Effective as of
July 17, 2009
AGREEMENT AND DECLARATION OF TRUST
OF
MADISON AVENUE GLOBAL FUND
A DELAWARE STATUTORY TRUST
PRINCIPAL PLACE OF BUSINESS:
000 XXXXXXX XXXXXX, 0XX XXXXX
XXX XXXX, XXX XXXX 00000
TABLE OF CONTENTS
ARTICLE I NAME AND DEFINITIONS.............................................1
Section 1. Name.........................................................1
Section 2. Definitions..................................................1
ARTICLE II PURPOSE OF TRUST................................................2
ARTICLE III SHARES OF BENEFICIAL INTEREST..................................3
Section 1. Description of Shares........................................3
Section 2. Ownership of Shares..........................................3
Section 3. Investments in the Trust; Consideration......................4
Section 4. Status of Shares and Limitation of Personal Liability........4
Section 5. Power of Board of Trustees to Change Provisions
Relating to Shares...........................................4
Section 6. Establishment and Designation of Series and Classes..........5
Section 7. Indemnification of Shareholders..............................7
ARTICLE IV THE BOARD OF TRUSTEES...........................................7
Section 1. Number, Election and Tenure..................................7
Section 2. Effect of Death, Resignation, etc. of a Trustee..............8
Section 3. Powers.......................................................8
Section 4. Payment of Expenses by the Trust............................11
Section 5. Payment of Expenses by Shareholders.........................11
Section 6. Ownership of Assets of the Trust............................12
Section 7. Service Contracts...........................................12
ARTICLE V SHAREHOLDERS' VOTING POWERS.....................................13
ARTICLE VI NET ASSET VALUE, DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES....13
Section 1. Determination of Net Asset Value, Net Income, Dividends
and Distributions...........................................13
Section 2. Redemptions by Shareholders.................................14
Section 3. Redemptions at the Option of the Trust......................14
Section 4. Repurchases.................................................14
ARTICLE VII COMPENSATION AND LIMITATION OF LIABILITY OF TRUSTEES..........14
Section 1. Compensation................................................14
Section 2. Indemnification and Limitation of Liability.................14
Section 3. Trustee's Good Faith Action; Expert Advice; No
Bond or Surety..............................................15
Section 4. Insurance...................................................15
ARTICLE VIII MISCELLANEOUS................................................15
Section 1. Liability of Third Persons Dealing with Trustees............15
Section 2 Termination of Trust or Series or Class......................15
Section 3. Conversion to an Open-End Investment Program................16
Section 4. Merger and Consolidation....................................16
Section 6. Amendments..................................................17
Section 6. Filing of Copies; References; Headings......................17
Section 7. Applicable Law..............................................17
Section 8. Provisions in Conflict with Law or Regulations..............18
Section 9. Statutory Trust Only........................................18
-i-
DECLARATION OF TRUST
OF
MADISON AVENUE GLOBAL FUND
WHEREAS, THIS DECLARATION OF TRUST (the "Declaration") is made
and entered into as of the date set forth below by the trustee named hereunder
(the "Initial Trustee") for the purpose of forming a Delaware statutory trust in
accordance with the provisions hereinafter set forth,
NOW, THEREFORE, the Initial Trustee is filing a Certificate of
Trust with the Office of the Secretary of State of the State of Delaware and
hereby declares that all money and property contributed to the trust established
hereby shall be held and managed in trust for the benefit of the persons who may
from time to time hold beneficial interests issued hereunder and subject to the
provisions hereof, to wit:
ARTICLE I
NAME AND DEFINITIONS
Section 1. Name.
The name of the trust established pursuant to this Declaration is
Madison Avenue Global Fund and, insofar as may be practicable, the Trustees
shall conduct the Trust's activities, execute all documents and xxx or be sued
under that name, which name (and the word "Trust" wherever herein used) shall
refer to the Trustees as trustees, and not as individuals, or personally, and
shall not refer to the officers, agents, employees or Shareholders of the Trust.
If the Trustees determine that the Trust's use of such name is not advisable,
then the Trustees may adopt such other name for the Trust as they deem proper
and the Trust may hold its property and conduct its activities under such other
name.
Section 2. Definitions.
Whenever used herein, unless otherwise required by the context or
specifically provided:
(a) The "Trust" refers to the Delaware statutory trust
established hereby, by whatever name it be known, inclusive of each and every
Series established hereunder;
(b) The "Trust Property" means any and all assets and property,
real or personal, tangible or intangible, which are owned or held by or for the
account of the Trust or the Trustees;
(c) "Trustee" refers to the Initial Trustee who has signed this
Declaration, so long as such person continues in office in accordance with the
terms hereof, and all other individuals who may from time to time be duly
elected or appointed to serve as Trustees
-1-
hereunder in accordance with the provisions hereof, so long as such persons
continue in office in accordance with the terms hereof, and all references
herein to a Trustee or the Trustees shall refer to such person or persons in
their capacity as trustees hereunder;
(d) "Shares" means the units of beneficial interest into which
the beneficial interest in the Trust and each Series of the Trust shall be
divided from time to time and includes fractions of Shares as well as whole
Shares;
(e) "Shareholder" means a record owner of outstanding Shares;
(f) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures, estates and other entities,
whether or not legal entities, and governments and agencies and political
subdivisions thereof, whether domestic or foreign;
(g) The "1940 Act" refers to the Investment Company Act of 1940
and the rules and regulations thereunder, all as amended from time to time and
any orders thereunder which may from time to time be applicable to the Trust;
(h) The terms "Commission" and "Principal Underwriter" shall have
the meanings given them in the 1940 Act;
(i) "Declaration" shall mean this Agreement and Declaration of
Trust, as amended and in effect from time to time. Reference in this Declaration
of Trust to "Declaration," "hereof," "herein," "hereby," and "hereunder" shall
be deemed to refer to this Declaration rather than the article or section in
which such words appear;
(j) "By-Laws" shall mean the By-Laws of the Trust referred to in
Article IV, Section 3 hereof, as amended from time to time and incorporated
herein by reference;
(k) The term "Interested Person" has the meaning given it in the
1940 Act;
(l) "Investment Adviser" means a party furnishing investment
advisory services to the Trust pursuant to any contract described in Article IV,
Section 7(a) hereof;
(m) "Series" refers to each Series of the Trust established and
designated under or in accordance with the provisions of Article III hereof; and
(n) "Board of Trustees" means such individuals who at any time
from time to time constitute the Trustees.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the
business of a management investment company registered under the 1940 Act.
-2-
ARTICLE III
SHARES OF BENEFICIAL INTEREST
Section 1. Description of Shares.
The beneficial interest in the Trust shall at all times be
divided into transferable units to be called Shares of Beneficial Interest, each
with a par value of one tenth of one cent ($.001). The Trustees may, from time
to time, authorize the division of Shares into separate Series and the division
of any Series into two or more separate classes of Shares, as they deem
necessary and desirable and, in each case, to the extent permitted by applicable
law, rule or order. The different Series (and classes) shall be established and
designated, and the variations in the relative rights and preferences as between
the different Series (and classes) shall be fixed and determined, by the
Trustees, without the requirement of Shareholder approval. If only one or no
Series (or classes) shall be established, the Shares shall have the rights and
preferences provided for herein and in Section 6 of this Article III to the
extent relevant and not otherwise provided for herein, and all references to
Series (and classes) shall be construed (as the context may require) to refer to
the Trust.
Subject to the provisions of Section 6 of this Article III, each
Share shall have voting rights as provided in Article V hereof and in the
By-Laws, and holders of the Shares of any Series shall be entitled to receive
dividends, when, if and as declared with respect thereto in the manner provided
in Article VI, Section 1 hereof. No Shares shall have any priority or preference
over any other Shares of the same Series (and class) with respect to dividends
or distributions upon termination of the Trust or of such Series (or class) made
pursuant to Article VIII, Section 2 hereof. All dividends and distributions
shall be made ratably among all Shareholders of a particular Series (or class
thereof) from the assets held with respect to such Series according to the
number of Shares of such Series (or class thereof) held of record by such
Shareholder on the record date for any dividend or distribution or on the date
of termination, as the case may be. Shareholders shall have no preemptive or
other right to subscribe to any additional Shares or other securities issued by
the Trust or any Series (or class). The Trustees may from time to time divide or
combine the Shares of any particular Series (or class) without thereby
materially changing the proportionate beneficial interest of the Shares of that
Series (or class) in the assets held with respect to that Series or materially
affecting the rights of Shares of any other Series (or class).
The number of authorized Shares and the number of Shares of each
Series (and class) that may be issued is unlimited. To the extent permitted by
applicable law, rule or order, the Trustees may classify or reclassify any
unissued Shares or any Shares previously issued and reacquired of any Series (or
class) into one or more Series (or classes) that are now or hereafter
established and designated from time to time. The Trustees may hold as treasury
Shares, reissue for such consideration and on such terms as they may determine,
or cancel, at their discretion from time to time, any Shares of any Series (or
class) reacquired by the Trust.
Section 2. Ownership of Shares.
The ownership of Shares shall be recorded on the books of the
Trust or of a transfer or similar agent for the Trust, which books shall be
maintained separately for the Shares of each Series (and class). No certificates
certifying the ownership of Shares shall be issued
-3-
except as the Board of Trustees may otherwise determine from time to time. The
Trustees may make such rules as they consider appropriate for the transfer of
Shares of each Series (or class) 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 (or class) and
as to the number of Shares of each Series (or class) held from time to time by
each Shareholder.
Section 3. Investments in the Trust; Consideration.
Shares of the Trust shall be offered for sale and sold in such
manner and at such times, and subject to such requirements and for such
consideration, as may be determined from time to time by the Trustees, subject
to applicable requirements of law, including the 1940 Act. To the extent
permitted by applicable law, Shares may be sold subject to imposition of such
sales charges (such as a sales load), deferred sales charges, redemption or
repurchase fees (as applicable), small balance fees and such other fees and
charges as may be determined by the Trustees. All Shares when issued on the
terms determined by the Trustees shall be fully paid and non-assessable.
Section 4. Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving only the
rights provided in this instrument. Every Shareholder by virtue of having become
a Shareholder shall be held to have expressly assented and agreed to the terms
hereof and to have become a party hereto. The death of a Shareholder during the
existence of the Trust shall not operate to terminate the Trust, and shall not
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
entitles such representative only to the rights of said deceased Shareholder
under this Trust. Ownership of Shares shall not entitle the Shareholder to any
title in or to the whole or any part of the Trust Property or to any right to
call for a partition or division of the same or for an accounting, nor shall the
ownership of Shares constitute the Shareholders as partners. Neither the Trust
nor the Trustees, nor any officer, employee or agent of the Trust shall have any
power to bind personally any Shareholders, nor, except as specifically provided
herein, 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.
Section 5. Power of Board of Trustees to Change Provisions Relating to
Shares.
Notwithstanding any other provisions of this Declaration and
without limiting the power of the Board of Trustees to amend the Declaration as
provided elsewhere herein, the Board of Trustees shall have the power to amend
this Declaration, at any time and from time to time, in such manner as the Board
of Trustees may determine in its sole discretion, without the need for
Shareholder action, so as to add, delete, replace or otherwise modify any
provisions relating to the Shares contained in this Declaration, provided that
before adopting any such amendment without Shareholder approval the Board of
Trustees shall determine that it is consistent with the fair and equitable
treatment of all Shareholders or that Shareholder approval is not otherwise
required by the 1940 Act or other applicable law. If Shares have been issued,
Shareholder approval shall be required to adopt any amendments to this
Declaration which
-4-
would adversely affect to a material degree the rights and preferences of the
Shares or to increase or decrease the par value of the Shares.
Section 6. Establishment and Designation of Series and Classes.
If so authorized, the establishment and designation of any Series
(or class) shall be effective upon the execution by a majority of the Trustees
of an instrument setting forth such establishment and designation and the
relative rights and preferences of the Shares of such Series (or class), or as
otherwise provided in such instrument. Each instrument referred to in this
paragraph shall have the status of an amendment to this Declaration.
Shares of any Series (or class) hereafter established pursuant to
this Section 6, unless otherwise provided in the instrument establishing such
Series (or class), shall have the following relative rights and preferences:
(a) ASSETS HELD WITH RESPECT TO A PARTICULAR SERIES OR CLASS. All
consideration received by the Trust for the issuance or sale of Shares of a
particular Series (or class), together with all assets in which such
consideration is invested or reinvested, all income, earnings and profits
thereon, and the proceeds thereof, from whatever source derived, including,
without limitation, any proceeds derived from the sale, exchange or liquidation
of such assets, and any funds or payments derived from any reinvestment of such
proceeds in whatever form the same may be, shall irrevocably be held with
respect to that Series (or class) for all purposes, subject only to the rights
of creditors of such Series, and shall be so recorded upon the books of account
of the Trust. All such consideration, assets, income, earnings, profits and
proceeds thereof of a Series (or class), are herein referred to as "assets held
with respect to" that Series (or class). In the event that there are any assets,
income, earnings, profits and proceeds thereof, funds or payments which are not
readily identifiable as assets held with respect to any particular Series (or
class) (collectively "General Assets"), the Trustees shall allocate such General
Assets to, between or among any one or more of the Series (or classes) in such
manner and on such basis as the Trustees, in their sole discretion, deem fair
and equitable, and any General Assets so allocated to a particular Series (or
class) shall be assets held with respect to that Series (or class). Each such
allocation by the Trustees shall be conclusive and binding upon the Shareholders
of all Series (and classes) for all purposes.
-5-
(b) LIABILITIES ATTRIBUTABLE TO A PARTICULAR SERIES OR CLASS. The
assets of the Trust held with respect to each particular Series (and class)
shall be charged with all liabilities, expenses, costs, charges and reserves
attributable to that Series (or class). All such liabilities, expenses, costs,
charges, and reserves so charged to a Series (or class) are herein referred to
as "liabilities attributable to" that Series (or class). Any liabilities of the
Trust which are not readily identifiable as being attributable to any particular
Series (or class) ("General Liabilities") shall be allocated and charged by the
Trustees to, between or among any one or more of the Series (or classes) in such
manner and on such basis as the Trustees, in their sole discretion, deem fair
and equitable, and any General Liabilities so allocated to a particular Series
(or class) shall be liabilities attributable to that Series (or class). Each
such allocation of liabilities, expenses, costs, charges and reserves by the
Trustees shall be conclusive and binding upon the holders of all Series (and
classes) for all purposes. All Persons who have extended credit which has been
allocated to a particular Series, or who have a claim or contract which has been
allocated to any particular Series, shall look, and shall be required by
contract to look exclusively, to the assets of that particular Series for
payment of such credit, claim or contract. In the absence of an express
contractual agreement so limiting the claims of such creditors, claimants and
contract providers, each creditor, claimant and contract provider will be deemed
nevertheless to have impliedly agreed to such limitation unless an express
provision to the contrary has been incorporated in the written contract or other
document establishing the claimant relationship.
(c) DIVIDENDS, DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES.
Notwithstanding any other provisions of this Declaration, including, without
limitation, Article VI, no dividend or distribution including, without
limitation, any distribution paid upon termination of the Trust or of any Series
(or class) with respect to, nor any redemption or repurchase of, the Shares of
any Series (or class) shall be effected by the Trust other than from the assets
held with respect to such Series (or class), nor, except as specifically
provided in Section 7 of this Article III, shall any Shareholder of any
particular Series (or class) otherwise have any right or claim against the
assets held with respect to any other Series (or class) except to the extent
that such Shareholder has such a right or claim hereunder as a Shareholder of
such other Series (or class). The Trustees shall have full discretion, to the
extent not inconsistent with the 1940 Act, to determine which items shall be
treated as income or capital gains and which items shall be treated as capital;
and each such determination and allocation shall be conclusive and binding upon
the Shareholders.
(d) VOTING. Except as otherwise provided herein, all Shares of
the Trust entitled to vote on a matter shall vote separately by Series (and, if
applicable, by class): that is, the Shareholders of each Series (or class) shall
have the right to approve or disapprove matters affecting the Trust and that
Series (or class) as if the Series (or class) were separate companies.
There are, however, two exceptions to voting by separate Series
(or classes). First, if as to any matter the 1940 Act requires or permits all
Shares entitled to vote with respect to such matter to be voted in the aggregate
without differentiation between the separate Series (or classes), then all
Shares entitled to vote on such matter shall vote as a single class. Second, if
any matter affects only the interests of some but not all Series (or classes),
then only the Shareholders of such affected Series (or classes) shall be
entitled to vote on the matter.
-6-
(e) EQUALITY. All the Shares of each particular Series (or class)
shall represent an equal proportionate interest in the assets held with respect
to that Series (or class) (subject to the liabilities attributable to that
Series (or class) and such rights and preferences as may have been established
and designated with respect to classes of Shares within such Series (or class)),
and each Share of any particular Series (or class) shall be equal to each other
Share of that Series (or class).
(f) FRACTIONAL SHARES. Any fractional Share of a Series (or
class) shall carry proportionately all the rights and obligations of a whole
share of that Series (or class), including rights with respect to voting,
receipt of dividends and distributions, redemption of Shares and termination of
the Trust.
(g) EXCHANGE PRIVILEGE. The Trustees shall have the authority to
provide that the holders of Shares of any Series (or class) shall have the right
to exchange said Shares for Shares of one or more other Series (or classes) of
Shares in accordance with such requirements, limitations and procedures as may
be established by the Trustees.
Section 7. Indemnification of Shareholders.
If any Shareholder or former Shareholder shall be exposed to
liability by reason of a claim or demand relating to his or her being or having
been a Shareholder, and not because of his or her acts or omissions, 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 to
be held harmless from and indemnified out of the assets of the Trust against all
loss and expense arising from such claim or demand.
ARTICLE IV
THE BOARD OF TRUSTEES
Section 1. Number, Election and Tenure.
The number of Trustees constituting the Board of Trustees shall
be fixed from time to time by a written instrument signed, or by resolution
approved at a duly constituted meeting, by a majority of the Board of Trustees;
provided, however, that the number of Trustees shall in no event be less than
one (1) nor more than fifteen (15). Except as required by the 1940 Act, Trustees
need not be elected by Shareholders. The Board of Trustees, by action of a
majority of the then remaining Trustees at a duly constituted meeting, may fill
vacancies in the Board of Trustees or remove Trustees with or without cause;
except that a vacancy shall be filled only by a person elected by Shareholders
if required by the 1940 Act. Each Trustee shall serve during the continued
lifetime of the Trust until he dies, resigns, is declared bankrupt or
incompetent by a court of appropriate jurisdiction, 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 successor. Any
Trustee may resign at any time by written instrument signed by him 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
-7-
Trustee resigning and no Trustee removed shall have any right to any
compensation for any period following his resignation or removal, or any right
to damages on account of such removal. The Shareholders may elect Trustees at
any meeting of Shareholders called by the Trustees for that purpose. Any Trustee
may be removed at any meeting of Shareholders by a vote of two-thirds of the
outstanding Shares of the Trust. A meeting of Shareholders for the purpose of
electing or removing one or more Trustees shall be called (i) by the Trustees
upon their own vote, or (ii) upon the demand of a Shareholder or Shareholders
owning Shares representing 10% or more of all votes entitled to be cast by
outstanding Shares.
Section 2. Effect of Death, Resignation, etc. of a Trustee.
The death, declination, resignation, retirement, removal or
incapacity of one or more Trustees, or all of them, shall not operate to annul
the Trust or to revoke any existing agency created pursuant to the terms of this
Declaration. Whenever a vacancy in the Board of Trustees shall occur, until such
vacancy is filled as provided in Article IV, Section 1, 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. As conclusive evidence of such vacancy, a written instrument
certifying the existence of such vacancy may be executed by an officer of the
Trust or by a majority of the Board of Trustees. In the event of the death,
declination, resignation, retirement, removal or incapacity of all the then
Trustees within a short period of time and without the opportunity for at least
one Trustee being able to appoint additional Trustees to fill vacancies, the
Trust's Investment Adviser hereby is empowered to appoint new Trustees, subject
to the provisions of Section 16(a) of the 1940 Act.
Section 3. Powers.
Subject to the provisions of this Declaration, the business of
the Trust shall be managed by the Board of Trustees, and such Board shall have
all powers necessary or convenient to carry out that responsibility. Without
limiting the foregoing, the Trustees may: (i) adopt By-Laws not inconsistent
with this Declaration providing for the regulation and management of the affairs
of the Trust and may amend and repeal the By-Laws to the extent that such
By-Laws do not reserve that right to the Shareholders; (ii) elect persons to
serve as Trustees and fill vacancies in the Board of Trustees, and remove
Trustees from such Board in accordance with the provisions of this Declaration,
and may elect and remove such officers and appoint and terminate such agents as
they consider appropriate; (iii) appoint from their own number and establish and
terminate one or more committees consisting of one or more Trustees which may
exercise the powers and authority of the Board of Trustees to the extent that
the Trustees determine; (iv) employ one or more custodians of the assets of the
Trust and may authorize such custodians to employ sub-custodians and to deposit
all or any part of such assets in a system or systems for the central handling
of securities or with a Federal Reserve Bank, retain a transfer agent or a
shareholder servicing agent, or both, and employ such other Persons as the
Trustees may deem desirable for the transaction of business of the Trust or any
Series; (v) provide for the issuance, sale and distribution of Shares by the
Trust directly or through one or more Principal Underwriters or otherwise; (vi)
redeem, repurchase, retire, cancel, acquire, hold, resell, reissue, classify,
reclassify, and transfer and otherwise deal in Shares pursuant to applicable
law; (vii) set record dates for the determination of Shareholders with respect
to various matters; (viii) declare
-8-
and pay dividends and distributions to Shareholders of each Series (or class)
from the assets of such Series (or classes); (ix) collect all property due to
the Trust, pay all claims, including taxes, against the Trust Property,
prosecute, defend, compromise or abandon any claims relating to the Trust
Property, foreclose any security interest securing any obligations by virtue of
which any property is owed to the Trust, and enter into releases, agreements and
other instruments; (x) incur and pay any expenses which, in the opinion of the
Trustees, are necessary or incidental to carry out any of the purposes of the
Trust, and pay reasonable compensation from the funds of the Trust to themselves
as Trustees; (xi) engage in and prosecute, defend, compromise, abandon, or
adjust, by arbitration or otherwise, any actions, suits, proceedings, disputes,
claims and demands relating to the Trust expenses incurred in connection
therewith, including those of litigation; (xii) indemnify any Person with whom
the Trust has dealings, including the Shareholders, Trustees, officers,
employees, agents, Investment Adviser, or Principal Underwriter(s) of the Trust,
to the extent permitted by law and not inconsistent with any applicable
provisions of the By-Laws as the Trustees shall determine; (xiii) determine and
change the fiscal year of the Trust or any Series and the method by which its
accounts shall be kept; (xiv) adopt a seal for the Trust or any Series; and (xv)
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, transfer or shareholder servicing agent,
Investment Adviser or Principal Underwriter. 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. Unless otherwise
specified or required by law, any action by the Board of Trustees shall be
deemed effective if approved or taken by a majority of the Trustees then in
office.
Without limiting the foregoing, the Trust shall have power and
authority:
(a) To invest and reinvest cash, to hold cash uninvested, and to
subscribe for, invest in, reinvest in, purchase or otherwise acquire, own, hold,
pledge, sell, sell short, assign, transfer, exchange, distribute, write options
on, lend or otherwise deal in or dispose of contracts for the future acquisition
or delivery of securities of every nature and kind, including, without
limitation, all types of bonds, debentures, stocks, negotiable or non-negotiable
instruments, obligations, evidences of indebtedness, certificates of deposit or
indebtedness, commercial paper, repurchase agreements, bankers' acceptances and
other securities and financial instruments of any kind, issued, created,
guaranteed, or sponsored by any and all Persons, including, without limitation,
states, territories, and possessions of the United States and the District of
Columbia and any political subdivision, agency, or instrumentality thereof, any
political subdivision of the U.S. Government or any foreign government, or any
international instrumentality, or by any bank or saving institution, or by any
corporation or organization organized under the laws of the United States or of
any state, territory, or possession thereof, or by any corporation or
organization organized under any foreign law, or in "when issued" contracts for
any such securities, to change the investments of the assets of the Trust; and
to exercise any and all rights, powers, and privileges of ownership or interest
in respect of any and all such investments and financial instruments 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
instruments;
-9-
(b) To sell, exchange, lend, pledge, mortgage, hypothecate,
lease, or write options with respect to or otherwise deal in any property rights
relating to any or all of the assets of the Trust or any Series;
(c) 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;
(d) To exercise powers and rights to subscription or otherwise
which in any manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form, or in its own
name or in the name of a custodian or sub-custodian or a nominee or nominees or
otherwise;
(f) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer of any
security which is 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;
(g) 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;
(h) To compromise, arbitrate or otherwise adjust claims in favor
of or against the Trust or any matter in controversy, including but not limited
to a claim for taxes;
(i) To enter into joint ventures, general or limited partnerships
and any other combinations or associations;
(j) To borrow funds or other property in the name of the Trust
exclusively for Trust purposes;
(k) 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;
(l) To purchase and pay for out of Trust Property such insurance
as the Trustees may deem necessary or appropriate for the conduct of the
business, including, without limitation, insurance policies insuring the assets
of the Trust or payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
-10-
officers, employees, agents, Investment Adviser, Principal Underwriter(s), or
independent contractors of the Trust, individually against all claims and
liabilities of every nature arising by reason of holding Shares, 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 Trustee, officer, employee,
agent, Investment Adviser, 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 liability, subject to such limitations as may be imposed by law;
(m) 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;
(n) To enter into swap agreements;
(o) To enter into futures contracts (including, but not limited
to, interest rate and stock index futures contracts) and options thereon; and
(p) To conduct, operate and carry on any other lawful business
and engage in any other lawful business activity which the Trustees, in their
sole and absolute discretion, consider to be (i) incidental to the business of
the Trust as an investment company, (ii) conducive to or expedient for the
benefit or protection of the Trust or any Series or the Shareholders, or (iii)
calculated in any other manner to promote the interests of the Trust or any
Series or the Shareholders.
The Trust shall not be limited to investing in obligations
maturing before the possible termination of the Trust or one or more of its
Series. The Trust shall not in any way be bound or limited by any present or
future law or custom in regard to investment by fiduciaries. The Trust shall not
be required to obtain any court order to deal with any assets of the Trust or
take any other action hereunder.
Section 4. Payment of Expenses by the Trust.
The Trustees are authorized to pay or cause to be paid out of the
principal or income of the Trust, or partly out of the 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, or in connection with the
management thereof, including, but not limited to, the Trustees' compensation
and such expenses and charges for the services of the Trust's officers,
employees, Investment Adviser, Principal Underwriter(s), auditors, 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.
Section 5. Payment of Expenses by Shareholders.
-11-
The Trustees shall have the power, as frequently as they may
determine, to cause each Shareholder, or each Shareholder of any particular
Series, 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.
Section 6. Ownership of Assets of the Trust.
Title to all of the assets of the Trust shall at all times be
considered as vested in the Trust, 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, on such terms as the Trustees may determine. 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 the resignation, removal or
death of a Trustee he 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.
Section 7. Service Contracts.
(a) Subject to such requirements and restrictions as may be set
forth in the By-Laws, the Trustees may, at any time and from time to time,
contract for investment advisory, management and administrative services for the
Trust or for any Series with any corporation, trust, association or other
organization; and any such contract may contain such other terms as the Trustees
may determine, including without limitation, authority for the Investment
Adviser (or a duly appointed sub-investment adviser) to determine from time to
time without prior consultation with the Trustees 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, or such other activities as may specifically be delegated to such
party.
(b) The Trustees may also, at any time and from time to time,
contract with one or more corporation, trust, association or other organization,
appointing it as a Principal Underwriter for the Shares.
(c) The Trustees are also empowered, at any time and from time to
time, to contract with any corporation, trust, association or other
organization, appointing it the administrator, custodian, transfer agent or
shareholder servicing agent for the Trust or one or more of its Series.
(d) The Trustees are further empowered, at any time and from time
to time, to contract with any entity to provide such other services to the Trust
or any Series (or class), as the Trustees determine to be in the best interests
of the Trust or the Series (or class).
(e) The fact that:
-12-
(i) any of the Shareholders, Trustees, or officers of the Trust
is a shareholder, director, officer, partner, trustee, employee, Investment
Adviser, Principal Underwriter, distributor, or affiliate or agent of or for any
corporation, trust, association, or other organization, or for any parent or
affiliate of any organization with which an advisory, management or
administration contract, or Principal Underwriter's or distributor's contract,
or transfer, shareholder servicing or other type of service 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, management or administration contract or Principal
Underwriter's or distributor's contract, or transfer, shareholder servicing or
other type of service contract may have been or may hereafter be made also has
an advisory, management or administration contract, or principal underwriter's
or distributor's contract, or transfer, shareholder servicing or other service
contract with other organizations, or has other business or interests,
shall not affect the validity of any such contract or disqualify
any Shareholder, Trustee or officer of the Trust from voting upon or executing
the same, or create any liability or accountability to the Trust or its
Shareholders, provided approval of each such contract is made pursuant to the
requirements of the 1940 Act.
ARTICLE V
SHAREHOLDERS' VOTING POWERS
Subject to the provisions of Article III, Section 6(d), the
Shareholders shall have power to vote only (i) for the election or removal of
Trustees as provided in Article IV, Section 1, and (ii) with respect to such
additional matters relating to the Trust as may be required by this Declaration,
the By-Laws, the 1940 Act or any registration of the Trust with the 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, except that (i) Shares held in the
Treasury as of the record date, as determined in accordance with the By-Laws,
shall not be voted, and (ii) when Shares of more than one Series (or class) vote
together on a matter as a single class, each Share (or fraction thereof) shall
be entitled to that number of votes which is equal to the net asset value of
such Share (or fractional Share) determined as of the applicable record date.
There shall be no cumulative voting in the election of Trustees.
Until Shares are issued, the Trustees may exercise all rights of
Shareholders and may take any action required by law, this Declaration or the
By-Laws to be taken by Shareholders.
ARTICLE VI
NET ASSET VALUE, DISTRIBUTIONS, REDEMPTIONS AND REPURCHASES
Section 1. Determination of Net Asset Value, Net Income, Dividends and
Distributions.
-13-
Subject to applicable law and Article III, Section 6 hereof, the
Trustees, in their absolute discretion, may prescribe such bases and times for
valuing the net assets of the Trust and determining the net asset value of
Shares, which net asset value shall be separately determined for each Series
(and class), for determining the net income attributable to the Shares, or for
declaring and paying dividends and other distributions on Shares, as they may
deem necessary or desirable.
Section 2. Redemptions by Shareholders.
The Shares of the Trust are not redeemable by the Shareholders.
Section 3. Redemptions at the Option of the Trust.
The Trust shall have the right at its option and at any time to
redeem Shares from any Shareholder at the net asset value thereof as described
in Section 1 of this Article VI if at such time the Board of Trustees or the
Investment Adviser determine or have reason to believe that, among other things:
(i) ownership of Shares by such Shareholder or other person will cause the Trust
to be in violation of, or subject the Trust or the Investment Adviser to
additional registration or regulation under the securities, commodities, or
other laws of the United States or any other relevant jurisdiction; (ii)
continued ownership of such Shares may be harmful or injurious to the business
or reputation of the Trust or the Investment Adviser, or may subject the Trust
or any Shareholders to an undue risk of adverse tax or other fiscal
consequences; (iii) any representation or warranty made by a Shareholder in
connection with the acquisition of Shares (such as in the investor
certification) was not true when made or has ceased to be true; or (iv) it would
be in the best interests of the Trust, as determined by the Board of Trustees,
for the Trust to cause a mandatory redemption of such Shares.
Section 4. 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.
ARTICLE VII
COMPENSATION AND LIMITATION OF LIABILITY OF TRUSTEES
Section 1. Compensation.
The Trustees as such shall be entitled to reasonable compensation
from the Trust, and they may fix the amount of such compensation. Nothing herein
shall in any way prevent the employment of any Trustee for advisory, management,
legal, accounting, investment banking or other services and payment for the same
by the Trust.
Section 2. Indemnification and Limitation of Liability.
-14-
The Trustees shall not be responsible or liable in any event for
any neglect or wrongdoing of any officer, agent, employee, Investment Adviser or
Principal Underwriter(s) of the Trust, nor shall any Trustee be responsible for
the act or omission of any other Trustee, and the Trust out of its assets shall
indemnify and hold harmless each and every Trustee from and against any and all
claims and demands whatsoever arising out of or related to each Trustee's
performance of his duties as a Trustee of the Trust to the fullest extent
permitted by law; provided that nothing herein contained shall indemnify, hold
harmless or protect any Trustee from or against any liability to the Trust or
any Shareholder to which he would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his 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 capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
Section 3. Trustee's Good Faith Action; Expert Advice; No Bond or Surety.
The exercise by the Trustees of their powers and discretions
hereunder shall be binding upon everyone interested. A Trustee shall be liable
to the Trust and to any Shareholder solely for his own willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee, 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, and shall
be under no liability for any act or omission in accordance with such advice nor
for failing to follow such advice. The Trustees shall not be required to give
any bond as such, nor any surety if a bond is required.
Section 4. Insurance.
The Trustees shall be entitled and empowered to the fullest
extent permitted by law to purchase with Trust assets insurance for liability
and for all expenses reasonably incurred or paid or expected to be paid by a
Trustee or officer in connection with any claim, action, suit or proceeding in
which he becomes involved by virtue of his capacity or former capacity with the
Trust.
ARTICLE VIII
MISCELLANEOUS
Section 1. Liability of Third Persons Dealing with Trustees.
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.
Section 2. Termination of Trust or Series or Class.
-15-
Unless terminated as provided herein, the Trust shall continue
without limitation of time. The Trust may be terminated at any time by vote of
the holders of a majority of the outstanding Shares of each Series entitled to
vote, voting separately by Series, or by the Trustees by written notice to the
Shareholders. Any Series (or class) may be terminated at any time by vote of the
holders of a majority of the outstanding Shares of that Series (or class) or by
the Trustees by written notice to the Shareholders of that Series (or class).
Upon termination of the Trust (or any Series or class, as the
case may be), after paying or otherwise providing for all charges, taxes,
expenses and liabilities held (severally, with respect to each Series or class,
if applicable and as the case may be), whether due or accrued or anticipated as
may be determined by the Trustees, the Trust shall, in accordance with such
procedures as the Trustees consider appropriate, reduce the remaining assets
held (severally, with respect to each Series or class, if applicable and as the
case may be) to distributable form in cash or shares or other securities, or any
combination thereof, and distribute the proceeds held (with respect to each
Series or class, if applicable and as the case may be) to the Shareholders (if
applicable, to Shareholders of that Series (or class), as a Series (or class)),
ratably according to the number of Shares held on the date of termination.
Section 3. Conversion to an Open-End Investment Company.
Notwithstanding any other provisions of this Declaration of Trust
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
three-quarters of the Shares shall be required to approve, adopt or authorize an
amendment to this Declaration of Trust that makes the Shares a "redeemable
security" as that term is defined in the 1940 Act, unless such amendment has
been approved by three-quarters of the Trustees, in which case approval by a
vote of a majority of the Shares outstanding and entitled to 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 of Trust 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.
Section 4. Merger and Consolidation.
The Trustees may cause (i) the Trust or one or more of its Series
to the extent consistent with applicable law to be merged into or consolidated
with another trust or company, (ii) Shares of the Trust or any Series to be
converted into beneficial interests in another statutory trust (or series
thereof) created pursuant to this Section 4 of Article VIII, (iii) the sale of
substantially all of the assets of the Trust or one or more of its Series to
another trust or company in exchange for the assumption of the liabilities of
the Trust or the Series and the issuance of beneficial interests in such trust
or company, or (iv) Shares to be exchanged under or pursuant to any state or
federal statute to the extent permitted by law. Such merger or consolidation,
Share conversion, sale of assets or Share exchange must be authorized by vote of
the holders of a majority of the outstanding Shares (or, if applicable, a
majority of the outstanding shares of the affected Series); provided that in all
respects not governed by applicable law, the Trustees shall have the power to
prescribe the procedures necessary or appropriate to accomplish the transaction
including the power to create one or more separate statutory trusts to which all
or any part of the assets, liabilities, profits or losses of the Trust may be
transferred and to provide for the conversion of Shares of the Trust or any
Series into beneficial interests in such separate statutory trust or trusts (or
series thereof). The Trustees may also cause substantially all of the assets of
any Series (the "Acquired Series") to be sold to another Series if authorized by
vote of the holders of a majority of the outstanding Shares of the Acquired
Series, and to the extent not governed by applicable law, the Trustees shall
have the power to prescribe the procedures necessary or appropriate to
accomplish the
-16-
transaction. Upon consummation of any transaction contemplated by this Section
4, the Trust or applicable Series, as the case may be, shall distribute its
remaining assets to Shareholders and terminate as provided by Section 2 of this
Article VIII.
Section 5. Amendments.
(a) This Declaration may be restated or amended at any time by an
instrument in writing signed by a majority of the Trustees and, if required by
applicable law or this Declaration or the By-Laws, by approval of such amendment
by Shareholders in accordance with Article V hereof and the By-Laws. Any such
restatement or amendment hereto shall be effective immediately upon execution
and approval. The Certificate of Trust of the Trust may be restated or amended
by a similar procedure, and any such restatement or amendment shall be effective
immediately upon filing with the Office of the Secretary of State of the State
of Delaware or upon such future date as may be stated therein.
(b) Nothing contained in this Declaration shall permit the
amendment of this Declaration to impair the exemption from personal liability of
the Shareholders, Trustees, officers, employees and agents of the Trust or to
permit assessments on Shareholders.
Section 6. Filing of Copies; References; Headings.
The original or a copy of this Declaration and of each
restatement and amendment hereto shall be kept at the office of the Trust where
it may be inspected by any Shareholder. Anyone dealing with the Trust may rely
on a certificate by an officer of the Trust as to whether or not any such
restatements or 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
Declaration or of any such restatement or amendment. 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 Declaration.
Whenever the singular number is used herein, the same shall include the plural;
and the neuter, masculine and feminine genders shall include each other, as
applicable. This Declaration may be simultaneously executed in any number of
counterparts each of which shall be deemed an original, and such counterparts
together shall constitute one and the same instrument, which shall be
sufficiently evidenced by any such original counterpart.
Section 7. Applicable Law.
This Declaration is created under and is to be governed by and
construed and administered according to the laws of the State of Delaware and
the Delaware Statutory Trust Act, as amended from time to time (the "Delaware
Act"). The Trust shall be a Delaware
-17-
statutory trust pursuant to the Delaware Act, and without limiting the
provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a statutory trust.
Section 8. Provisions in Conflict with Law or Regulations.
(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 Internal Revenue Code of 1986, as amended, or with other
applicable laws and regulations, the conflicting provision shall be deemed never
to have constituted a part of the Declaration of Trust; provided, however, that
such determination shall not affect any of the remaining provisions of the
Declaration of Trust or render invalid or improper any action taken or omitted
prior to such determination.
(b) If any provision of the Declaration shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of the
Declaration in any jurisdiction.
Section 9. Statutory Trust Only.
It is the intention of the Trustees to create a statutory trust
pursuant to the Delaware Act and thereby to create only the relationship of
trustee and beneficial owners within the meaning of the Delaware Act between the
Trustees and each Shareholder. It is not the intention of the Trustees to create
a general partnership, limited partnership, joint stock association,
corporation, bailment, or any form of legal relationship other than a statutory
trust pursuant to the Delaware Act. 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.
-18-
IN WITNESS WHEREOF, the Trustee named below hereby makes and
enters into this Declaration of Trust as of the 17th day of July, 2009.
/s/ Xxxxxx Xxxxxxxxxx
---------------------
Xxxxxx Xxxxxxxxxx
