken at a meeting of
Trustees.
2.6 Officers. The Trustees shall elect a President,
Secretary, Vice President, Treasurer and one or more Assistant Secretaries
and may elect a Chairman who shall each serve at the pleasure of the
Trustees or until their successors are elected. The Trustees may elect or
appoint or may authorize the Chairman, if any, or President to appoint such
other officers or agents with such powers as the Trustees may deem to be
advisable. A Chairman shall, and the President, Secretary, Vice President,
Treasurer and any Assistant Secretary may, but need not, be a Trustee.
ARTICLE III
Powers and Duties of Trustees
3.1 General. The Trustees shall owe to the Trust and its
Shareholders the same fiduciary duties as owed by directors of corporations
to such corporations and their stockholders under the Delaware General
Corporation Law. 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 Declaration. The Trustees may perform such acts as they,
in their sole discretion, determine to be proper for conducting the
business of the Trust. The enumeration of any specific power herein shall
not be construed as limiting the aforesaid power. Such powers of the
Trustees may be exercised without order of or resort to any court.
3.2 Investments. The Trustees shall have power, subject
to the Fundamental Policies in effect from time to time with respect to the
Trust to:
(a) manage, conduct, operate and carry on the business of
an investment company;
(b) subscribe for, invest in, reinvest in, purchase or
otherwise acquire, hold, pledge, sell, assign, transfer, exchange,
distribute or otherwise deal in or dispose of any and all sorts of
property, tangible or intangible, including but not limited to securities
of any type whatsoever, whether equity or non-equity, of any issuer,
evidences of indebtedness of any person and any other rights, interests,
instruments or property of any sort and to exercise any and all rights,
powers and privileges of ownership or interest in respect of any and all
such investments of every kind and description, including, without
limitation, the right to consent and otherwise act with respect thereto,
with power to designate one or more Persons to exercise any of said rights,
powers and privileges in respect of any of said investments. The Trustees
shall not be limited by any law limiting the investments which may be made
by fiduciaries.
3.3 Legal Title. Legal title to all the Trust Property
shall be vested in the Trustees as joint tenants except that the Trustees
shall have power to cause legal title to any Trust Property to be held by
or in the name of one or more of the Trustees, or in the name of the Trust,
or in the name of any other Person as nominee, custodian or pledgee, on
such terms as the Trustees may determine; provided that the interest of the
Trust therein is appropriately protected.
The right, title and interest of the Trustees in the
Trust Property shall vest automatically in each person who may hereafter
become a Trustee upon his due election and qualification. Upon the ceasing
of any person to be a Trustee for any reason, such person shall
automatically cease to have any right, title or interest in any of the
Trust Property, and the right, title and interest of such Trustee in the
Trust Property shall vest automatically in the remaining Trustees. Such
vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered.
3.4 Issuance and Repurchase of Shares. The Trustees shall
have the power to issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of, transfer, and otherwise deal in, Shares,
including Shares in fractional denominations, and, subject to the more
detailed provisions set forth in Articles VIII and IX, to apply to any such
repurchase, redemption, retirement, cancellation or acquisition of Shares
any funds or property whether capital or surplus or otherwise, to the full
extent now or hereafter permitted corporations formed under the Delaware
General Corporation Law.
3.5 Borrow Money or Utilize Leverage. Subject to the
Fundamental Policies in effect from time to time with respect to the Trust,
the Trustees shall have the power to borrow money or otherwise obtain
credit or utilize leverage to the maximum extent permitted by law or
regulation as such may be needed from time to time and to secure the same
by mortgaging, pledging or otherwise subjecting as security the assets of
the Trust, including the lending of portfolio securities, and to endorse,
guarantee, or undertake the performance of any obligation, contract or
engagement of any other person, firm, association or corporation.
3.6 Delegation; Committees. The Trustees shall have the
power, consistent with their continuing exclusive authority over the
management of the Trust and the Trust Property, to delegate from time to
time to such of their number or to officers, employees or agents of the
Trust the doing of such things and the execution of such instruments either
in the name of the Trust or the names of the Trustees or otherwise as the
Trustees may deem expedient, to at least the same extent as such delegation
is permitted to directors of corporations formed under the Delaware General
Corporation Law and is permitted by the 1940 Act, as well as any further
delegations the Trustees may determine to be desirable, expedient or
necessary in order to effect the purpose hereof.
3.7 Collection and Payment. The Trustees shall have power
to collect all property due to the Trust; to pay all claims, including
taxes, against the Trust Property or the Trust, the Trustees or any
officer, employee or agent of the Trust; to prosecute, defend, compromise
or abandon any claims relating to the Trust Property or the Trust, or the
Trustees or any officer, employee or agent of the Trust; to foreclose any
security interest securing any obligations, by virtue of which any property
is owed to the Trust; and to enter into releases, agreements and other
instruments. Except to the extent required for a corporation formed under
the Delaware General Corporation Law, the Shareholders shall have no power
to vote as to whether or not a court action, legal proceeding or claim
should or should not be brought or maintained derivatively or as a class
action on behalf of the Trust or the Shareholders.
3.8 Expenses. The Trustees shall have power to incur and
pay out of the assets or income of the Trust any expenses which in the
opinion of the Trustees are necessary or incidental to carry out any of the
purposes of this Declaration, and the business of the Trust, and to pay
reasonable compensation from the funds of the Trust to themselves as
Trustees. The Trustees shall fix the compensation of all officers,
employees and Trustees. The Trustees may pay themselves such compensation
for special services, including legal, underwriting, syndicating and
brokerage services, as they in good faith may deem reasonable and
reimbursement for expenses reasonably incurred by themselves on behalf of
the Trust.
3.9 By-Laws. The Trustees shall have the exclusive
authority to adopt and from time to time amend or repeal By-Laws for the
conduct of the business of the Trust.
3.10 Miscellaneous Powers. The Trustees shall have the
power to: (a) employ or contract with such Persons as the Trustees may deem
desirable for the transaction of the business of the Trust; (b) enter into
joint ventures, partnerships and any other combinations or associations;
(c) purchase, and pay for out of Trust Property, insurance policies
insuring the Shareholders, Trustees, officers, employees, agents,
investment advisers, distributors, selected dealers or independent
contractors of the Trust against all claims arising by reason of holding
any such position or by reason of any action taken or omitted by any such
Person in such capacity, whether or not constituting negligence, or whether
or not the Trust would have the power to indemnify such Person against such
liability; (d) establish pension, profit-sharing, share purchase, and other
retirement, incentive and benefit plans for any Trustees, officers,
employees and agents of the Trust; (e) make donations, irrespective of
benefit to the Trust, for charitable, religious, educational, scientific,
civic or similar purposes; (f) to the extent permitted by law, indemnify
any Person with whom the Trust has dealings, including without limitation
any adviser, administrator, manager, transfer agent, custodian, distributor
or selling agent, or any other person as the Trustees may see fit to such
extent as the Trustees shall determine; (g) guarantee indebtedness or
contractual obligations of others; (h) determine and change the fiscal year
of the Trust and the method in which its accounts shall be kept; and (i)
adopt a seal for the Trust, but the absence of such seal shall not impair
the validity of any instrument executed on behalf of the Trust.
3.11 Further Powers. The Trustees shall have the 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, and in any and all commonwealths, territories,
dependencies, colonies, possessions, agencies or instrumentalities of the
United States of America and of foreign governments, 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 Declaration, the
presumption shall be in favor of a grant of power to the Trustees. The
Trustees will not be required to obtain any court order to deal with the
Trust Property.
ARTICLE IV
Advisory, Management and Distribution Arrangements
4.1 Advisory and Management Arrangements. Subject to the
requirements of applicable law as in effect from time to time, the Trustees
may in their discretion from time to time enter into advisory,
administration or management contracts (including, in each case, one or
more sub-advisory, sub-administration or sub-management contracts) whereby
the other party to any such contract shall undertake to furnish the
Trustees such advisory, administrative and management services, with
respect to the Trust as the Trustees shall from time to time consider
desirable and all upon such terms and conditions as the Trustees may in
their discretion determine. Notwithstanding any provisions of this
Declaration, the Trustees may authorize any adviser, administrator or
manager (subject to such general or specific instructions as the Trustees
may from time to time adopt) to effect investment transactions with respect
to the assets on behalf of the Trustees to the full extent of the power of
the Trustees to effect such transactions or may authorize any officer,
employee or Trustee to effect such transactions pursuant to recommendations
of any such adviser, administrator or manager (and all without further
action by the Trustees). Any such investment transaction shall be deemed to
have been authorized by all of the Trustees.
4.2 Distribution Arrangements. Subject to compliance with
the 1940 Act, the Trustees may retain distributors and/or selling agents to
sell Shares. The Trustees may in their discretion from time to time enter
into one or more contracts, providing for the sale of the Shares, whereby
the Trust may either agree to sell such Shares to the other party to the
contract or appoint such other party its distributor or selling agent for
such Shares. In either case, the contract shall be on such terms and
conditions as the Trustees may in their discretion determine not
inconsistent with the provisions of this Article IV, the By-Laws or the
1940 Act; and such contract may also provide for the repurchase or sale of
Shares by such other party as principal or as agent of the Trust and may
provide that such other party may enter into selling and servicing (and
similar) agreements with registered securities dealers and brokers to
further the purposes of the distribution or repurchase of the Shares of the
Trust.
4.3 Parties to Contract. Any contract of the character
described in Sections 4.1 and 4.2 of this Article IV or in Article VII
hereof may be entered into with any Person, although one or more of the
Trustees, officers or employees 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 voidable by reason of the
existence of any such relationship, 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 reasonable and fair and not inconsistent
with the provisions of this Article IV or the By-Laws. The same Person may
be the other party to contracts entered into pursuant to Sections 4.1 and
4.2 above or Article VII, 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 4.3.
ARTICLE V
Limitations of Liability and Indemnification
5.1 No Personal Liability of Shareholders, Trustees, etc.
No Shareholder of the Trust shall be subject in such capacity to any
personal liability whatsoever to any Person in connection with Trust
Property or the acts, obligations or affairs of the Trust. Shareholders
shall have the same limitation of personal liability as is extended to
stockholders of a private corporation for profit incorporated under the
Delaware General Corporation Law. No Trustee or officer of the Trust shall
be subject in such capacity to any personal liability whatsoever to any
Person, other than the Trust or its Shareholders, in connection with Trust
Property or the affairs of the Trust, save only liability to the Trust or
its Shareholders arising from bad faith, willful misfeasance, gross
negligence (negligence in the case of those Trustees or officers who are
directors, officers or employees of the Trust's investment adviser
("Affiliated Indemnitees")) or reckless disregard for his duty to such
Person; and, subject to the foregoing exception, all such Persons shall
look solely to the Trust Property for satisfaction of claims of any nature
arising in connection with the affairs of the Trust. If any Shareholder,
Trustee or officer, as such, of the Trust, is made a party to any suit or
proceeding to enforce any such liability, subject to the foregoing
exception, he shall not, on account thereof, be held to any personal
liability. Any repeal or modification of this Section 5.1 shall not
adversely affect any right or protection of a Trustee or officer of the
Trust existing at the time of such repeal or modification with respect to
acts or omissions occurring prior to such repeal or modification.
5.2 Mandatory Indemnification.
(a) The Trust hereby agrees to indemnify each person
who at any time serves as a Trustee or officer of the Trust (each such
person being an "Indemnitee") against any liabilities and expenses,
including amounts paid in satisfaction of judgments, in compromise or as
fines and penalties, and reasonable counsel fees reasonably incurred by
such Indemnitee in connection with the defense or disposition of any
action, suit or other proceeding, whether civil or criminal, before any
court or administrative or investigative body in which he may be or may
have been involved as a party or otherwise or with which he may be or may
have been threatened, while acting in any capacity set forth in this
Article V by reason of his having acted in any such capacity, except with
respect to any matter as to which he shall not have acted in good faith in
the reasonable belief that his action was in the best interest of the Trust
or, in the case of any criminal proceeding, as to which he shall have had
reasonable cause to believe that the conduct was unlawful; provided,
however, that no Indemnitee shall be indemnified hereunder against any
liability to any person or any expense of such Indemnitee arising by reason
of (i) willful misfeasance, (ii) bad faith, (iii) gross negligence, or (iv)
reckless disregard of the duties involved in the conduct of his position
(the conduct referred to in such clauses (i) through (iv) being sometimes
referred to herein as "disabling conduct"). Notwithstanding the foregoing,
with respect to any action, suit or other proceeding voluntarily prosecuted
by any Indemnitee as plaintiff, indemnification shall be mandatory only if
the prosecution of such action, suit or other proceeding by such Indemnitee
(1) was authorized by a majority of the Trustees or (2) was instituted by
the Indemnitee to enforce his or her rights to indemnification hereunder in
a case in which the Indemnitee is found to be entitled to such
indemnification. The rights to indemnification set forth in this
Declaration shall continue as to a person who has ceased to be a Trustee or
officer of the Trust and shall inure to the benefit of his or her heirs,
executors and personal and legal representatives. No amendment or
restatement of this Declaration or repeal of any of its provisions shall
limit or eliminate any of the benefits provided to any person who at any
time is or was a Trustee or officer of the Trust or otherwise entitled to
indemnification hereunder in respect of any act or omission that occurred
prior to such amendment, restatement or repeal.
(b) Notwithstanding the foregoing, no
indemnification shall be made hereunder unless there has been a
determination (i) by a final decision on the merits by a court or other
body of competent jurisdiction before whom the issue of entitlement to
indemnification hereunder was brought that such Indemnitee is entitled to
indemnification hereunder or, (ii) in the absence of such a decision, by
(1) a majority vote of a quorum of those Trustees who are neither
Interested Persons of the Trust nor parties to the proceeding
("Disinterested Non-Party Trustees"), that the Indemnitee is entitled to
indemnification hereunder, or (2) if such quorum is not obtainable or even
if obtainable, if such majority so directs, independent legal counsel in a
written opinion concludes that the Indemnitee should be entitled to
indemnification hereunder. All determinations to make advance payments in
connection with the expense of defending any proceeding shall be authorized
and made in accordance with the immediately succeeding paragraph (c) below.
(c) The Trust shall make advance payments in
connection with the expenses of defending any action with respect to which
indemnification might be sought hereunder if the Trust receives a written
affirmation by the Indemnitee of the Indemnitee's good faith belief that
the standards of conduct necessary for indemnification have been met and a
written undertaking to reimburse the Trust unless it is subsequently
determined that the Indemnitee is entitled to such indemnification and if a
majority of the Trustees determine that the applicable standards of conduct
necessary for indemnification appear to have been met. In addition, at
least one of the following conditions must be met: (i) the Indemnitee shall
provide adequate security for his undertaking, (ii) the Trust shall be
insured against losses arising by reason of any lawful advances, or (iii) a
majority of a quorum of the Disinterested Non-Party Trustees, or if a
majority vote of such quorum so direct, independent legal counsel in a
written opinion, shall conclude, based on a review of readily available
facts (as opposed to a full trial-type inquiry), that there is substantial
reason to believe that the Indemnitee ultimately will be found entitled to
indemnification.
(d) The rights accruing to any Indemnitee under
these provisions shall not exclude any other right which any person may
have or hereafter acquire under this Declaration, the By-Laws of the Trust,
any statute, agreement, vote of stockholders or persons that are not
Interested Persons or any other right to which he or she may be lawfully
entitled.
(e) Subject to any limitations provided by the 1940
Act and this Declaration, the Trust shall have the power and authority to
indemnify and provide for the advance payment of expenses to employees,
agents and other Persons providing services to the Trust or serving in any
capacity at the request of the Trust to the full extent corporations
organized under the Delaware General Corporation Law may indemnify or
provide for the advance payment of expenses for such Persons; provided that
such indemnification has been approved by a majority of the Trustees.
5.3 No Bond Required of Trustees. No Trustee shall, as
such, be obligated to give any bond or other security for the performance
of any of his duties hereunder.
5.4 No Duty of Investigation; Notice in Trust
Instruments, etc. No purchaser, lender, transfer agent or other person
dealing with the Trustees or with any officer, employee or agent of the
Trust shall be bound to make any inquiry concerning the validity of any
transaction purporting to be made by the Trustees or by said officer,
employee or agent or be liable for the application of money or property
paid, loaned, or delivered to or on the order of the Trustees or of said
officer, employee or agent. Every obligation, contract, undertaking,
instrument, certificate, Share, other security of the Trust, and every
other act or thing whatsoever executed in connection with the Trust shall
be conclusively taken to have been executed or done by the executors
thereof only in their capacity as Trustees under this Declaration or in
their capacity as officers, employees or agents of the Trust. Every written
obligation, contract, undertaking, instrument, certificate, Share, other
security of the Trust made or issued by the Trustees or by any officers,
employees or agents of the Trust in their capacity as such, shall contain
an appropriate recital to the effect that the Shareholders, Trustees,
officers, employees or agents of the Trust shall not personally be bound by
or liable thereunder, nor shall resort be had to their private property for
the satisfaction of any obligation or claim thereunder, and appropriate
references shall be made therein to this Declaration, and may contain any
further recital which they may deem appropriate, but the omission of such
recital shall not operate to impose personal liability on any of the
Trustees, Shareholders, officers, employees or agents of the Trust. The
Trustees may maintain insurance, including a fidelity bond, for the
protection of the Trust Property, its Shareholders, Trustees, officers,
employees and agents in such amount as the Trustees shall deem adequate to
cover possible tort liability, and such other insurance as the Trustees in
their sole judgment shall deem advisable or is required by the 1940 Act.
5.5 Reliance on Experts, etc. Each Trustee and officer or
employee of the Trust shall, in the performance of its duties, be fully and
completely justified and protected with regard to any act or any failure to
act resulting from reliance in good faith upon the books of account or
other records of the Trust, upon an opinion of counsel, or upon reports
made to the Trust by any of the Trust's officers or employees or by any
advisor, administrator, manager, distributor, selected dealer, accountant,
appraiser or other expert or consultant selected with reasonable care by
the Trustees, officers or employees of the Trust, regardless of whether
such counsel or expert may also be a Trustee.
5.6 Indemnification of Shareholders. If any Shareholder
or former Shareholder shall be held personally liable solely by reason of
its being or having been a Shareholder and not because of its acts or
omissions or for some other reason, the Shareholder or former Shareholder
(or its heirs, executors, administrators or other legal representatives or
in the case of any entity, its general successor) shall be entitled out of
the assets belonging to the Trust to be held harmless from and indemnified
to the maximum extent permitted by law against all loss and expense arising
from such liability. The Trust shall, upon request by such Shareholder,
assume the defense of any claim made against such Shareholder for any act
or obligation of the Trust and satisfy any judgment thereon from the assets
of the Trust.
ARTICLE VI
Shares of Beneficial Interest
6.1 Beneficial Interest. The interest of the
beneficiaries hereunder shall be divided into an unlimited number of
transferable shares of beneficial interest, par value $.001 per share. All
Shares issued in accordance with the terms hereof, including, without
limitation, Shares issued in connection with a dividend in Shares or a
split of Shares, shall be fully paid and nonassessable when the
consideration determined by the Trustees (if any) therefor shall have been
received by the Trust.
Other Securities. The Trustees may authorize and issue
such other securities as they determine to be necessary, desirable or
appropriate, including preferred interests, debt securities or other senior
securities subject to the Fundamental Policies and the requirements of the
1940 Act. To the extent that the Trustees authorize and issue other
securitithey are hereby authorized and empowered to amend or supplement
this Declaration as is necessary or appropriate to comply with the
requirements of the 1940 Act relating to such securities or as required to
issue such securities, all without the approval of Shareholders. Any such
supplement or amendment shall be filed as is necessary. The Trustees are
also authorized to take such actions and retain such persons as they see
fit to offer and sell such securities.
6.3 Rights of Shareholders. The Shares shall be personal
property giving only the rights in this Declaration specifically set forth.
The ownership of the Trust Property of every description and the right to
conduct any business herein before described are vested exclusively in the
Trustees, and the Shareholders shall have no interest therein other than
the beneficial interest conferred by their Shares, and they shall have no
right to call for any partition or division of any property, profits,
rights or interests of the Trust nor can they be called upon to share or
assume any losses of the Trust or, subject to the right of the Trustees to
charge certain expenses directly to Shareholders as provided in the last
sentence of Section 3.8, suffer an assessment of any kind by virtue of
their ownership of Shares. Shares shall not entitle the holder thereof to
preference, preemptive, appraisal, conversion or exchange rights (except as
specified in this Section 6.3, in Section 11.4 or as specified by the
Trustees when creating the Shares).
6.4 Trust Only. It is the intention of the Trustees to create only the
relationship of Trustee and beneficiary between the Trustees and each
Shareholder from time to time. It is not the intention of the Trustees to
create a general partnership, limited partnership, limited liability
company, joint stock association, corporation, bailment or any form of
legal relationship other than a trust. Nothing in this Declaration shall be
construed to make the Shareholders, either by themselves or with the
Trustees, partners or members of a joint stock association.
6.5 Issuance of Shares. The Trustees, in their
discretion, may from time to time without vote of the Shareholders issue
Shares in addition to the then issued and outstanding Shares and Shares
held in the treasury, to such party or parties and for such amount and type
of consideration, including cash or property, at such time or times, and on
such terms as the Trustees may determine, and may in such manner acquire
other assets (including the acquisition of assets subject to, and in
connection with the assumption of, liabilities) and businesses. The
Trustees may from time to time divide or combine the Shares into a greater
or lesser number without thereby changing the proportionate beneficial
interest in such Shares. Issuances and redemptions of Shares may be made in
whole Shares and/or, as the Trustees may determine, in such fractions
thereof.
6.6 Register of Shares. A register shall be kept at the
offices of the Trust or any transfer agent duly appointed by the Trustees
under the direction of the Trustees which shall contain the names and
addresses of the Shareholders and the number of Shares held by them
respectively and a record of all transfers thereof. Separate registers
shall be established and maintained for each class. Each such register
shall be conclusive as to who are the holders of the Shares of the
applicable class and who shall be entitled to receive dividends or
distributions or otherwise to exercise or enjoy the rights of Shareholders.
No Shareholder shall be entitled to receive payment of any dividend or
distribution, nor to have notice given to him as herein provided, until he
has given his address to a transfer agent or such other officer or agent of
the Trustees as shall keep the register for entry thereon. It is not
contemplated that certificates will be issued for the Shares; provided,
however, that the Trustees, in their discretion, may authorize the issuance
of share certificates and promulgate appropriate fees therefore and rules
and regulations as to their use.
6.7 Transfer Agent and Registrar. The Trustees shall have
power to employ a transfer agent or transfer agents, and a registrar or
registrars, with respect to the Shares. The transfer agent or transfer
agents may keep the applicable register and record therein, the original
issues and transfers, if any, of the said Shares. Any such transfer agents
and/or registrars shall perform the duties usually performed by transfer
agents and registrars of certificates of stock in a corporation, as
modified by the Trustees.
6.8 Transfer of Shares. (a) Shares shall be subject to
restrictions on transfer as set forth herein.
(i) Shares may be held only through a broker or
dealer that has entered into an agreement for the provision of
shareholder services to the Trust;
(ii) Shares may not be transferred, except to any
person or entity who meets the standard as a "qualified client" within
the meaning of paragraph (d)(1)(ii)(A) of Rule 205-3 under the
Advisers Act.
(b) Any transfer of Shares that, if effective, would
not comply with Section 6.8(a) shall be void ab initio, and the purported
transferee shall acquire no rights in such Shares. If the Trustees or any
duly authorized committee thereof shall at any time determine in good faith
that a transfer has taken place that results in a violation of this Section
6.8 or that a person or entity intends to acquire or has attempted to
acquire any Shares in violation of this Section 6.8 (whether or not such
violation is intended), the Trustees or a committee thereof shall take such
action as it deems advisable to refuse to give effect to or to prevent such
transfer, including without limitation refusing to give effect to such
transfer on the books of the Trust or instituting proceedings to enjoin
such transfer or other event, provided that, notwithstanding the foregoing,
the Trustees or any committee thereof shall have the right, but not the
obligation, to repurchase such Shares from such purported transferee in
accordance with Section 8.2 hereof; provided further that any transfers or
attempted transfers in violation of this Section 6.8 shall be void ab
initio as provided above irrespective of any action (or non-action) by the
Trustees or committee thereof.
(c) In the event of an involuntary transfer (or
purported transfer) of Shares that occurs by law, including without
limitation pursuant to any jurisdiction's laws of descent and distribution,
that does not comply with paragraph (a) of this Section 6.8, the Trustees
shall have the right, but not the obligation, to repurchase such Shares in
accordance with Section 8.2 hereof.
6.9 Notices. Any and all notices to which any
Shareholder hereunder may be entitled and any and all communications shall
be deemed duly served or given if mailed, postage prepaid, addressed to any
Shareholder of record at his last known address as recorded on the
applicable register of the Trust.
ARTICLE VII
Custodians
7.1 Appointment and Duties. The Trustees shall at all times employ a
custodian or custodians, meeting the qualifications for custodians for
portfolio securities of investment companies contained in the 1940 Act, as
custodian with respect to the assets of the Trust. Any custodian shall have
authority as agent of the Trust with respect to which it is acting as
determined by the custodian agreement or agreements, but subject to such
restrictions, limitations and other requirements, if any, as may be
contained in the By-Laws of the Trust and the 1940 Act:
(a) to hold the securities owned by the Trust and
deliver the same upon written order;
(b) to receive any receipt for any moneys due to the
Trust and deposit the same in its own banking department (if a bank)
or elsewhere as the Trustees may direct;
(c) to disburse such funds upon orders or vouchers;
(d) if authorized by the Trustees, to keep the books
and accounts of the Trust and furnish clerical and accounting
services; and
(e) if authorized to do so by the Trustees, to
compute the net income or net asset value of the Trust;
all upon such basis of compensation as may be agreed upon between the Trustees
and the custodian.
The Trustees may also authorize each custodian to employ
one or more sub-custodians from time to time to perform such of the acts
and services of the custodian and upon such terms and conditions, as may be
agreed upon between the custodian and such sub-custodian and approved by
the Trustees; provided that in every case such sub-custodian shall meet the
qualifications for custodians contained in the 1940 Act.
7.2 Central Certificate System. Subject to such rules,
regulations and orders as the Commission may adopt, the Trustees may direct
the custodian to deposit all or any part of the securities owned by the
Trust in a system for the central handling of securities established by a
national securities exchange or a national securities association
registered with the Commission under the Exchange Act or such other Person
as may be permitted by the Commission, or otherwise in accordance with the
1940 Act, pursuant to which system all securities of any particular class
of any issuer deposited within the system are treated as fungible and may
be transferred or pledged by bookkeeping entry without physical delivery of
such securities; provided that all such deposits shall be subject to
withdrawal only upon the order of the Trust.
ARTICLE VIII
Redemptions; Repurchases, etc.
8.1 Redemptions. The Shares of the Trust are not
redeemable by the Shareholders.
8.2 Repurchases. Subject to the requirements of the 1940
Act, the Trustees are empowered to authorize the repurchase by the Trust
from time to time of all or any portion of the Shares, whether now or
hereafter authorized, or securities convertible into Shares of any class or
classes, whether now or hereafter authorized, upon such time, at such
prices (which may be determined by formula) and subject to such conditions
(which may include prorating shares tendered for repurchase) as the
Trustees may determine.
8.3 Disclosure of Holding. The holders of Shares or other
securities of the Trust shall, upon demand, disclose to the Trustees in
writing such information with respect to direct and indirect ownership of
Shares or other securities of the Trust as the Trustees deem necessary to
comply with the provisions of the Code, the 1940 or other applicable laws
or regulations, or to comply with the requirements of any other taxing or
regulatory authority.
ARTICLE IX
Determination of Net Asset Value, Net Income and Distributions
9.1 Net Asset Value. The net asset value of each
outstanding Share of the Trust shall be determined at such time or times on
such days as the Trustees may determine, in accordance with the 1940 Act.
The method of determination of net asset value shall be determined by the
Trustees and shall be as set forth in the Prospectus or as may otherwise be
determined by the Trustees. The power and duty to make the net asset value
calculations may be delegated by the Trustees and shall be as generally set
forth in the Prospectus or as may otherwise be determined by the Trustees.
9.2 Distributions to Shareholders.
(a) The Trustees shall from time to time distribute
ratably among the Shareholders such proportion of the net profits, surplus
(including paid-in surplus), capital or assets held by the Trustees as they
may deem proper. Such distribution may be made in cash or property
(including without limitation any type of obligations of the Trust or any
assets thereof) or any combination thereof, and the Trustees may distribute
ratably among the Shareholders additional Shares in such manner, at such
times, and on such terms as the Trustees may deem proper.
(b) In the event the Trust has outstanding more than
one class of Shares, the Trustees shall from time to time distribute
ratably among each class of Shareholders of the Trust such proportion of
the net profits, surplus (including paid-in surplus), capital or assets
attributable to such class held by the Trustees as they may deem proper or
as may otherwise be determined in the instrument creating such class of
Shares, and the Trustees may distribute ratably among the Shareholders of
each class of the Trust additional Shares of such class in such manner, at
such times, and on such terms as the Trustees may deem proper. Such
distributions to one class need not be ratable with respect to
distributions to Shares of any other class of the Trust.
(c) Distributions pursuant to this Section 9.2 may
be among the Shareholders of record at the time of declaring a distribution
or among the Shareholders of record at such later date as the Trustees
shall determine and specify at the time of declaration.
(d) The Trustees may always retain from the net
profits such amount as they may deem necessary to pay the debts or expenses
of the Trust or to meet obligations of the Trust, or as they otherwise may
deem desirable to use in the conduct of its affairs or to retain for future
requirements or extensions of the business.
(e) Inasmuch as the computation of net income and
gains for federal income tax purposes may vary from the computation thereof
on the books, the above provisions shall be interpreted to give the
Trustees the power in their discretion to distribute for any fiscal year as
ordinary dividends and as capital gains distributions, respectively,
additional amounts sufficient to enable the Trust to avoid or reduce
liability for taxes.
9.3 Power to Modify Foregoing Procedures. Notwithstanding
any of the foregoing provisions of this Article IX, the Trustees may
prescribe, in their absolute discretion except as may be required by the
1940 Act, such other bases and times for determining the per share asset
value of the Trust's Shares or net income, or the declaration and payment
of dividends and distributions as they may deem necessary or desirable for
any reason, including to enable the Trust to comply with any provision of
the 1940 Act, or the Exchange Act, or any order of exemption issued by the
Commission, all as in effect now or hereafter amended or modified.
ARTICLE X
Shareholders
10.1 Meetings of Shareholders. The Trust shall not hold annual
meetings of the Shareholders. A special meeting of Shareholders may be
called at any time by a majority of the Trustees or the President and shall
be called by any Trustee for any proper purpose upon written request of
Shareholders of the Trust holding in the aggregate not less than 51% of the
outstanding Shares of the Trust or class having voting rights, such request
specifying the purpose or purposes for which such meeting is to be called.
Any Shareholder meeting shall be held within or without the State of
Delaware on such day and at such time as the Trustees shall designate.
10.2 Voting. Shareholders shall have no power to vote on any
matter except matters on which a vote of Shareholders is required by
applicable law, this Declaration or resolution of the Trustees. Except as
otherwise provided herein, any matter required to be submitted to
Shareholders and affecting one or more classes shall require approval by
the required vote of all the affected classes of Shares voting together as
a single class; provided, however, that as to any matter with respect to
which a separate vote of any class is required by the 1940 Act, such
requirement as to a separate vote by that class shall apply in lieu of a
vote of all the affected classes voting together as a single class.
Shareholders of a particular class shall not be entitled to vote on any
matter that affects only one or more other classes. There shall be no
cumulative voting in the election or removal of Trustees. The Trustees
shall cause each matter required or permitted to be voted upon at a meeting
or by written consent of Shareholders to be submitted to a vote of all
classes of outstanding Shares entitled to vote thereon, unless the 1940
Act, other applicable law or regulations or this Declaration requires that
the actions of the Shareholders be taken by a separate vote of one or more
classes, or the Trustees determine that any matter to be submitted to a
vote of Shareholders affects only the rights or interests of one or more
(but not all) classes of outstanding Shares, in which case only the
Shareholders of the class or classes so affected shall be entitled to vote
thereon.
10.3 Notice of Meeting and Record Date. Notice of all meetings of
Shareholders, stating the time, place and purposes of the meeting, shall be
given by the Trustees by mail to each Shareholder of record entitled to
vote thereat at its registered address, mailed at least 10 days and not
more than 90 days before the meeting or otherwise in compliance with
applicable law. Only the business stated in the notice of the meeting shall
be considered at such meeting. Any adjourned meeting may be held as
adjourned one or more times without further notice not later than 120 days
after the record date. For the purposes of determining the Shareholders who
are entitled to notice of and to vote at any meeting, the Trustees may,
without closing the transfer books, fix a date not more than 90 nor less
than 10 days prior to the date of such meeting of Shareholders as a record
date for the determination of the Persons to be treated as Shareholders of
record for such purposes.
10.4 Quorum and Required Vote.
(a) The holders of a majority of the Shares entitled
to vote at the meeting present in person or by proxy shall constitute a
quorum at any meeting of the Shareholders for purposes of conducting
business on which a vote of Shareholders of the Trust is being taken. The
holders of a majority of the Shares of a class entitled to vote at the
meeting present in person or by proxy shall constitute a quorum at any
meeting of the Shareholders of such class for purposes of conducting
business on which a vote of Shareholders of such class is being taken. The
absence from any meeting, in person or by proxy, of a quorum of
Shareholders for action upon any given matter shall not prevent action at
such meeting upon any other matter or matters which may properly come
before the meeting, if there shall be present thereat, in person or by
proxy, a quorum of Shareholders in respect of such other matter.
(b) Subject to any provision of applicable law
requiring greater or lesser votes, this Declaration or resolution of the
Trustees specifying a greater or lesser vote requirement for the
transaction of any item of business at any meeting of Shareholders, (i) the
affirmative vote of a majority of the Shares present in person or
represented by proxy and entitled to vote on the subject matter shall be
the act of the Shareholders with respect to such matter, and (ii) where a
separate vote of any class is required on any matter, the affirmative vote
of a majority of the Shares of such class present in person or represented
by proxy at the meeting shall be the act of the Shareholders of such class
with respect to such matter.
10.5 Proxies, etc. At any meeting of Shareholders, any
holder of Shares entitled to vote thereat may vote by properly executed
proxy; provided that no proxy shall be voted at any meeting unless it shall
have been placed on file with the Secretary, or with such other officer or
agent of the Trust as the Secretary may direct, for verification prior to
the time at which such vote shall be taken. Pursuant to a resolution of a
majority of the Trustees, proxies may be solicited in the name of one or
more Trustees or one or more of the officers or employees of the Trust. No
proxy shall be valid after the expiration of 11 months from the date
thereof, unless otherwise provided in the proxy. Only Shareholders of
record shall be entitled to vote. Each full Share shall be entitled to one
vote and fractional Shares shall be entitled to a vote of such fraction.
When any Share is held jointly by several persons, any one of them may vote
at any meeting in person or by proxy in respect of such Share, but if more
than one of them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to any vote
to be cast, such vote shall not be received in respect of such Share. A
proxy purporting to be executed by or on behalf of a Shareholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden
of proving invalidity shall rest on the challenger. If the holder of any
such Share is a minor or a person of unsound mind and subject to
guardianship or to the legal control of any other person as regards the
charge or management of such Share, he may vote by his guardian or such
other person appointed or having such control, and such vote may be given
in person or by proxy.
10.6 Reports. The Trustees shall cause to be prepared at
least annually, and more frequently to the extent and in the form required
by law or regulation, a report of operations containing a statement of
assets and liabilities or balance sheet, a statement of income and
undistributed income of the Trust and a statement of changes in net assets,
in each case, prepared in conformity with generally accepted accounting
principles and an opinion of an independent public accountant on such
financial statements. Copies of such reports shall be mailed to all
Shareholders of record within the time required by the 1940 Act. The
Trustees shall, in addition, furnish to the Shareholders at least
semi-annually to the extent required by law, interim reports containing an
unaudited statement of assets and liabilities or balance sheet of the Trust
as of the end of such period and an unaudited statement of income and
surplus and a statement of changes in net assets, in each case, for the
period from the beginning of the current fiscal year to the end of such
period.
10.7 Inspection of Records. The records of the Trust
shall be open to inspection by Shareholders to the same extent as is
permitted shareholders of a corporation formed under the Delaware General
Corporation Law.
10.8 Shareholder Action by Written Consent. Any action
which may be taken by Shareholders by vote may be taken without a meeting
if the holders entitled to vote thereon of the proportion of Shares
required for approval of such action at a meeting of Shareholders pursuant
to Section 10.4 consent to the action in writing and the written consents
are filed with the records of the meetings of Shareholders. Such consent
shall be treated for all purposes as a vote taken at a meeting of
Shareholders.
ARTICLE XI
Duration; Termination of Trust; Amendment; Mergers, Etc.
11.1 Duration. Subject to possible termination in
accordance with the provisions of Section 11.2 hereof, the Trust created
hereby shall have perpetual existence.
11.2 Termination.
(a) the Trust may be dissolved, after a majority of the
Trustees have approved a resolution therefor, upon approval by not less
than 75% of the Shares of each class outstanding and entitled to vote,
voting as separate classes, unless such resolution has been approved by 80%
of the Trustees, in which case approval by a Majority Shareholder Vote
shall be required. Upon the dissolution of the Trust:
(i) the Trust shall carry on no business except for
the purpose of winding up its affairs;
(ii) the Trustees shall proceed to wind up the
affairs of the Trust and all of the powers of the Trustees under this
Declaration shall continue until the affairs of the Trust shall have
been wound up, including the power to fulfill or discharge the
contracts of the Trust, collect its assets, sell, convey, assign,
exchange, merge where the Trust is not the survivor, transfer or
otherwise dispose of all or any part of the remaining Trust Property
to one or more Persons at public or private sale for consideration
which may consist in whole or in part in cash, securities or other
property of any kind, discharge or pay its liabilities, and do all
other acts appropriate to liquidate its business; provided --------
that any sale, conveyance, assignment, exchange, merger in which the
Trust is not the survivor, transfer or other disposition of all or
substantially all the Trust Property of the Trust shall require
approval of the principal terms of the transaction and the nature and
amount of the consideration by Shareholders with the same vote as
required to open-end the Trust; and
(iii) after paying or adequately providing for the
payment of all liabilities, and upon receipt of such releases,
indemnities and refunding agreements, as they deem necessary for their
protection, the Trustees may distribute the remaining Trust Property,
in cash or in kind or partly each, among the Shareholders according to
their respective rights.
(b) After the winding up and termination of the
Trust and distribution to the Shareholders as herein provided, a majority
of the Trustees shall execute and lodge among the records of the Trust an
instrument in writing setting forth the fact of such termination and shall
execute and file a certificate of cancellation with the Secretary of State
of the State of Delaware. Upon termination of the Trust, the Trustees shall
thereupon be discharged from all further liabilities and duties hereunder,
and the rights and interests of all Shareholders shall thereupon cease.
11.3 Amendment Procedure.
(a) Except as provided in subsection (b) of this Section
11.3, this Declaration may be amended, after a majority of the Trustees
have approved a resolution therefor, by the affirmative vote of the holders
of not less than a majority of the affected Shares. The Trustees also may
amend this Declaration without any vote of Shareholders to divide the
Shares of the Trust into one or more classes or additional classes, to
change the name of the Trust or any class, to make any change that does not
adversely affect the relative rights or preferences of any Shareholder, as
they may deem necessary, to conform this Declaration to the requirements of
the 1940 Act or any other applicable federal laws or regulations including
pursuant to Section 6.2 or the requirements of the regulated investment
company provisions of the Code, but the Trustees shall not be liable for
failing to do so.
(b) No amendment may be made to Section 2.1, Section 2.2,
Section 3.9, Section 5.1, Section 5.2, Section 11.2(a), this Section 11.3,
Section 11.4, Section 11.6 or Section 11.7 of this Declaration and no
amendment may be made to this Declaration which would change any rights
with respect to any Shares of the Trust by reducing the amount payable
thereon upon liquidation of the Trust or by diminishing or eliminating any
voting rights pertaining thereto (except that this provision shall not
limit the ability of the Trustees to authorize, and to cause the Trust to
issue, other securities pursuant to Section 6.2), except after a majority
of the Trustees have approved a resolution therefor, by the affirmative
vote of the holders of not less than seventy-five percent (75%) of the
Shares of each class outstanding and entitled to vote, voting as separate
classes, unless such amendment has been approved by 80% of the Trustees, in
which case approval by a Majority Shareholder Vote shall be required.
Nothing contained in this Declaration shall permit the amendment of this
Declaration to impair the exemption from personal liability of the
Shareholders, Trus//tees, officers, employees and agents of the Trust or to
permit assessments upon Shareholders.
(c) An amendment duly adopted by the requisite vote of
the Board of Trustees and, if required, the Shareholders as aforesaid,
shall become effective at the time of such adoption or at such other time
as may be designated by the Board of Trustees or Shareholders, as the case
may be. A certification in recordable form signed by a majority of the
Trustees setting forth an amendment and reciting that it was duly adopted
by the Trustees and, if required, the Shareholders as aforesaid, or a copy
of the Declaration, as amended, in recordable form, and executed by a
majority of the Trustees, shall be conclusive evidence of such amendment
when lodged among the records of the Trust or at such other time designated
by the Board.
Notwithstanding any other provision hereof, until such
time as a Registration Statement under the Securities Act covering the
first public offering of Shares of the Trust shall have become effective,
this Declaration may be terminated or amended in any respect by the
affirmative vote of a majority of the Trustees or by an instrument signed
by a majority of the Trustees.
11.4 Merger, Consolidation and Sale of Assets. Except as provided in
Section 11.7, the Trust may merge or consolidate with any other
corporation, association, trust or other organization or may sell, lease or
exchange all or substantially all of the Trust Property or the property,
including its good will, upon such terms and conditions and for such
consideration when and as authorized by two-thirds of the Trustees and
approved by a majority vote of the affected Shareholders and any such
merger, consolidation, sale, lease or exchange shall be determined for all
purposes to have been accomplished under and pursuant to the statutes of
the State of Delaware.
11.5 Incorporation. Upon approval by Shareholders, the
Trustees may cause to be organized or assist in organizing, a corporation
or corporations under the laws of any jurisdiction or any other trust,
partnership, limited liability company, association or other organization
to take over all of the Trust Property or to carry on any business in which
the Trust shall directly or indirectly have any interest, and to sell,
convey and transfer the Trust Property to any such corporation, trust,
partnership, limited liability company, association or organization in
exchange for the shares or securities thereof, or otherwise, and to lend
money to, subscribe for the shares or securities of, and enter into any
contracts with any such corporation, trust, partnership, limited liability
company, association or organization, or any corporation, trust,
partnership, limited liability company, association or organization in
which the Trust holds or is about to acquire shares or any other interests.
The Trustees may also cause a merger or consolidation between the Trust or
any successor thereto and any such corporation, trust, partnership, limited
liability company, association or other organization if and to the extent
permitted by law, as provided under the law then in effect. Nothing
contained herein shall be construed as requiring approval of Shareholders
for the Trustees to organize or assist in organizing one or more
corporations, trusts, partnerships, limited liability companies,
associations or other organizations and selling, conveying or transferring
a portion of the Trust Property to such organizations or entities.
11.6 Conversion. Notwithstanding any other provisions of this Declaration
or the By-Laws of the Trust, a favorable vote of a majority of the Trustees
then in office followed by the favorable vote of the holders of not less
than seventy-five percent (75%) of the Shares of each class outstanding and
entitled to vote, voting as separate classes, shall be required to approve,
adopt or authorize an amendment to this Declaration that makes the Shares
or any other class of units of beneficial interest of the Trust a
"redeemable security" as that term is defined in the 1940 Act, unless such
amendment has been approved by 80% of the Trustees, in which case approval
by a Majority Shareholder Vote shall be required. Upon the adoption of a
proposal to convert the Trust from a "closed-end company" to an "open-end
company" as those terms are defined by the 1940 Act and the necessary
amendments to this Declaration to permit such a conversion of the Trust's
outstanding Shares entitled to vote, the Trust shall, upon complying with
any requirements of the 1940 Act and state law, become an "open-end"
investment company. Such affirmative vote or consent shall be in addition
to the vote or consent of the holders of the Shares otherwise required by
law, or any agreement between the Trust and any national securities
exchange.
11.7 Certain Transactions.
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(a) Notwithstanding any other provision of this Declaration and subject to
the exceptions provided in paragraph (d) of this Section, the types of
transactions described in paragraph (c) of this Section shall require the
affirmative vote or consent of a majority of the Trustees then in office
followed by the affirmative vote of the holders of not less than
seventy-five percent (75%) of the Shares of each class outstanding and
entitled to vote, voting as separate classes, when a Principal Shareholder
(as defined in paragraph (b) of this Section) is a party to the
transaction. Such affirmative vote or consent shall be in addition to the
vote or consent of the holders of Shares otherwise required by law or by
the terms of any class or series of preferred stock, whether now or
hereafter authorized, or any agreement between the Trust and any national
securities exchange.
(b) The term "Principal Shareholder" shall mean any corporation, Person or
other entity which is the beneficial owner, directly or indirectly, of five
percent (5%) or more of the outstanding Shares and shall include any
affiliate or associate, as such terms are defined in clause (ii) below, of
a Principal Shareholder. For the purposes of this Section, in addition to
the Shares which a corporation, Person or other entity beneficially owns
directly, (a) any corporation, Person or other entity shall be deemed to be
the beneficial owner of any Shares (i) which it has the right to acquire
pursuant to any agreement or upon exercise of conversion rights or
warrants, or otherwise (but excluding share options granted by the Trust)
or (ii) which are beneficially owned, directly or indirectly (including
Shares deemed owned through application of clause (i) above), by any other
corporation, Person or entity with which its "affiliate" or "associate" (as
defined below) has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of Shares, or which is
its "affiliate" or "associate" as those terms are defined in Rule 12b-2 of
the General Rules and Regulations under the Exchange Act, and (b) the
outstanding Shares shall include Shares deemed owned through application of
clauses (i) and (ii) above but shall not include any other Shares which may
be issuable pursuant to any agreement, or upon exercise of conversion
rights or warrants, or otherwise.
(c) This Section shall apply to the following transactions:
(i) the merger or consolidation of the Trust or any
subsidiary of the Trust with or into any Principal Shareholder;
(ii) the issuance of any securities of the Trust to any
Principal Shareholder for cash (other than pursuant to any automatic
dividend reinvestment plan);
(iii) the sale, lease or exchange of all or any
substantial part of the assets of the Trust to any Principal Shareholder
(except assets having an aggregate fair market value of less than
$1,000,000, aggregating for the purpose of such computation all assets
sold, leased or exchanged in any series of similar transactions within a
twelve-month period); or
(iv) the sale, lease or exchange to the Trust or any subsidiary
thereof, in exchange for securities of the Trust, of any assets of
any Principal Shareholder (except assets having an aggregate fair
market value of less than $1,000,000, aggregating for the purposes
of such computation all assets sold, leased or exchanged in any
series of similar transactions within a twelve-month period).
(d) The provisions of this Section shall not be applicable to (i) any of
the transactions described in paragraph (c) of this Section if 80% of the
Trustees shall by resolution have approved a memorandum of understanding
with such Principal Shareholder with respect to and substantially
consistent with such transaction, in which case approval by a Majority
Shareholder Vote shall be required, or (ii) any such transaction with any
corporation of which a majority of the outstanding shares of all classes of
a stock normally entitled to vote in elections of directors is owned of
record or beneficially by the Trust and its subsidiaries.
(e) The Board of Trustees shall have the power and duty to determine for
the purposes of this Section on the basis of information known to the Trust
whether (i) a corporation, person or entity beneficially owns five percent
(5%) or more of the outstanding Shares, (ii) a corporation, person or
entity is an "affiliate" or "associate" (as defined above) of another,
(iii) the assets being acquired or leased to or by the Trust or any
subsidiary thereof constitute a substantial part of the assets of the Trust
and have an aggregate fair market value of less than $1,000,000, and (iv)
the memorandum of understanding referred to in paragraph (d) hereof is
substantially consistent with the transaction covered thereby. Any such
determination shall be conclusive and binding for all purposes of this
Section.
ARTICLE XII
Miscellaneous
12.1 Filing. This Declaration and any amendment hereto shall be filed in
such places as may be required or as the Trustees deem appropriate. Each
amendment shall be accompanied by a certificate signed and acknowledged by
a Trustee stating that such action was duly taken in a manner provided
herein, and shall, upon insertion in the Trust's minute book, be conclusive
evidence of all amendments contained therein. A restated Declaration,
containing the original Declaration and all amendments theretofore made,
may, subject to the second paragraph of Section 11.3(c), be executed from
time to time by a majority of the Trustees and shall, upon insertion in the
Trust's minute book, be conclusive evidence of all amendments contained
therein and may thereafter be referred to in lieu of the original
Declaration and the various amendments thereto.
12.2 Resident Agent. The Trust shall maintain a resident agent in the State
of Delaware, which agent shall initially be The Corporation Trust Company,
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. The Trustees may designate
a successor resident agent; provided, however, that such appointment shall
not become effective until written notice thereof is delivered to the
office of the Secretary of the State.
12.3 Governing Law. This Declaration is executed by the Trustees and
delivered in the State of Delaware and with reference to the laws thereof,
and the rights of all parties and the validity and construction of every
provision hereof shall be subject to and construed according to laws of
said State and reference shall be specifically made to the Delaware General
Corporation Law as to the construction of matters not specifically covered
herein or as to which an ambiguity exists, although such law shall not be
viewed as limiting the powers otherwise granted to the Trustees hereunder
and any ambiguity shall be viewed in favor of such powers.
12.4 Counterparts. This Declaration may be simultaneously executed in
several counterparts, each of which shall be deemed to be an original, and
such counterparts, together, shall constitute one and the same instrument,
which shall be sufficiently evidenced by any such original counterpart.
12.5 Reliance by Third Parties. Any certificate executed by an individual
who, according to the records of the Trust, or of any recording office in
which this Declaration may be recorded, appears to be a Trustee hereunder,
certifying to: (a) the number or identity of Trustees or Shareholders, (b)
the name of the Trust, (c) the due authorization of the execution of any
instrument or writing, (d) the form of any vote passed at a meeting of
Trustees or Shareholders, (e) the fact that the number of Trustees or
Shareholders present at any meeting or executing any written instrument
satisfies the requirements of this Declaration, (f) the form of any By-Laws
adopted by or the identity of any officers elected by the Trustees, or (g)
the existence of any fact or facts which in any manner relate to the
affairs of the Trust, shall be conclusive evidence as to the matters so
certified in favor of any person dealing with the Trustees and their
successors.
12.6 Provisions in Conflict with Law or Regulation.
(a) The provisions of this Declaration 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 Code or with other applicable laws and
regulations, the conflicting provision shall be deemed never to have
constituted a part of this Declaration; provided, however, that such
determination shall not affect any of the remaining provisions of this
Declaration or render invalid or improper any action taken or omitted prior
to such determination.
(b) If any provision of this Declaration shall be held
invalid orunenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction
and shall not in any manner affect such provision in any other jurisdiction
or any other provision of this Declaration in any jurisdiction.
IN WITNESS WHEREOF, the undersigned has caused these
presents to be executed as of the day and year first above written.
Xxxxxx X. Xxxxxx
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Sole Trustee
