HATTERAS 1099 ADVANTAGE FUND AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
TABLE OF
CONTENTS
Page
|
ARTICLE
I
|
NAME
AND DEFINITIONS
|
1
|
|
Section
1.1
|
Name
|
1
|
|
Section
1.2
|
Definitions
|
1
|
|
ARTICLE
II
|
BENEFICIAL
INTEREST
|
3
|
|
Section
2.1
|
Shares
of Beneficial Interest
|
3
|
|
Section
2.2
|
Issuance
of Shares
|
3
|
|
Section
2.3
|
Register
of Shares and Share Certificates
|
3
|
|
Section
2.4
|
Transfer
of Shares
|
4
|
|
Section
2.5
|
Treasury
Shares
|
4
|
|
Section
2.6
|
Establishment
of Series and Classes
|
4
|
|
Section
2.7
|
Investment
in the Trust
|
5
|
|
Section
2.8
|
Assets
and Liabilities Belonging to Series, etc.
|
5
|
|
Section
2.9
|
No
Preemptive Rights
|
6
|
|
Section
2.10
|
Conversion
Rights
|
6
|
|
Section
2.11
|
Legal
Proceedings
|
6
|
|
Section
2.12
|
Status
of Shares
|
7
|
|
ARTICLE
III
|
THE
TRUSTEES
|
7
|
|
Section
3.1
|
Management
of the Trust
|
7
|
|
Section
3.2
|
Term
of Office of Trustees
|
8
|
|
Section
3.3
|
Vacancies
and Appointment of Trustees
|
8
|
|
Section
3.4
|
Temporary
Absence of Trustee
|
9
|
|
Section
3.5
|
Number
of Trustees
|
9
|
|
Section
3.6
|
Effect
of Death, Resignation, Etc. of a Trustee
|
9
|
|
Section
3.7
|
Ownership
of Assets of the Trust
|
9
|
|
Section
3.8
|
Series
Trustees
|
9
|
|
Section
3.9
|
No
Accounting
|
10
|
|
ARTICLE
IV
|
POWERS
OF THE TRUSTEES
|
10
|
|
Section
4.1
|
Powers
|
10
|
|
Section
4.2
|
Issuance
and Repurchase of Shares
|
14
|
|
Section
4.3
|
Trustees
and Officers as Shareholders
|
14
|
|
Section
4.4
|
Action
by the Trustees and Committees
|
14
|
|
Section
4.5
|
Chairman
of the Trustees
|
15
|
|
Section
4.6
|
Principal Transactions |
15
|
|
ARTICLE
V
|
INVESTMENT
ADVISER, INVESTMENT SUB-ADVISER, PRINCIPAL UNDERWRITER, ADMINISTRATOR,
TRANSFER AGENT, CUSTODIAN AND OTHER CONTRACTORS
|
15
|
|
Section
5.1
|
Certain
Contracts
|
15
|
|
ARTICLE
VI
|
SHAREHOLDER
VOTING POWERS AND MEETINGS
|
17
|
|
Section
6.1
|
Voting
|
17
|
|
Section
6.2
|
Meetings
|
18
|
|
Section
6.3
|
Quorum
and Required Vote
|
18
|
|
Section
6.4
|
Action
by Written Consent
|
18
|
TABLE OF
CONTENTS
Page
|
ARTICLE
VII
|
DISTRIBUTIONS
AND REDEMPTIONS
|
19
|
|
Section
7.1
|
Distributions
|
19
|
|
Section
7.2
|
Transfer
of Shares
|
19
|
|
Section
7.3
|
Repurchases
and Redemptions
|
20
|
|
Section
7.4
|
Net
Asset Value
|
22
|
|
ARTICLE
VIII
|
LIMITATION
OF LIABILITY AND INDEMNIFICATION
|
23
|
|
Section
8.1
|
Limitation of Liability |
23
|
|
Section
8.2
|
Indemnification
|
23
|
|
Section
8.3
|
Indemnification Determinations |
24
|
|
Section
8.4
|
Indemnification
Not Exclusive
|
24
|
|
Section
8.5
|
Shareholders
|
24
|
|
ARTICLE
IX
|
MISCELLANEOUS
|
25
|
|
Section
9.1
|
Trust
Not a Partnership
|
25
|
|
Section
9.2
|
Trustees’
Good Faith Action, Expert Advice, No Bond or Surety
|
25
|
|
Section
9.3
|
Establishment
of Record Dates
|
25
|
|
Section
9.4
|
Dissolution
and Termination of Trust or Series
|
26
|
|
Section
9.5
|
Merger,
Consolidation, Incorporation
|
27
|
|
Section
9.6
|
Filing
of Copies, References, Headings
|
27
|
|
Section
9.7
|
Applicable
Law
|
27
|
|
Section
9.8
|
Amendments
|
28
|
|
Section
9.9
|
Fiscal
Year
|
28
|
|
Section
9.10
|
Provisions
in Conflict with Law
|
28
|
|
Section
9.11
|
Allocation
of Certain Expenses
|
29
|
-ii-
AMENDED
AND RESTATED AGREEMENT AND DECLARATION OF TRUST of Hatteras 1099
Advantage Fund, a Delaware statutory trust, made as of June 9, 2009 by the
undersigned Trustee.
WHEREAS,
the undersigned Trustee desires to establish a trust for the investment and
reinvestment of funds contributed thereto;
WHEREAS,
the Trustee desires that the beneficial interest in the trust assets be divided
into transferable shares of beneficial interest, as hereinafter
provided;
WHEREAS,
the Trustee declares that all money and property contributed to the trust
established hereunder shall be held and managed in trust for the benefit of the
holders of the shares of beneficial interest issued hereunder and subject to the
provisions hereof;
WHEREAS,
the Trustee executed an Agreement and Declaration of Trust effective as of March
10, 2009 (the “Original Declaration of Trust”);
WHEREAS,
the Trustee desires to amend and restate the Original Declaration of Trust in
its entirety;
NOW,
THEREFORE, in consideration of the foregoing, the undersigned Trustee hereby
declares that all money and property contributed to the trust hereunder shall be
held and managed in trust under this Amended and Restated Agreement and
Declaration of Trust (“Trust Instrument”) as herein set forth
below.
ARTICLE
I
NAME AND
DEFINITIONS
Section
l.l Name. The
name of the trust established hereby is “Hatteras 1099
Advantage Fund.”
Section
1.2 Definitions. Wherever used
herein, unless otherwise required by the context or specifically
provided:
(a) “Act”
means the Delaware Statutory Trust Act, 12 Del. C. §§ 3801 et seq., as from time
to time amended;
(b) “By-laws”
means the By-laws referred to in Section 4.1(e) hereof, as from time to time
amended;
(c) The
terms “Affiliated Person,” “Assignment,” “Commission,” “Interested Person” and
“Principal Underwriter” shall have the meanings given them in the 1940 Act.
“Majority Shareholder Vote” shall have the same meaning as the term “vote of a
majority of the outstanding voting securities” is given in the 1940
Act;
(d) “Class”
means any division of Shares within a Series, which Class is or has been
established in accordance with the provisions of Article II.
(e) “Net
Asset Value” means the net asset value of each Series or Class of the Trust
determined in the manner provided in Section 7.4 hereof;
(f) “Outstanding
Shares” means those Shares recorded from time to time in the books of the Trust
or its transfer agent as then issued and outstanding, but shall not include
Shares which have been redeemed or repurchased by the Trust and which are at the
time held in the treasury of the Trust;
(g) “Series”
means a series of Shares of the Trust established in accordance with the
provisions of Section 2.6 hereof;
(h)
“Shareholder” means a record owner of Outstanding Shares of the
Trust;
(i)
“Shares” means the equal proportionate transferable units of beneficial interest
into which the beneficial interest of each Series of the Trust or Class thereof
shall be divided and may include fractions of Shares as well as whole
Shares;
(j)
“Trust” refers to Hatteras 1099 Advantage Fund and reference to the Trust,
when applicable to one or more Series of the Trust, shall refer to any such
Series;
(k)
“Trustee” or “Trustees” means the person or persons who has or have signed this
Trust Instrument, so long as such person or persons shall continue in office in
accordance with the terms hereof, and all other persons who may from time to
time be duly qualified and serving as Trustees in accordance with the provisions
of Article III hereof, and reference herein to a Trustee or to the Trustees
shall refer to the individual Trustees in their capacity as Trustees
hereunder;
(1)
“Trust Property” means any and all property, real or personal, tangible or
intangible, which is owned or held by or for the account of one or more of the
Trust or any Series, or the Trustees on behalf of the Trust or any
Series.
(m)
“Valuation Date” means the date on which the value of Shares being repurchased
will be determined by the Trustees in their sole discretion.
(n) The
“1940 Act” refers to the Investment Company Act of 1940 and the Rules and
Regulations thereunder, all as may be amended from time to time.
-2-
ARTICLE
II
BENEFICIAL
INTEREST
Section
2.1 Shares of Beneficial
Interest. The beneficial interest in the Trust shall be divided into such
transferable Shares of one or more separate and distinct Series and Classes
within a Series as the Trustees shall from time to time create and establish.
The number of Shares of each Series and Class authorized hereunder is unlimited.
Each Share shall have a par value of $0.001, unless otherwise determined by the
Trustees in connection with the creation and establishment of a Series or Class.
All Shares issued hereunder, including without limitation, Class Shares issued
in connection with a dividend in Shares or a split or reverse split of Shares,
shall be fully paid and nonassessable.
Section
2.2 Issuance of Shares. The
Trustees in their discretion may, from time to time, without vote of the
Shareholders, issue Shares of each Series and Class to such party or parties and
for such amount and type of consideration (or for no consideration if pursuant
to a Share dividend or split-up), subject to applicable law, including cash or
securities (including Shares of a different Series or Class), at such time or
times and on such terms as the Trustees may deem appropriate, and may in such
manner acquire other assets (including the acquisitions of assets subject to,
and in connection with, the assumption of liabilities) and businesses. In
connection with any issuance of Shares, the Trustees may issue fractional Shares
and Shares held in the treasury. The Trustees may from time to time divide or
combine the Shares into a greater or lesser number without thereby changing the
proportionate beneficial interests in the Trust. The Trustees may classify or
reclassify any unissued Shares or any Shares previously issued and reacquired of
any Series or Class into one or more Series or Classes that may be established
and designated from time to time.
Any
Trustee, officer or other agent of the Trust, and any organization in which any
such person is interested, may acquire, own, hold and dispose of Shares of any
Series or Class of the Trust to the same extent as if such person were not a
Trustee, officer or other agent of the Trust; and the Trust may issue and sell
or cause to be issued and sold and may purchase Shares of any Series or Class
from any such person or any such organization subject only to the general
limitations, restrictions or other provisions applicable to the sale or purchase
of Shares of such Series or Class generally.
Section
2.3 Register of Shares and Share
Certificates. A register shall be kept at the principal office of the
Trust or an office of the Trust’s transfer agent which shall contain the names
and addresses of the Shareholders of each Series and Class, the number of Shares
of that Series and Class thereof held by them respectively and a record of all
transfers thereof. As to Shares for which no certificate has been issued, such
register shall be conclusive as to who are the holders of the Shares and who
shall be entitled to receive dividends or other distributions or otherwise to
exercise or enjoy the rights of Shareholders. No Shareholder shall be entitled
to receive payment of any dividend or other distribution, nor to have notice
given to him as herein or in the By-laws provided, until he has given his
address to the transfer agent or such other officer or agent of the Trust as
shall keep the said register for entry thereon. The Trustees, in
-3-
their
discretion, may authorize the issuance of share certificates and promulgate
appropriate rules and regulations as to their use. In the event that one or more
certificates are issued, whether in the name of a Shareholder or a nominee, such
certificate or certificates shall constitute evidence of ownership of Shares for
all purposes, including transfer, assignment or sale of such Shares, subject to
such limitations as the Trustees may, in their discretion,
prescribe.
Section
2.4 Transfer of Shares. Except
as otherwise provided by the Trustees, Shares shall be transferable on the
records of the Trust only in accordance with Section 7.2 herein and only by the
record holder thereof or by his agent thereunto duly authorized in writing, upon
delivery to the Trustees or the Trust’s transfer agent of a duly executed
instrument of transfer, together with a Share certificate, if one is
outstanding, and such evidence of the genuineness of each such execution and
authorization and of such other matters as may be required by the Trustees. Upon
such delivery the transfer shall be recorded on the register of the Trust. Until
such record is made, the Shareholder of record shall be deemed to be the holder
of such Shares for all purposes hereunder and neither the Trustees nor the
Trust, nor any transfer agent or registrar nor any officer, employee or agent of
the Trust shall be affected by any notice of the proposed transfer.
Section
2.5 Treasury Shares. Shares held
in the treasury shall, until reissued pursuant to Section 2.2 hereof, not confer
any voting rights on the Trustees, nor shall such Shares be entitled to any
dividends or other distributions declared with respect to the
Shares.
Section
2.6 Establishment of Series and
Classes. The Trust shall consist of one or more Series and Classes and
separate and distinct records shall be maintained by the Trust for each Series
and Class. The Trustees shall have full power and authority, in their sole
discretion, and without obtaining any prior authorization or vote of the
Shareholders of any Series or Class of the Trust, to establish and designate and
to change in any manner any initial or additional Series or Classes and to fix
such preferences, voting powers, rights and privileges of such Series or Classes
as the Trustees may from time to time determine, to divide or combine the Shares
or any Series or Classes into a greater or lesser number, to classify or
reclassify any issued Shares or any Series or Classes into one or more Series or
Classes of Shares, and to take such other action with respect to the Shares as
the Trustees may deem desirable. Unless another time is specified by the
Trustees, the establishment and designation of any Series or Class shall be
effective upon the adoption of a resolution by the Trustees setting forth such
establishment and designation and the preferences, powers, rights and privileges
of the Shares of such Series or Class, whether directly in such resolution or by
reference to, or approval of, another document that sets forth such relative
rights and preferences of such Series (or Class) including, without limitation,
any registration statement of the Trust, or as otherwise provided in such
resolution. The Trust may issue any number of Shares of each Series or Class and
need not issue certificates for any Shares.
All
references to Shares in this Trust Instrument shall be deemed to be Shares of
any or all Series or Classes as the context may require. All provisions herein
relating to the Trust shall apply equally to each Series and Class of the Trust
except as the context otherwise requires.
All
Shares of each Class of a particular Series shall represent an equal
proportionate interest in the assets belonging to that Series (subject to the
liabilities belonging to the Series,
-4-
and, in
the case of each Class, to the liabilities belonging to that Class), and each
Share of any Class of a particular Series shall be equal to each other Share of
that Class; but the provisions of this sentence shall not restrict any
distinctions permissible under this Section 2.6.
Section
2.7 Investment in the Trust. The
Trustees shall accept investments in any Series of the Trust or Class, if the
Series has been divided into Classes, from such persons and on such terms as
they may from time to time authorize. At the Trustees’ discretion, such
investments, subject to applicable law, may be in the form of cash or securities
in which the affected Series is authorized to invest, valued as provided in
Section 7.4 hereof. Unless the Trustees otherwise determine, investments in a
Series shall be credited to each Shareholder’s account in the form of full
Shares at the Net Asset Value per Share next determined after the investment is
received. Without limiting the generality of the foregoing, the Trustees may, in
their sole discretion, (a) fix the Net Asset Value per Share of the initial
capital contribution, (b) impose sales or other charges upon investments in the
Trust or (c) issue fractional Shares.
Section
2.8 Assets and Liabilities Belonging to
Series, etc. All consideration received by the Trust for the issue or
sale of Shares of a particular Series, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall be held
and accounted for separately from the other assets of the Trust and of every
other Series and may be referred to herein as “assets belonging to” that Series.
The assets belonging to a particular Series shall belong to that Series for all
purposes, and to no other Series, subject only to the rights of creditors of
that Series. In addition, any assets, income, earnings, profits or funds, or
payments and proceeds with respect thereto, which are not readily identifiable
as belonging to any particular Series shall be allocated by the Trustees between
and among one or more of the Series in such manner as the Trustees, in their
sole discretion, deem fair and equitable. If there are classes of Shares within
a Series, the assets belonging to the Series shall be further allocated to each
Class in the proportion that the “assets belonging to” the Class (calculated in
the same manner as with determination of assets “belonging to” the Series) bears
to the assets of all Classes within the Series. Each such allocation shall be
conclusive and binding upon the Shareholders of all Series and Classes for all
purposes, and such assets, income, earnings, profits or funds, or payments and
proceeds with respect thereto shall be assets belonging to that Series or Class,
as the case may be. The assets belonging to a particular Series and Class shall
be so recorded upon the books of the Trust, and shall be held by the Trustees in
trust for the benefit of the holders of Shares of that Series or Class, as the
case may be.
The
assets belonging to each Series shall be charged with the liabilities of that
Series and all expenses, costs, charges and reserves attributable to that
Series. Any general liabilities, expenses, costs, charges or reserves of the
Trust which are not readily identifiable as belonging to any particular Series
shall be allocated and charged by the Trustees between or among any one or more
of the Series in such manner as the Trustees in their sole discretion deem fair
and equitable. Each such allocation shall be conclusive and binding upon the
Shareholders of all Series for all purposes. The liabilities, expenses, costs,
charges and reserves allocated and so charged to a Series are herein referred to
as “liabilities belonging to” that Series. Except as provided in
the
-5-
next
sentence or otherwise required or permitted by applicable law or any rule or
order of the Commission, the “liabilities belonging to” such Series shall be
allocated to each Class of a Series in the proportion that the assets belonging
to such Class bear to the assets belonging to all Classes in the Series. To the
extent permitted by rule or order of the Commission, the Trustees may allocate
all or a portion of any liabilities belonging to a Series to a particular Class
or Classes (collectively, “Class Expenses”) as the Trustees may from time to
time determine is appropriate. In addition, all liabilities, expenses, costs,
charges and reserves belonging to a Class shall be allocated to such
Class.
Without
limitation of the foregoing provisions of this Section 2.8, but subject to the
right of the Trustees in their discretion to allocate general liabilities,
expenses, costs, charges or reserves as herein provided, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to a particular Series shall be enforceable against the assets belonging
to such Series only, and not against the assets of the Trust generally or any
other Series. Notice of this limitation on inter-Series liabilities shall be set
forth in the certificate of trust of the Trust (whether originally or by
amendment) as filed or to be filed in the Office of the Secretary of State of
the State of Delaware pursuant to the Act, and upon the giving of such notice in
the certificate of trust, the statutory provisions of Section 3804 of the Act
relating to limitations on inter-Series liabilities (and the statutory effect
under Section 3804 of setting forth such notice in the certificate of trust)
shall become applicable to the Trust and each Series. Any person extending
credit to, contracting with or having any claim against any Series may satisfy
or enforce any debt, liability, obligation or expense incurred, contracted for
or otherwise existing with respect to that Series from the assets of that Series
only. No Shareholder or former Shareholder of any Series shall have a claim on
or any right to any assets allocated or belonging to any other
Series.
Similarly,
the debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to a particular Class shall be enforceable
against the assets belonging to such Class only, and not against the assets of
the Series or the Trust generally or any other Class.
Section
2.9 No Preemptive
Rights. Shareholders shall have no preemptive or other similar rights to
subscribe to any additional Shares or other securities issued by the Trust or
the Trustees, whether of the same or another Series or Class.
Section
2.10 Conversion Rights.
The Trustees shall have the authority to provide from time to time that the
holders of Shares of any Series or Class shall have the right to convert or
exchange said Shares for or into Shares of one or more other Series or Classes
in accordance with such requirements and procedures as may be established from
time to time by the Trustees.
Section
2.11 Legal Proceedings. No
person, other than a Trustee, who is not a Shareholder of a particular Series or
Class shall be entitled to bring any derivative action, suit or other proceeding
on behalf of or with respect to such Series or Class. No Shareholder of a Series
or a Class may maintain a derivative action with respect to such Series or Class
unless holders of a least ten percent (10%) of the outstanding Shares of such
Series or Class join in the bringing of
-6-
such
action. Except as otherwise provided in Section 3816 of the Act and the
foregoing provisions of this Section 2.11, all matters relating to the bringing
of derivative actions in the right of the Trust shall be governed by the General
Corporation Law of the State of Delaware relating to derivative actions, and
judicial interpretations thereunder, as if the Trust were a Delaware corporation
and the Shareholders were shareholders of a Delaware corporation.
In
addition to the requirements set forth in Section 3816 of the Act, a Shareholder
may bring a derivative action on behalf of the Trust with respect to a Series or
Class only if the following conditions are met: (a) the Shareholder or
Shareholders must make a pre-suit demand upon the Trustees to bring the subject
action unless an effort to cause the Trustees to bring such an action is not
likely to succeed; and a demand on the Trustees shall only be deemed not likely
to succeed and therefore excused if a majority of the Trustees, or a majority of
any committee established to consider the merits of such action, has a personal
financial interest in the transaction at issue, and a Trustee shall not be
deemed interested in a transaction or otherwise disqualified from ruling on the
merits of a Shareholder demand by virtue of the fact that such Trustee receives
remuneration for his service as a Trustee of the Trust or as a trustee or
director of one or more investment companies that are under common management
with or otherwise affiliated with the Trust; and (b) unless a demand is not
required under clause (a) of this paragraph, the Trustees must be afforded a
reasonable amount of time to consider such shareholder request and to
investigate the basis of such claim; and the Trustees shall be entitled to
retain counsel or other advisers in considering the merits of the request and
shall require an undertaking by the Shareholders making such request to
reimburse the Trust for the expense of any such advisers in the event that the
Trustees determine not to bring such action. For purposes of this Section 2.11,
the Trustees may designate a committee of one Trustee to consider a Shareholder
demand if necessary to create a committee with a majority of Trustees who do not
have a personal financial interest in the transaction at issue.
Section
2.12 Status of Shares.
Shares shall be deemed to be personal property giving only the rights provided
in this instrument. Every Shareholder by virtue of having become a Shareholder
shall be held to have expressly assented and agreed to the terms hereof. The
death of a Shareholder during the continuance of the Trust shall not operate to
terminate the Trust nor entitle the representative of any deceased Shareholder
to an accounting or to take any action in court or elsewhere against the Trust
or the Trustees, but only to the rights of said decedent under this Trust.
Ownership of Shares shall not entitle the Shareholder to any title in or to the
whole or any part of the Trust property or right to call for a partition or
division of the same or for an accounting, nor shall the ownership of Shares
constitute the Shareholders partners.
ARTICLE
III
THE
TRUSTEES
Section
3.1 Management of the
Trust. The Trustees shall have exclusive and absolute control over the
Trust Property and over the business of the Trust to the same extent as if the
Trustees were the sole owners of the Trust Property and business in their own
right, but with
-7-
such
powers of delegation as may be permitted by this Trust Instrument. The Trustees
shall have power to conduct the business of the Trust and carry on its
operations in any and all of its branches and maintain offices both within and
without the State of Delaware, in any and all states of the United States of
America, in the District of Columbia, in any and all commonwealths, territories,
dependencies, colonies, or possessions of the United States of America, and in
any foreign jurisdiction and to do all such other things and execute all such
instruments as they deem necessary, proper or desirable in order to promote the
interests of the Trust although such things are not herein specifically
mentioned. Any determination as to what is in the interests of the Trust made by
the Trustees in good faith shall be conclusive. In construing the provisions of
this Trust Instrument, the presumption shall be in favor of a grant of power to
the Trustees.
The
enumeration of any specific power in this Trust Instrument shall not be
construed as limiting the aforesaid power. The powers of the Trustees may be
exercised without order of or resort to any court.
Except
for the Trustees named herein or appointed pursuant to Section 3.8, or Trustees
appointed to fill vacancies pursuant to Section 3.3 hereof, the Trustees shall
be elected by the Shareholders owning of record a plurality of the Shares voting
at a meeting of Shareholders. The initial Trustee of the Trust shall be Xxxxx X.
Xxxxxxx.
Section
3.2 Term of Office of
Trustees. Each Trustee shall hold office during the existence of this
Trust, and until its termination as herein provided; except: (a) that any
Trustee may resign his trust by written instrument signed by him and delivered
to the Chairman, President, Secretary, or other Trustee of the Trust, which
shall take effect upon such delivery or upon such later date as is specified
therein; (b) that any Trustee may be removed, with or without cause, at any time
by written instrument, signed by a majority of the Trustees prior to such
removal, specifying the date when such removal shall become effective; (c) that
any Trustee who requests in writing to be retired or who has died, become
physically or mentally incapacitated by reason of disease or otherwise, or is
otherwise unable to serve, may be retired by written instrument signed by a
majority of the other Trustees, specifying the date of his retirement; and (d)
that a Trustee may be removed, with or without cause, at any meeting of the
Shareholders of the Trust by a vote of Shareholders owning at least two-thirds
of the outstanding Shares of all Series.
Section
3.3 Vacancies and
Appointment of Trustees. In case of the declination to serve, death,
resignation, retirement, removal, physical or mental incapacity by reason of
disease or otherwise of a Trustee, or a Trustee is otherwise unable to serve, or
an increase in the number of Trustees, a vacancy shall occur. Whenever a vacancy
in the Board of Trustees shall occur, until such vacancy is filled, the other
Trustees shall have all the powers hereunder and the certificate of the other
Trustees of such vacancy shall be conclusive. In the case of an existing
vacancy, the remaining Trustee or Trustees shall fill such vacancy by appointing
such other person as such Trustee or Trustees in their discretion shall see fit
consistent with the limitations under the 1940 Act, unless such Trustee or
Trustees determine, in accordance with Section 3.5, to decrease the size of the
Board to the number of remaining Trustees.
-8-
An
appointment of a Trustee may be made by the Trustees then in office in
anticipation of a vacancy to occur by reason of retirement, resignation or
increase in number of Trustees effective at a later date, provided that said
appointment shall become effective only at or after the effective date of said
retirement, resignation or increase in number of Trustees.
An
appointment of a Trustee shall be effective upon the acceptance of the person so
appointed to serve as Trustee, except that any such appointment in anticipation
of a vacancy shall become effective at or after the date such vacancy
occurs.
Section
3.4 Temporary Absence
of Trustee. Any Trustee may, by power of attorney, delegate his power for
a period not exceeding six months at any one time to any other Trustee or
Trustees, provided that in no case shall less than two Trustees personally
exercise the other powers hereunder except as herein otherwise expressly
provided or unless there is only one or two Trustees.
Section
3.5 Number of
Trustees. The number of Trustees shall be one, or such other number as
shall be fixed from time to time by the Trustees.
Section
3.6 Effect of Death,
Resignation, Etc. of a Trustee. The declination to serve, death,
resignation, retirement, removal, incapacity, or inability of the Trustees, or
any one of them, shall not operate to terminate the Trust or to revoke any
existing agency created pursuant to the terms of this Trust
Instrument.
Section
3.7 Ownership of
Assets of the Trust. Legal title in and beneficial ownership of all of
the assets of the Trust shall at all times be considered as vested in the Trust,
except that the Trustees may cause legal title in and beneficial ownership of
any Trust Property to be held by, or in the name of one or more of the Trustees
acting for and on behalf of the Trust, or in the name of any person as nominee
acting for and on behalf of the Trust. No Shareholder shall be deemed to have a
severable ownership interest in any individual asset of the Trust or of any
Series or Class, or any right of partition or possession thereof, but each
Shareholder shall have, except as otherwise provided for herein, a proportionate
undivided beneficial interest in each Series or Class the Shares of which are
owned by such Shareholders. The Shares shall be personal property giving only
the rights specifically set forth in this Trust Instrument. The Trust, or at the
determination of the Trustees, one or more of the Trustees or a nominee acting
for and on behalf of the Trust, shall be deemed to hold legal title and
beneficial ownership of any income earned on securities of the Trust issued by
any business entities formed, organized, or existing under the laws of any
jurisdiction, including the laws of any foreign country.
Section
3.8 Series
Trustees. In connection with the establishment of one or more Series or
Classes, the Trustees establishing such Series or Class may appoint, to the
extent permitted by the 1940 Act, separate Trustees with respect to such Series
or Classes (the “Series Trustees”). Series Trustees may, but are not required
to, serve as Trustees of the Trust of any other Series or Class of the Trust. To
the extent provided by the Trustees in the appointment of Series Trustees, the
Series Trustees may have, to the exclusion of any other Trustee of the Trust,
all the powers and authorities of Trustees hereunder with respect to such Series
or Class, but may have no power or authority with respect to any other Series or
Class. Any provision of this Trust
-9-
Instrument
relating to election of Trustees by Shareholders only shall entitle the
Shareholders of a Series or Class for which Series Trustees have been appointed
to vote with respect to the election of such Series Trustees and the
Shareholders of any other Series or Class shall not be entitled to participate
in such vote. In the event that Series Trustees are appointed, the Trustees
initially appointing such Series Trustees shall, without the approval of any
Outstanding Shares, amend either this Trust Instrument or the By-laws to provide
for the respective responsibilities of the Trustees and the Series Trustees in
circumstances where an action of the Trustees or Series Trustees affects all
Series of the Trust or two or more Series represented by different
Trustees.
Section
3.9 No
Accounting. Except to the extent required by the 1940 Act or, if
determined to be necessary or appropriate by the other Trustees under
circumstances which would justify his or her removal for cause, no person
ceasing to be a Trustee for reasons including, but not limited to, death,
resignation, retirement, removal or incapacity (nor the estate of any such
person) shall be required to make an accounting to the Shareholders or remaining
Trustees upon such cessation.
ARTICLE
IV
POWERS OF THE
TRUSTEES
Section
4.1 Powers. The
Trustees in all instances shall act as principals, and are and shall be free
from the control of the Shareholders. The Trustees shall have full power and
authority to do any and all acts and to make and execute any and all contracts
and instruments that they may consider necessary or appropriate in connection
with the management of the Trust. The Trustees shall have full authority and
power to make any and all investments which they, in their sole discretion,
shall deem proper to accomplish the purpose of this Trust. Subject to any
applicable limitation in this Trust Instrument, the Trustees shall have power
and authority:
(a) To
invest and reinvest cash and other property, and to hold cash or other property
uninvested, and to sell, exchange, lend, pledge, mortgage, hypothecate, write
options on and lease any or all of the assets of the Trust;
(b) To
operate as and carry on the business of an investment company, and exercise all
the powers necessary and appropriate to the conduct of such operators, including
the power to invest all or any part of its assets in the securities of another
investment company;
(c) To
borrow money and in this connection issue notes or other evidence of
indebtedness; to secure borrowings by mortgaging, pledging or otherwise
subjecting as security the Trust Property; to endorse, guarantee, or undertake
the performance of an obligation, liability or engagement of any person and to
lend Trust Property;
(d) To
provide for the distribution of interests of the Trust either through a
Principal Underwriter in the manner hereinafter provided for or by the Trust
itself, or both, or otherwise pursuant to a plan of distribution of any
kind;
-10-
(e) To
adopt By-laws not inconsistent with this Trust Instrument providing for the
conduct of the business of the Trust and to amend and repeal them to the extent
that they do not reserve that right to the Shareholders, which By-laws shall be
deemed a part of this Trust Instrument and are incorporated herein by
reference;
(f) To
elect and remove such officers and appoint and terminate such agents and
contractors as they consider appropriate, any of whom may be a Trustee, and may
provide for the compensation of all of the foregoing;
(g) To
employ one or more banks, trust companies or companies that are members of a
national securities exchange or such other entities as custodians of any assets
of the Trust, subject to the 1940 Act and to any conditions set forth in this
Trust Instrument;
(h) To
retain one or more transfer agents and shareholder servicing agents, or
both;
(i) To
set record dates in the manner provided herein or in the By-laws;
(j) To
delegate such authority (which delegation may include the power to subdelegate)
as they consider desirable to any officers of the Trust and to any investment
adviser, manager, administrator, custodian, underwriter or other agent or
independent contractor;
(k) To
join with other holders of any securities or debt instruments in acting through
a committee, depository, voting trustee or otherwise, and in that connection to
deposit any security or debt instrument with, or transfer any security or debt
instrument to, any such committee, depository or trustee, and to delegate to
them such power and authority with relation to any security or debt instrument
(whether or not so deposited or transferred) as the Trustees shall deem proper
and to agree to pay, and to pay, such portion of the expenses and compensation
of such committee, depository or trustee as the Trustees shall deem
proper;
(1) To
enter into joint ventures, general or limited partnerships and any other
combinations or associations;
(m) To
pay pensions for faithful service, as deemed appropriate by the Trustees, and to
adopt, establish and carry out pension, profit-sharing, share bonus, share
purchase, savings, thrift and other retirement, incentive and benefit plans,
trusts and provisions, including the purchasing of life insurance and annuity
contracts as a means of providing such retirement and other benefits, for any or
all of the Trustees, officers, employees and agents of the Trust;
(n) To
the extent permitted by law, indemnify any person with whom the Trust or any
Series or Class has dealings;
(o) To
engage in and to prosecute, defend, compromise, abandon, or adjust by
arbitration, or otherwise, any actions, suits, proceedings, disputes, claims and
demands relating to the Trust, and out of the assets of the Trust or any Series
or Class thereof to pay or to satisfy any debts, claims or expenses incurred in
connection therewith, including those of litigation, and such
-11-
power
shall include without limitation the power of the Trustees or any appropriate
committee thereof, in the exercise of their or its good faith business judgment,
to dismiss any action, suit, proceeding, dispute, claim or demand, derivative or
otherwise, brought by any person, including a Shareholder in its own name or the
name of the Trust, whether or not the Trust or any of the Trustees may be named
individually therein or the subject matter arises by reason of business for or
on behalf of the Trust;
(p) To
purchase and pay for entirely out of Trust Property such insurance as they may
deem necessary or appropriate for the conduct of the business of the Trust,
including, without limitation, insurance policies insuring the Trust Property
and payment of distributions and principal on its investments, and insurance
policies insuring the Shareholders, Trustees, officers, representatives,
employees, agents, investment advisers, managers, administrators, custodians,
underwriters, or independent contractors of the Trust individually against all
claims and liabilities of every nature arising by reason of holding, being or
having held any such office or position, or by reason of any action alleged to
have been taken or omitted by any such person in such capacity, including any
action taken or omitted that may be determined to constitute negligence, whether
or not the Trust would have the power to indemnify such person against such
liability;
(q) To
sell, exchange, lend, pledge, mortgage, hypothecate, write options on and lease
any or all of the assets of the Trust, subject to the provisions of Section
9.4(b) hereof;
(r) To
vote or give assent, or exercise any rights of ownership, with respect to stock
or other securities, debt instruments or property; and to execute and deliver
powers of attorney to such person or persons as the Trustees shall deem proper,
granting to such person or persons such power and discretion with relation to
securities, debt instruments or property as the Trustees shall deem
proper;
(s) To
exercise powers and rights of subscription or otherwise which in any manner
arise out of ownership of securities or debt instruments;
(t) To
hold any security or property in a form not indicating any trust, whether in
bearer, book entry, unregistered or other negotiable form; or either in the name
of the Trustees or of the Trust or in the name of a custodian, subcustodian or
other depository or a nominee or nominees or otherwise;
(u) To
establish separate and distinct Series with separately defined investment
objectives and policies and distinct investment purposes in accordance with the
provisions of Article II hereof and to establish Classes thereof having relative
rights, powers and duties as they may provide consistent with applicable
law;
(v) To
consent to or participate in any plan for the reorganization, consolidation or
merger of any corporation, issuer or concern, any security or debt instrument of
which is held in the Trust; to consent to any contract, lease, mortgage,
purchase or sale of property by such corporation, issuer or concern, and to pay
calls or subscriptions with respect to any security or debt instrument held in
the Trust;
-12-
(w) To
litigate, compromise, arbitrate, or otherwise adjust claims in favor of or
against the Trust or any matter in controversy including, but not limited to,
claims for taxes;
(x) To
make distributions of income and of capital gains to Shareholders in the manner
herein provided;
(y) To
establish, from time to time, a minimum investment for Shareholders in the Trust
or in one or more Series or Classes, and to require the repurchase of the Shares
of any Shareholders whose investment is less than such minimum upon giving
notice to such Shareholder;
(z) To
cause each Shareholder, or each Shareholder of any particular Series of Class,
to pay directly, in advance or arrears, for charges of the Trust’s custodian or
transfer, shareholder servicing or similar agent, an amount fixed from time to
time by the Trustees, by setting off such charges due from such Shareholder from
declared but unpaid dividends owed such Shareholder and/or by reducing the
number of Shares in the account of such Shareholder by that number of full
and/or fractional Shares which represents the outstanding amount of such charges
due from such Shareholder;
(aa) To
establish one or more committees comprised of one or more of the Trustees, and
to delegate any of the powers of the Trustees to said committees;
(bb) To
interpret the investment policies, practices or limitations of any Series or
Class;
(cc) To
establish a registered office and have a registered agent in the State of
Delaware;
(dd) To
compensate or provide for the compensation of the Trustees, officers, advisers,
administrators, custodians, other agents, consultants, contractors and employees
of the Trust or the Trustees on such terms as they deem
appropriate;
(ee) To
invest part or all of the Trust Property (or part or all of the assets of any
Series), or to dispose of part or all of the Trust Property (or part or all of
the assets of any Series) and invest the proceeds of such disposition, in
interests issued by one or more other investment companies or pooled portfolios
(including investment by means of transfer of part or all of the Trust Property
in exchange for an interest or interests in such one or more investment
companies or pooled portfolios) all without any requirement of approval by
Shareholders. Any such other investment company or pooled portfolio may (but
need not) be a trust (formed under the laws of any state or jurisdiction) which
is classified as a partnership for federal income tax purposes; and
(ff) In
general, to carry on any other business in connection with or incidental to any
of the foregoing powers, to do everything necessary, suitable or proper for the
accomplishment of any purpose or the attainment of any object or the furtherance
of any power herein set forth, either alone or in association with others, and
to do every other act or thing
-13-
incidental
or appurtenant to or growing out of or connected with the aforesaid business or
purposes, objects or powers.
The
foregoing clauses shall be construed both as objects and powers, and the
foregoing enumeration of specific powers shall not be held to limit or restrict
in any manner the general powers of the Trustees. Any action by one or more of
the Trustees in their capacity as such hereunder shall be deemed an action on
behalf of the Trust or the applicable Series or Class, and not an action in an
individual capacity.
No one
dealing with the Trustees shall be under any obligation to make any inquiry
concerning the authority of the Trustees, or to see to the application of any
payments made or property transferred to the Trustees or upon their
order.
Section
4.2 Issuance and
Repurchase of Shares. The Trustees shall have the power to issue, sell,
repurchase, redeem, retire, cancel, acquire, hold, resell, reissue, dispose of,
exchange, and otherwise deal in Shares and, subject to the provisions set forth
in Article II and Article VII, to apply to any such repurchase, retirement,
cancellation or acquisition of Shares any funds or property of the Trust, or the
particular Series or Class of the Trust, with respect to which such Shares are
issued.
Section
4.3 Trustees and
Officers as Shareholders. Any Trustee, officer or other agent of the
Trust may acquire, own and dispose of Shares to the same extent as if such
person were not a Trustee, officer or agent; and the Trustees may issue and sell
or cause to be issued and sold Shares to and buy such Shares from any such
person or any firm or company in which such person invested, subject to the
general limitations herein contained as to the sale and purchase of such
Shares.
Section
4.4 Action by the
Trustees and Committees. The Trustees (and any committee thereof) may act
at a meeting held in person or in whole or in part by conference
telecommunications equipment. One-third, but not less than two, of the Trustees
shall constitute a quorum at any meeting unless there is only one Trustee.
Except as the Trustees may otherwise determine, one-third of the members of any
committee shall constitute a quorum at any meeting. The vote of a majority of
the Trustees (or committee members) present at a meeting at which a quorum is
present shall be the act of the Trustees (or any committee thereof). The
Trustees (and any committee thereof) may also act by written consent signed by a
majority of the Trustees (or committee members). Regular meetings of the
Trustees may be held at such places and at such times as the Trustees may from
time to time determine. Special meetings of the Trustees (and meetings of any
committee thereof) may be called orally or in writing by the Chairman of the
Board of Trustees (or the chairman of any committee thereof) or by any two other
Trustees. Notice of the time, date and place of all meetings of the Trustees (or
any committee thereof) shall be given by the party calling the meeting to each
Trustee (or committee member) by telephone, telefax, telegram or other
electronic means sent to the person’s home or business address at least
twenty-four hours in advance of the meeting or by written notice mailed to the
person’s home or business address at least seventy-two hours in advance of the
meeting. Notice of all proposed written consents of Trustees (or committees
thereof) shall be given to each Trustee (or committee
-14-
member)
by telephone, telefax, telegram, or first class mail sent to the person’s home
or business address. Notice need not be given to any person who attends a
meeting without objecting to the lack of notice or who executes a written
consent or a written waiver of notice with respect to a meeting. Written
consents or waivers may be executed in one or more counterparts. Execution of a
written consent or waiver and delivery thereof may be accomplished by telefax or
other electronic means approved by the Trustees.
Section
4.5 Chairman of the
Trustees. The Trustees may appoint one of their number to be Chairman of
the Board of Trustees. The Chairman shall preside at all meetings of the
Trustees at which he is present and may be (but is not required to be) the chief
executive officer of the Trust.
Section
4.6 Principal
Transactions. Except to the extent prohibited by applicable law, the
Trustees may, on behalf of the Trust, buy any securities from or sell any
securities to, or lend any assets of the Trust to, any Trustee or officer of the
Trust or any firm of which any such Trustee or officer is a member acting as
principal, or have any such dealings with any Affiliated Person of the Trust,
investment adviser, investment sub-adviser, distributor or transfer agent for
the Trust or with any Interested Person of such Affiliated Person or other
person; and the Trust may employ any such Affiliated Person or other person, or
firm or company in which such Affiliated Person or other person is an Interested
Person, as broker, legal counsel, registrar, investment adviser, investment
sub-adviser, distributor, transfer agent, dividend disbursing agent, custodian
or in any other capacity upon customary terms.
ARTICLE
V
INVESTMENT
ADVISER, INVESTMENT SUB-ADVISER,
PRINCIPAL
UNDERWRITER, ADMINISTRATOR, TRANSFER AGENT,
CUSTODIAN AND OTHER
CONTRACTORS
Section
5.1 Certain
Contracts. Subject to compliance with the provisions of the 1940 Act, but
notwithstanding any limitations of present and future law or custom in regard to
delegation of powers by trustees generally, the Trustees may, at any time and
from time to time and without limiting the generality of their powers and
authority otherwise set forth herein, enter into one or more contracts with any
one or more corporations, trusts, associations, partnerships, limited
partnerships, other type of organizations, or individuals to provide for the
performance and assumption of some or all of the following services, duties and
responsibilities to, for or of the Trust and/or the Trustees, and to provide for
the performance and assumption of such other services, duties and
responsibilities in addition to those set forth below as the Trustees may
determine to be appropriate:
(a) Investment Adviser and
Investment Sub-Adviser. The Trustees may in their discretion, from time
to time, enter into an investment advisory or management contract or contracts
with respect to the Trust or any Series whereby the other party or parties to
such contract or contracts shall undertake to furnish the Trust with such
management, investment advisory, statistical and research facilities and
services and such other facilities and services, if
-15-
any, and
all upon such terms and conditions, as the Trustees may in their discretion
determine. Notwithstanding any other provision of this Trust Instrument, the
Trustees may authorize any investment adviser (subject to such general or
specific instructions as the Trustees may from time to time adopt) to effect
purchases, sales or exchanges of portfolio securities, other investment
instruments of the Trust, or other Trust Property on behalf of the Trustees, or
may authorize any officer, agent, or Trustee to effect such purchases, sales or
exchanges pursuant to recommendations of the investment adviser (and all without
further action by the Trustees). Any such purchases, sales and exchanges shall
be deemed to have been authorized by the Trustees.
The
Trustees may authorize, subject to applicable requirements of the 1940 Act, the
investment adviser to employ, from time to time, one or more sub-advisers to
perform such of the acts and services of the investment adviser, and upon such
terms and conditions, as may be agreed upon between the investment adviser and
sub-adviser. Any reference in this Trust Instrument to the investment adviser
shall be deemed to include such sub-advisers, unless the context otherwise
requires.
(b) Principal
Underwriter. The Trustees may in their discretion from time to time enter
into an exclusive or non-exclusive underwriting contract or contracts providing
for the sale of Shares, whereby the Trust may either agree to sell Shares to the
other party to the contract or appoint such other party its sales agent for such
Shares. In either case, the contract may also provide for the repurchase or sale
of Shares by such other party as principal or as agent of the
Trust.
(c) Administrator. The
Trustees may in their discretion from time to time enter into one or more
contracts whereby the other party or parties shall undertake to furnish the
Trust with administrative services. The contract or contracts shall be on such
terms and conditions as the Trustees may in their discretion
determine.
(d) Transfer Agent. The
Trustees may in their discretion from time to time enter into one or more
transfer agency and Shareholder service contracts whereby the other party or
parties shall undertake to furnish the Trustees with transfer agency and
Shareholder services. The contract or contracts shall be on such terms and
conditions as the Trustees may in their discretion determine.
(e) Servicing Agent. The
Trustees may in their discretion from time to time enter into one or more
contracts whereby the other party or parties shall undertake to furnish the
Trust with Trust and/or Shareholder services. The contract or contracts shall be
on such terms and conditions as the Trustees may in their discretion
determine.
(f) Fund Accounting. The
Trustees may in their discretion from time to time enter into one or more
contracts whereby the other party or parties undertakes to handle all or any
part of the Trust’s accounting responsibilities, whether with respect to the
Trust’s properties, Shareholders or otherwise.
(g) Custodian and
Depository. The Trustees may in their discretion from time to time enter
into one or more contracts whereby the other party or parties undertakes to act
as
-16-
depository
for and to maintain custody of the property of the Trust or any Series or Class
and accounting records in connection therewith.
(h) Parties to Contract.
Any contract described in this Article V hereof may be entered into with any
corporation, firm, partnership, trust or association, although one or more of
the Trustees or officers of the Trust may be an officer, director, trustee,
shareholder, or member of such other party to the contract, and no such contract
shall be invalidated or rendered void or voidable by reason of the existence of
any relationship, nor shall any person holding such relationship be disqualified
from voting on or executing the same in his capacity as Shareholder and/or
Trustee, nor shall any person holding such relationship be liable merely by
reason of such relationship for any loss or expense to the Trust under or by
reason of said contract or accountable for any profit realized directly or
indirectly therefrom, provided that the contract when entered into was not
inconsistent with the provisions of this Article V. The same person (including a
firm, corporation, partnership, trust, or association) may be the other party to
contracts entered into pursuant to this Article V, and any individual may be
financially interested or otherwise affiliated with persons who are parties to
any or all of the contracts mentioned in this Section 5.1.
ARTICLE
VI
SHAREHOLDER VOTING POWERS
AND MEETINGS
Section
6.1 Voting. The
Shareholders shall have power to vote only: (a) for the election of one or more
Trustees in order to comply with the provisions of the 1940 Act (including
Section 16(a) thereof); (b) with respect to any contract entered into pursuant
to Article V to the extent required by the 1940 Act; (c) with respect to
termination of the Trust or a Series or Class thereof to the extent required by
applicable law; and (d) with respect to such additional matters relating to the
Trust as may be required by this Trust Instrument, the By-laws or any
registration of the Trust or Series as an investment company under the 1940 Act
with the Commission (or any successor agency) or as the Trustees may consider
necessary or desirable.
On each
matter submitted to a vote of Shareholders, unless the Trustees determine
otherwise, all Shares of all Series and Classes shall vote as a single class;
provided, however, that: (a) as to any matter with respect to which a separate
vote of any Series or Class is required by the 1940 Act or other applicable law
or is required by attributes applicable to any Series or Class, such
requirements as to a separate vote by that Series or Class shall apply; (b)
unless the Trustees determine that this clause (b) shall not apply in a
particular case, to the extent that a matter referred to in clause (a) above
affects more than one Series or Class and the interests of each such Series or
Class in the matter are identical, then the Shares of all such affected Series
or Classes shall vote as a single class; and (c) as to any matter which does not
affect the interests of a particular Series or Class, only the holders of Shares
of the one or more affected Series or Classes shall be entitled to vote. Each
whole Share shall be entitled to one vote as to any matter on which it is
entitled to vote, and each fractional Share shall be entitled to a proportionate
fractional vote. There shall be no cumulative voting in the election of
Trustees. Shares may be voted in person or by proxy or in any manner provided
for in the By-laws. A proxy may be given
-17-
in
writing, by telefax, other electronic means or in any other manner provided for
in the By-laws. Anything in this Trust Instrument to the contrary
notwithstanding, in the event a proposal by anyone other than the officers or
Trustees of the Trust is submitted to a vote of the Shareholders of the Trust or
one or more Series or Classes thereof, or in the event of any proxy contest or
proxy solicitation or proposal in opposition to any proposal by the officers or
Trustees of the Trust, Shares may be voted only in person or by written proxy.
Until Shares are issued, the Trustees may exercise all rights of Shareholders
and may take any action required or permitted by law, this Trust Instrument or
any of the By-laws of the Trust to be taken by Shareholders.
Section
6.2 Meetings.
Meetings of Shareholders (including meetings involving only the holders of
Shares of one or more but less than all Series or Classes) may be called by the
Trustees from time to time to be held at such place within or without the State
of Delaware, and on such date as may be designated in the call thereof for the
purpose of taking action upon any matter as to which the vote or authority of
the Shareholders is required or permitted as provided in Section 6.1. Special
meetings of the Shareholders of any Series may be called by the Trustees. To the
extent required by the 1940 Act, special meetings of the Shareholders for the
purpose of removing one or more Trustees shall be called by the Trustees upon
the written request of Shareholders owning at least 10 percent (10%) of the
Outstanding Shares entitled to vote. Notice shall be sent, postage prepaid, by
mail or such other means determined by the Trustees, at least 7 days prior to
any such meeting.
Section
6.3 Quorum and
Required Vote. Unless a larger percentage is required by law, by any
provision of this Trust Instrument or by the Trustees, one-third of the Shares
entitled to vote in person or by proxy on a particular matter shall be a quorum
for the transaction of business at a Shareholders’ meeting with respect to that
matter. Any lesser number shall be sufficient for adjournments. Any adjourned
session or sessions may be held without the necessity of further notice. Except
when a larger vote is required by law, by any provision of this Trust Instrument
or by the Trustees, a majority of the Shares voted in person or by proxy on a
particular matter at a meeting at which a quorum is present shall decide any
questions with respect to that matter and a plurality shall elect a
Trustee.
Section
6.4 Action by Written
Consent. Subject to the provisions of the 1940 Act and other applicable
law, any action taken by Shareholders may be taken without a meeting if a
majority of the Shares entitled to vote on the matter (or such larger proportion
thereof as shall be required by law, by any provision of this Trust Instrument
or by the Trustees) consent to the action in writing. Such consent shall be
treated for all purposes as a vote taken at a meeting of Shareholders. The
Trustees may adopt additional rules and procedures regarding the taking of
Shareholder action by written consents.
-18-
ARTICLE
VII
DISTRIBUTIONS AND
REPURCHASES
Section
7.1 Distributions.
(a) The
Trustees may from time to time declare and pay dividends or other distributions
with respect to any Series or Class. The amount of such dividends or
distributions and the payment of them and whether they are in cash or any other
Trust Property shall be wholly in the discretion of the Trustees.
(b)
Dividends and other distributions may be paid or made to the Shareholders of
record at the time of declaring a dividend or other distribution or among the
Shareholders of record at such other date or time or dates or times as the
Trustees shall determine, which dividends or distributions, at the election of
the Trustees, may be paid pursuant to a standing resolution or resolutions
adopted only once or with such frequency as the Trustees may determine. All
dividends and other distributions on Shares of a particular Class shall be
distributed pro rata to the Shareholders of that Series or Class in proportion
to the number of Shares of that Series or Class they held on the record date
established for such payment, except that in connection with any dividend or
distribution program or procedure the Trustees may determine that no dividend or
distribution shall be payable on Shares as to which the Shareholder’s purchase
order and/or payment in the prescribed form has not been received by the time or
times established by the Trustees under such program or procedure. The Trustees
may adopt and offer to Shareholders such dividend reinvestment plans, cash
dividend payout plans or related plans as the Trustees shall deem
appropriate.
(c) Anything
in this Trust Instrument to the contrary notwithstanding, the Trustees may at
any time declare and distribute a stock dividend pro rata among the Shareholders
of a particular Series, or Class thereof, as of the record date of that Series
or Class fixed as provided in Section (b) hereof. The Trustees shall have full
discretion, to the extent not inconsistent with the 1940 Act, to determine which
items shall be treated as income and which items as capital; and each such
determination and allocation shall be conclusive and binding upon the
Shareholders.
Section
7.2 Transfer of
Shares.
(a) Any
Shares held by a Shareholder may be transferred only (1) by operation of law
pursuant to the death, bankruptcy, insolvency, adjudicated incompetence, or
dissolution of the Shareholder or (2) under certain limited instances set out in
this Trust Instrument, with the consent of the Trustees (which may be withheld
in the Trustees’ sole and absolute discretion). If a Shareholder transfers
Shares with the approval of the Trustees, the Trustees will promptly take all
necessary actions so that each transferee or successor to whom or to which the
Shares are transferred is admitted to the Trust as a Shareholder. The admission
of any transferee as a substituted Shareholder will be effective upon the
execution and delivery by, or on behalf of, the substituted Shareholder of an
investor application form. Each Shareholder and transferee agrees to pay all
expenses, including attorneys’ and accountants’ fees, incurred by the Trust
in
-19-
connection
with any transfer. In connection with any request to transfer Shares, the Trust
may require the Shareholder requesting the transfer to obtain, at the
Shareholder’s expense, an opinion of counsel selected by the Trustees as to such
matters as the Trustees may reasonably request. If a Shareholder transfers all
of its Shares, it will not cease to be a Shareholder unless and until the
transferee is admitted to the Trust as a substituted Shareholder in accordance
with this Section 7.2(a). Any transfer of Shares permitted under this Section
7.2(a) will be effected in accordance with the provisions of Section 2.4 hereof.
Pursuant to Section 4.1(j) hereof, the Trustees hereby delegate to the officers
of the Trust all power and authority to approve and effect transfers of Shares
pursuant to this Section 7.2(a).
(b) Each
Shareholder will indemnify and hold harmless the Trust, the Trustees, each other
Shareholder and any Affiliated Person of the Trust, the Trustees, the investment
adviser, any sub-adviser and each of the other Shareholders against all losses,
claims, damages, liabilities, costs and expenses (including legal or other
expenses incurred in investigating or defending against any losses, claims,
damages, liabilities, costs and expenses or any judgments, fines and amounts
paid in settlement), joint or several, to which these Persons may become subject
by reason of or arising from (1) any transfer made by the Shareholder in
violation of this Section 7.2 and (2) any misrepresentation by the transferring
Shareholder or substituted Shareholder in connection with the transfer. A
Shareholder transferring Shares may be charged reasonable expenses, including
attorneys’ and accountants’ fees, incurred by the Trust in connection with the
transfer, by setting off such charges due from such Shareholder from declared
but unpaid dividends or distributions owed such Shareholder and/or by reducing
the number of shares in the account of such Shareholder by that number of full
and/or fractional Shares which represents the outstanding amount of such charges
due from such Shareholder.
Section
7.3 Repurchases and
Redemptions.
(a)
Except as otherwise provided in this Trust Instrument, no Shareholder or other
person holding Shares will have the right to withdraw or tender Shares to the
Trust for repurchase. The Trustees may, from time to time, in their complete and
exclusive discretion and on terms and conditions as they may determine, cause
the Trust to repurchase Shares in accordance with written tenders. In
determining whether to cause the Trust to repurchase Shares, pursuant to written
tenders, the Trustees will consider the following factors, among
others:
|
|
(i)
|
the
recommendation of any investment
adviser;
|
|
|
(ii)
|
whether
any Shareholders have requested to tender Shares or portions thereof to
the Trust;
|
|
|
(iii)
|
the
liquidity of the Trust’s assets (including fees and costs associated with
withdrawing from investments);
|
|
|
(iv)
|
the
investment plans and working capital requirements of the
Trust;
|
|
|
(v)
|
the
relative economies of scale with respect to the size of the
Trust;
|
-20-
|
|
(vi)
|
the
history of the Trust in repurchasing Shares or portions
thereof;
|
|
|
(vii)
|
the
availability of information as to the value of the Trust’s
assets;
|
|
|
(viii)
|
the
economic condition of the securities markets and the economy generally as
well as political, national or international developments or current
affairs; and
|
|
|
(ix)
|
the
anticipated tax consequences to the Trust of any proposed repurchases of
Shares or portions thereof.
|
The
Trustees will cause the Trust to repurchase Shares in accordance with written
tenders only on terms fair to the Trust and to all Shareholders.
(b) The
Trustees may cause the Trust to repurchase or redeem Shares of a Shareholder or
any person acquiring Shares from or through a Shareholder, on terms fair to the
Trust and to the Shareholder or person acquiring Shares from or through such
Shareholder, in the event that the Trustees, in their sole discretion, determine
or have reason to believe that:
|
|
(i)
|
the
Shares have been transferred in violation of Section 7.2 of this Trust
Instrument, or the Shares have vested in any person other than by
operation of law as the result of the death, dissolution, bankruptcy,
insolvency or adjudicated incompetence of the
Shareholder;
|
|
|
(ii)
|
ownership
of the Shares by a Shareholder or other person is likely to cause the
Trust to be in violation of, or require registration of any Shares under,
or subject the Trust to additional registration or regulation under, the
securities, commodities or other laws of the United States or any other
relevant jurisdiction;
|
|
|
(iii)
|
continued
ownership of the Shares may be harmful or injurious to the business or
reputation of the Trust, the Trustees or the investment adviser or any of
their Affiliated Persons, or may subject the Trust or any of the
Shareholders to an undue risk of adverse tax or other fiscal or regulatory
consequences;
|
|
|
(iv)
|
any
of the representations and warranties made by a Shareholder or other
person in connection with the acquisition of the Shares was not true when
made or has ceased to be true; or
|
|
|
(v)
|
it
would be in the best interests of the Trust, as determined by the
Trustees, for the Trust to repurchase the
Shares.
|
(c) Shares
will be repurchased at their Net Asset Value determined as of the Valuation
Date. Shareholders tendering Shares for repurchase will be asked to give written
notice of their intent to do so by the date specified in the notice describing
the terms of the
-21-
applicable
repurchase offer, which date will be approximately 95 days prior to the date of
repurchase by the Trust. Shareholders who tender may not have all of the
tendered Shares repurchased by the Trust. If over-subscriptions occur, the Trust
may elect to repurchase less than the full amount that a Shareholder requests to
be repurchased. If a repurchase offer is oversubscribed, the Trust may
repurchase only a pro rata portion of the amount tendered by each Shareholder.
The Trustees, in their complete and absolute discretion, may under certain
circumstances elect to postpone, suspend or terminate an offer to repurchase
Shares.
(d) The
Trust will pay the value of the Shares to be repurchased within approximately 90
days after the Valuation Date. Payment of the purchase price for Shares will
consist of cash or a promissory note, which will be non-transferable and need
not bear interest, in an amount equal to the percentage, as may be determined by
the Trustees, of the estimated unaudited net asset value of the Shares
repurchased by the Trust determined as of the Valuation Date (or as discussed
below, 95% of such value if all Shares owned by a Shareholder are repurchased).
This amount will be subject to adjustment within 45 days after completion of the
annual audit of the Trust’s financial statements for the fiscal year in which
the repurchase is effected. To mitigate any effects of this, if all Shares owned
by a Shareholder are repurchased, the Shareholder will receive an initial
payment equal to 95% of the estimated value of the Shares (after adjusting for
fees, expenses, reserves or other allocations or redemption charges) within
approximately 90 days after the Valuation Date, subject to audit adjustment, and
the balance due will be determined and paid within 45 days after completion of
the Trust’s annual audit. Notwithstanding anything to the contrary in this
Section 7.3, the Trustees, in their discretion, may cause the Trust to pay all
or any portion of the repurchase price in Securities in kind (or any combination
of Securities in kind and cash) having a value, determined as of the date of
repurchase, equal to the amount to be repurchased. All repurchases of Shares
will be subject to any and all conditions as the Trustees may impose in their
sole discretion. The Trustees may, in their discretion, cause the Trust to
repurchase all of a Shareholder’s Shares, if the Net Asset Value of the
Shareholder’s Shares, as a result of repurchase or transfer requests by the
Shareholder, is less than $50,000 or such other minimum amount established by
the Trustees from time to time in their sole discretion. Subject to the
procedures of this Section 7.3, the amount due to any Shareholder whose Shares
are repurchased will be equal to the Net Asset Value of the Shareholder’s
Shares, as of the Valuation Date. If all of a Shareholder’s Shares are
repurchased, that Shareholder will cease to be a Shareholder.
(e) Notwithstanding
the foregoing, the Trust may postpone payment of the repurchase price and may
suspend repurchases during any period or at any time when and to the extent
permissible under the 1940 Act.
(f) In
the event that a Shareholder shall submit a request for the redemption of a
greater number of Shares than are then allocated to such Shareholder, such
request shall not be honored.
Section
7.4 Net Asset
Value. The Net Asset Value per Share (including of any Series or Class
thereof) shall be the quotient obtained by dividing the value of the net assets
of the Trust (or the applicable Series or Class (being the value of the assets
belonging to that Series or Class less the liabilities belonging to that Series
or Class)) by the total number of Shares of the Trust or
-22-
that
Series or Class outstanding, all determined in accordance with the methods and
procedures, including without limitation those with respect to rounding,
established by the Trustees from time to time.
ARTICLE
VIII
LIMITATION OF LIABILITY AND
INDEMNIFICATION
Section
8.1 Limitation of
Liability. Neither a Trustee nor an officer of the Trust, when acting in
such capacity, shall be personally liable to any person other than the Trust or
a beneficial owner for any act, omission or obligation of the Trust, any Trustee
or any officer of the Trust. Neither a Trustee nor an officer of the Trust shall
be liable for any act or omission in his capacity as Trustee or as an officer of
the Trust, or for any act or omission of any other officer or any employee of
the Trust or of any other person or party, provided that nothing contained
herein or in the Act shall protect any Trustee or officer against any liability
to the Trust or to Shareholders to which he would otherwise be subject by reason
of willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the office of Trustee or the duties of such
officer hereunder.
Section
8.2 Indemnification. The
Trust shall indemnify each of its Trustees and officers and persons who serve at
the Trust’s request as directors, officers or trustees of another organization
in which the Trust has any interest as a shareholder, creditor, or otherwise,
and may indemnify any trustee, director or officer of a predecessor organization
(each a “Covered Person”), against all liabilities and expenses (including
amounts paid in satisfaction of judgments, in compromise, as fines and
penalties, and expenses including reasonable accountants’ and counsel fees)
reasonably incurred in connection with the defense or disposition of any action,
suit or other proceeding, whether civil or criminal, before any court or
administrative or legislative body, in which he may be involved or with which he
may be threatened, while as a Covered Person or thereafter, by reason of being
or having been such a Covered Person, except that no Covered Person shall be
indemnified against any liability to the Trust or its Shareholders to which such
Covered Person would otherwise be subject by reason of bad faith, willful
misfeasance, gross negligence or reckless disregard of his duties involved in
the conduct of such Covered Person’s office (such willful misfeasance, bad
faith, gross negligence or reckless disregard being referred to herein as
“Disabling Conduct”). Expenses, including accountants’ and counsel fees so
incurred by any such Covered Person (but excluding amounts paid in satisfaction
of judgments, in compromise or as fines or penalties), may be paid from time to
time by the Trust in advance of the final disposition of any such action, suit
or proceeding upon receipt of (a) an undertaking by or on behalf of such Covered
Person to repay amounts so paid to the Trust if it is ultimately determined that
indemnification of such expenses is not authorized under this Article VIII and
either (b) such Covered Person provides security for such undertaking, (c) the
Trust is insured against losses arising by reason of such payment, or (d) a
majority of a quorum of disinterested, non-party Trustees, or independent legal
counsel in a written opinion, determines, based on a review of readily available
facts, that there is reason to believe that such Covered Person ultimately will
be found entitled to indemnification.
-23-
Section
8.3 Indemnification
Determinations. Indemnification of a Covered Person pursuant to Section
8.2 shall be made if (a) the court or body before whom the proceeding is brought
determines, in a final decision on the merits, that such Covered Person was not
liable by reason of Disabling Conduct or (b) in the absence of such a
determination, a majority of a quorum of disinterested, non-party Trustees or
independent legal counsel in a written opinion make a reasonable determination,
based upon a review of the facts, that such Covered Person was not liable by
reason of Disabling Conduct.
Section
8.4 Indemnification
Not Exclusive. The right of indemnification provided by this Article VIII
shall not be exclusive of or affect any other rights to which any such Covered
Person may be entitled. As used in this Article VIII, “Covered Person” shall
include such person’s heirs, executors and administrators, and a “disinterested,
non-party Trustee” is a Trustee who is neither an Interested Person of the Trust
nor a party to the proceeding in question.
Section
8.5 Shareholders. Each
Shareholder of the Trust and of each Series or Class shall not be personally
liable for the debts, liabilities, obligations and expenses incurred by,
contracted for, or otherwise existing with respect to, the Trust or by or on
behalf of any Series or Class. The Trustees shall have no power to bind any
Shareholder personally or to call upon any Shareholder for the payment of any
sum of money or assessment whatsoever other than such as the Shareholder may at
any time personally agree to pay pursuant to terms hereof or by way of
subscription for any Shares or otherwise.
In case
any Shareholder or former Shareholder of any Series or Class shall be held to be
personally liable solely by reason of his being or having been a Shareholder of
such Series or Class and not because of his acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his heirs, executors,
administrators or other legal representatives, or, in the case of a corporation
or other entity, its corporate or other general successor) shall be entitled out
of the assets belonging to the applicable Series or Class to be held harmless
from and indemnified against all loss and expense arising from such liability.
The Trust, on behalf of the affected Series, shall, upon request by the
Shareholder, assume the defense of any claim made against the Shareholder for
any act or obligation of the Series or Class and satisfy any judgment thereon
from the assets of the Series or Class. The indemnification and reimbursement
required by the preceding sentence shall be made only out of assets of the one
or more Series or Classes whose Shares were held by said Shareholder at the time
the act or event occurred which gave rise to the claim against or liability of
said Shareholder. The rights accruing to a Shareholder under this Section shall
not impair any other right to which such Shareholder may be lawfully entitled,
nor shall anything herein contained restrict the right of the Trust or any
Series or Class thereof to indemnify or reimburse a Shareholder in any
appropriate situation even though not specifically provided herein.
-24-
ARTICLE
IX
MISCELLANEOUS
Section
9.1 Trust Not a
Partnership. It is hereby expressly declared that a trust and not a
partnership is created hereby. All persons extending credit to, contracting with
or having any claim against any Series of the Trust or any Class within any
Series shall look only to the assets of such Series or Class for payment under
such credit, contract or claim; and neither the Shareholders nor the Trustees,
nor any of the Trust’s officers, employees or agents, whether past, present or
future, shall be personally liable therefor. Every note, bond, contract or other
undertaking issued by or on behalf of the Trust or the Trustees relating to the
Trust or to a Series or Class shall include a recitation limiting the
obligations represented thereby to the Trust or to one or more Series or Classes
and its or their assets (but the omission of such a recitation shall not operate
to bind any Shareholder, Trustee, officer, employee or agent of the
Trust).
Section
9.2 Trustees’ Good
Faith Action, Expert Advice, No Bond or Surety. The exercise by the
Trustees of their powers and discretions hereunder shall be binding upon
everyone interested. Subject to the provisions of Article VIII: (i) the Trustees
shall not be responsible or liable in any event for any neglect or wrongdoing of
any officer, agent, employee, consultant, adviser, administrator, distributor or
principal underwriter, custodian or transfer, dividend disbursing, Shareholder
servicing or accounting agent of the Trust, nor shall any Trustee be responsible
for the act or omission of any other Trustee; (ii) the Trustees may take advice
of counsel or other experts with respect to the meaning and operation of this
Trust Instrument and their duties as Trustees, and shall be under no liability
for any act or omission in accordance with such advice or for failing to follow
such advice; and (iii) in discharging their duties, the Trustees, when acting in
good faith, shall be entitled to rely upon the books of account of the Trust and
upon written reports made to the Trustees by any officer appointed by them, any
independent public accountant, and (with respect to the subject matter of the
contract involved) any officer, partner or responsible employee of a contracting
party appointed by the Trustees. The Trustees as such shall not be required to
give any bond or surety or any other security for the performance of their
duties.
Section
9.3 Establishment of
Record Dates. The Trustees may close the Share transfer books of the
Trust for a period not exceeding one hundred twenty (120) days preceding the
date of any meeting of Shareholders, or the date for the payment of any
dividends or other distributions, or the date for the allotment of rights, or
the date when any change or conversion or exchange of Shares shall go into
effect; or in lieu of closing the stock transfer books as aforesaid, the
Trustees may fix in advance a date, not exceeding one hundred twenty (120) days
preceding the date of any meeting of Shareholders, or the date for payment of
any dividend or other distribution, or the date for the allotment of rights, or
the date when any change or conversion or exchange of Shares shall go into
effect, as a record date for the determination of the Shareholders entitled to
notice of, and to vote at, any such meeting, or entitled to receive payment of
any such dividend or other distribution, or to any such allotment of rights, or
to exercise the rights in respect of any such change, conversion or exchange of
Shares, and in such case such
-25-
Shareholders
and only such Shareholders as shall be Shareholders of record on the date so
fixed shall be entitled to such notice of, and to vote at, such meeting, or to
receive payment of such dividend or other distribution, or to receive such
allotment or rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any Shares on the books of the Trust after any
such record date fixed as aforesaid.
Section
9.4 Dissolution and
Termination of Trust or Series.
(a) This
Trust shall continue without limitation of time but subject to the provisions of
sub-sections (b) and (c) of this Section 9.4.
(b)
Notwithstanding anything in Section 9.5 to the contrary, the Trustees may
without Shareholder approval (unless such approval is required by the 0000 Xxx)
in dissolution of the Trust or an applicable Series or Class liquidate,
reorganize or dissolve the Trust or an applicable Series or Class in any manner
or fashion not inconsistent with applicable law, including, without
limitation,
|
|
(i)
|
sell
and convey all or substantially all of the assets of the Trust or any
Series or Class to another trust, partnership, limited liability company,
association or corporation, or to a separate Series or Class of shares
thereof, organized under the laws of any state or jurisdiction, for
adequate consideration which may include the assumption of all outstanding
obligations, taxes and other liabilities, accrued or contingent, of the
Trust or any Series or Class, and which may include shares of beneficial
interest, stock or other ownership interests of such trust, partnership,
limited liability company, association or corporation or of a series
thereof; or
|
|
|
(ii)
|
at
any time sell and convert into money all of the assets of the Trust or any
Series or Class.
|
Following
a sale or conversion in accordance with the foregoing sub-section 9.4(b)(i) or
(ii), and upon making reasonable provision, in the determination of the
Trustees, for the payment of all liabilities of the Trust or the affected Series
or Class as required by applicable law, by such assumption or otherwise, the
Shareholders of each Class of a Series involved in such sale or conversion shall
be entitled to receive, as a Class, when and as declared by the Trustees, the
excess of the assets belonging to that Series that are allocated to such Class
over the liabilities belonging to that Series that are allocated to such Class.
The assets so distributable to the Shareholders of any particular Class of a
Series shall be distributed among such Shareholders in proportion to the number
of Shares of that Class held by them and recorded on the books of the Trust. In
the event a Series is not divided into Classes, the foregoing provisions shall
be applied on a Series by Series basis.
(c) Upon
completion of the distribution of the remaining proceeds or the remaining assets
as provided in sub-section (b), the Trust (in the case of a sale or conversion
with respect to the Trust as a whole or the last remaining Series) or any
affected Series or Class shall
-26-
terminate
and the Trustees and the Trust or any affected Series or Class shall be
discharged of any and all further liabilities and duties hereunder and the
right, title and interest of all parties with respect to the Trust or such
affected Series or Class shall be cancelled and discharged.
Upon
termination of the Trust, following completion of winding up of its business,
the Trustees shall cause a certificate of cancellation of the Trust’s
certificate of trust to be filed in accordance with the Act, which certificate
of cancellation may be signed by any one Trustee.
Section
9.5 Merger,
Consolidation, Incorporation. Anything in this Trust Instrument to the
contrary notwithstanding, the Trustees, in order to change the form of
organization and/or domicile of the Trust, may, without prior Shareholder
approval, (i) cause the Trust to merge or consolidate with or into one or more
trusts, partnerships, limited liability companies, associations or corporations
which is or are formed, organized or existing under the laws of a state,
commonwealth possession or colony of the United States, or (ii) cause the Trust
to incorporate under the laws of Delaware. Any agreement of merger or
consolidation or certificate of merger may be signed by a majority of the
Trustees. Pursuant to and in accordance with the provisions of Section 3815(f)
of the Act, and notwithstanding anything to the contrary contained in this Trust
Instrument, an agreement of any merger or consolidation approved in accordance
with this Section 9.5 may effect any amendment to the Trust Instrument or effect
the adoption of a new trust instrument of the Trust if it is the surviving or
resulting trust in the merger or consolidation. Any merger or consolidation of
the Trust other than as described in the foregoing provisions of this Section
9.5 shall, in addition to the approval of the Trustees, require a Majority
Shareholder Vote. Nothing in this Section 9.5 shall require, however,
Shareholder approval of any transaction whereby the Trust or any Series thereof
acquires or assumes all or any part of the assets and liabilities of any other
entity.
Section
9.6 Filing of Copies,
References, Headings. The original or a copy of this Trust Instrument and
of each amendment hereof or Trust Instrument supplemental hereto shall be kept
at the office of the Trust where it may be inspected by any Shareholder. Anyone
dealing with the Trust may rely on a certificate by an officer or Trustee of the
Trust as to whether or not any such amendments or supplements have been made and
as to any matters in connection with the Trust hereunder, and with the same
effect as if it were the original, may rely on a copy certified by an officer or
Trustee of the Trust to be a copy of this Trust Instrument or of any such
amendment or supplemental Trust Instrument. In this Trust Instrument or in any
such amendment or supplemental Trust Instrument, references to this Trust
Instrument, and all expressions like “herein,” “hereof” and “hereunder,” shall
be deemed to refer to this Trust Instrument as amended or affected by any such
supplemental Trust Instrument. All expressions like “his,” “he” and “him,” shall
be deemed to include the feminine and neuter, as well as masculine, genders.
Headings are placed herein for convenience of reference only and in case of any
conflict, the text of this Trust Instrument rather than the headings, shall
control. This Trust Instrument may be executed in any number of counterparts
each of which shall be deemed an original.
Section
9.7 Applicable
Law. The trust set forth in this instrument is made in the State of
Delaware, and the Trust and this Trust Instrument, and the rights and
obligations of the Trustees and Shareholders hereunder, are to be governed by
and construed and administered according to
-27-
the Act
and the laws of said State; provided, however, that there shall not be
applicable to the Trust, the Trustees or this Trust Instrument (a) the
provisions of Section 3540 of Title 12 of the Delaware Code or (b) any
provisions of the laws (statutory or common) of the State of Delaware (other
than the Act) pertaining to trusts which relate to or regulate: (i) the filing
with any court or governmental body or agency of trustee accounts or schedules
of trustee fees and charges, (ii) affirmative requirements to post bonds for
trustees, officers, agents or employees of a trust, (iii) the necessity for
obtaining court or other governmental approval concerning the acquisition,
holding or disposition of real or personal property, (iv) fees or other sums
payable to trustees, officers, agents or employees of a trust, (v) the
allocation of receipts and expenditures to income or principal, (vi)
restrictions or limitations on the permissible nature, amount or concentration
of trust investments or requirements relating to the titling, storage or other
manner of holding of trust assets, or (vii) the establishment of fiduciary or
other standards or responsibilities or limitations on the acts or powers of
trustees, which are inconsistent with the limitations or liabilities or
authorities and powers of the Trustees set forth or referenced in this Trust
Instrument. The Trust shall be of the type commonly called a “statutory trust,”
and without limiting the provisions hereof, the Trust may exercise all powers
which are ordinarily exercised by such a trust under Delaware law. The Trust
specifically reserves the right to exercise any of the powers or privileges
afforded to trusts or actions that may be engaged in by trusts under the Act,
and the absence of a specific reference herein to any such power, privilege or
action shall not imply that the Trust may not exercise such power or privilege
or take such actions.
Section
9.8 Amendments.
Except as specifically provided herein, the Trustees may, without Shareholder
vote, amend or otherwise supplement this Trust Instrument by making an
amendment, a Trust Instrument supplemental hereto or an amended and restated
trust instrument. Shareholders shall have the right to vote: (i) on any
amendment which would affect their right to vote granted in Section 6.1, (ii) on
any amendment to this Section 9.8, (iii) on any amendment for which such vote is
required by law and (iv) on any amendment submitted to them by the Trustees. Any
amendment required or permitted to be submitted to Shareholders which, as the
Trustees determine, shall affect the Shareholders of one or more Series or
Classes shall be authorized by vote of the Shareholders of each Series or Class
affected and no vote of shareholders of a Series or Class not affected shall be
required. Anything in this Trust Instrument to the contrary notwithstanding, any
amendment to Article VIII hereof shall not limit the rights to indemnification
or insurance provided therein with respect to action or omission of any persons
protected thereby prior to such amendment.
Section
9.9 Fiscal
Year. The fiscal year of the Trust shall end on a specified date as
determined from time to time by the Trustees.
Section
9.10 Provisions in Conflict with
Law. The provisions of this Trust Instrument are severable, and if the
Trustees shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the regulated investment company
provisions of the Internal Revenue Code or with other applicable laws and
regulations, the conflicting provision shall be deemed never to have constituted
a part of this Trust Instrument; provided, however, that such determination
shall not affect any of the remaining provisions of this Trust Instrument or
render invalid or improper any action taken or omitted prior to such
determination. If any
-28-
provision
of this Trust Instrument shall be held invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall attach only to such
provision in such jurisdiction and shall not in any manner affect such
provisions in any other jurisdiction or any other provision of this Trust
Instrument in any jurisdiction.
Section
9.11 Allocation of Certain
Expenses. Each Shareholder will, at the discretion of the Trustees,
indemnify the Trust against all expenses and losses resulting from indebtedness
incurred in connection with facilitating (i) requests pending receipt of the
collected funds from investments sold on the date of such Shareholder’s
redemption request; (ii) redemption requests from such Shareholder who has also
notified the Trust of its intention to deposit funds in its accounts on the date
of said redemption request; or (iii) the purchase of investments pending receipt
of collected funds from such Shareholder who has notified the Trust of its
intention to deposit funds in its accounts on the date of the purchase of the
investments.
IN
WITNESS WHEREOF, the undersigned, being the Trustee of the Trust, has executed
this Declaration of Trust as of the 9th day of June, 2009.
/s/ Xxxxx X.
Xxxxxxx
Xxxxx X.
Xxxxxxx, as Trustee and
not
individually
-29-
