EXHIBIT 2(a)(i)
UM ALTERNATIVE INVESTMENT TRUST
AGREEMENT AND DECLARATION OF TRUST
THIS AGREEMENT AND DECLARATION OF TRUST made at Boston, Massachusetts,
this 12th day of November, 2001 by the Trustees hereunder and by the holders of
shares of beneficial interest to be issued hereunder as hereinafter provided:
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 "UM Alternative Investment
Trust", 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), or
(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.
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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 shall 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. The number of Shares
authorized shall be unlimited. 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.
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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, proceeding or claim on behalf of the Trust or any Series or Class
without first making demand on the Trustees requesting the Trustees to bring or
maintain such action, proceeding or claim. Such demand shall be excused only
when the plaintiff makes a specific showing that irreparable 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
in reasonable detail 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 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
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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 not be assigned, transferred, pledged, mortgaged,
hypothecated, sold or otherwise disposed of, encumbered or conveyed
(collectively, a "Transfer"), 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 the
President 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 claim for monetary damages against the Trust or the
Trustees predicated upon an express or implied right of action under this
Declaration of Trust or the 1940 Act (excepting rights of action permitted under
Section 36(b) of the 1940 Act), nor shall any single Shareholder, who is
similarly situated to one or more other Shareholders with respect to an alleged
injury, 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
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 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. XxXxxxx, Xx. 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
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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 of the Classes or Series of Shares entitled to vote for the
election of such Trustee, 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
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
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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) 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;
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(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 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
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(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 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.
The Trustees shall have the power, as frequently as they may determine,
to cause each Shareholder, or each Shareholder of any particular Series or
Class, to pay directly, in advance or arrears, for charges of the Trust's
custodian or transfer, shareholder servicing or similar agent, an amount fixed
from time to time by the Trustees, by setting off such charges due from such
Shareholder from declared but unpaid dividends owed such Shareholder and/or by
reducing the number of Shares in the account of such Shareholder by that number
of full and/or fractional Shares which represents the outstanding amount of such
charges due from such Shareholder.
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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, 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, 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, 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, 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, trusts,
associations or other organizations, or has other business or
interests
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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 Manager or sub-adviser, to the extent
required by the 1940 Act, (iii) with respect to any amendment of this
Declaration of Trust to the extent and as provided in Article IX, Section 8 of
this Declaration of Trust, (iv) with respect to certain transactions and other
matters to the extent and as provided in Article V, Section 6 and 7 of this
Declaration of Trust, (v) with respect to any termination of this Trust to the
extent and as provided in Article IX, Section 5 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 5 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 (vi) 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.
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MEETINGS
Section 2. Meetings of the Shareholders may be called by the Trustees
for the purpose of electing Trustees as provided in Article IV, Section 1 of
this Declaration of Trust and 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.
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, forty percent (40%) 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 forty percent (40%) 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. Any adjourned session or
sessions may be held, within a reasonable time after the date set for the
original meeting, without the necessity of further notice. 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
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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 for Shareholders'
votes and 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,
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; and
(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.
(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) or (a)(iii) of this Section 6.
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CONVERSION TO OPEN-END COMPANY
Section 7. Notwithstanding any other provisions in this Declaration of
Trust or the By-Laws, the conversion of the Trust or any Series of Shares from a
"closed-end company" to an "open-end company," as those terms are defined in
Sections 5(a)(2) and 5(a)(1), respectively, of the 1940 Act (as in effect on the
date of this Declaration of Trust), together with any necessary amendments to
this Declaration of Trust to permit such a conversion, shall require the
affirmative vote or consent of at least seventy-five percent (75%) of each
Series and Class of Shares outstanding and entitled to vote on the matter,
unless a majority of the Trustees and seventy-five percent (75%) of the
Continuing Trustees entitled to vote on the matter approve such conversion and
related actions. In the event of such approval by the Trustees and the
Continuing Trustees as referred to in the preceding sentence, the 1940 Act shall
govern whether and to what extent a vote or consent of Shares shall be required
to approve such conversion and related actions. Any affirmative vote or consent
required under this Section 7 shall be in addition to the vote or consent of the
Shareholders otherwise required by law or by any agreement between the Trust and
any national securities exchange.
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 as determined in
accordance with the By-Laws.
REPURCHASES
Section 2. 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.
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REDEMPTIONS AT THE OPTION OF THE TRUST
Section 3. The Trust shall have the right at its option and at any time
to redeem Shares of any Shareholder at the net asset value thereof as determined
in accordance with the By-Laws: (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.
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.
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ARTICLE VIII
INDEMNIFICATION
TRUSTEES, OFFICERS, ETC.
Section 1. The By-Laws may include provisions whereby the Trust may
provide indemnity to 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. Any indemnity provided to Covered Persons by the
By-Laws may, if the By-Laws so provide, be in addition to any other indemnity to
which such persons may be entitled by law, contract or otherwise.
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
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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.
SHAREHOLDERS
Section 2. 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.
TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY
Section 3. 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.
LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES
Section 4. 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 5. 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 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. For the avoidance of any doubt and notwithstanding anything to the
contrary in this Declaration of
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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 5. 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 6. 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 and with the Boston City Clerk, 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 7. 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.
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AMENDMENTS
Section 8.
(a) Except to the extent that this Declaration of Trust, the
By-Laws or applicable law may require a higher vote or the separate
vote of one or more Classes or Series of Shares, and except as provided
in paragraph (b) of this Section 8, this Declaration of Trust may be
amended at any time by an instrument in writing signed by a majority of
the then Trustees when authorized to do so by a vote of Shareholders
holding a majority of the Shares entitled to vote, 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 and Classes shall be authorized by vote of
the Shareholders holding a majority of the Shares entitled to vote of
each Series and Class affected and no vote of Shareholders of a Series
or Class not affected shall be required. Amendments having the purpose
of changing the name of the Trust, of establishing, changing or
eliminating the par value of any Shares or of supplying any omission,
curing any ambiguity or curing, correcting or supplementing any
defective or inconsistent provision contained herein shall not require
authorization by vote of any Shareholders.
(b) Except to the extent that this Declaration of Trust, the
By-Laws or applicable law may require a higher vote or the separate
vote of one or more Series or Classes of Shares, no amendment may be
made under this Section 8 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, Sections 6 and 7; Article VII, Section 2; Article VIII; or this
Article IX, Sections 1, 2, 3, 4, 5 or 8(b) 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
and shall receive the affirmative vote or consent of at least
seventy-five percent (75%) of the Shares entitled to vote; provided,
however, that such affirmative vote or consent shall be in addition to
any vote or consent of the Shareholders otherwise required by
applicable law or by the terms of any agreement between the Trust and
any national securities exchange.
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IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal
in the City of Boston, Massachusetts for himself and his assigns, as of the day
and year first above written.
XXXX X. XXXXXXX, XX.
--------------------
Xxxx X. XxXxxxx, Xx.
THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Boston, November 12, 2001
Then personally appeared the above named Xxxx X. XxXxxxx, Xx. and
acknowledged the foregoing instrument to be his free act and deed, before me,
XXXX GOOD
---------------------------
Notary Public
My Commission Expires: April 22, 2005
Trustee: Xxxx X. XxXxxxx, Xx.
00 Xxxxxxxx, Xxxxxx
Xxxxxxxxx, XX 00000
Trust Address: x/x Xxxxx & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Registered
Agent: Corporate Service Company
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
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