XXXXXX DIVERSIFIED OPPORTUNITIES FUND
A Delaware Statutory Trust
AGREEMENT AND DECLARATION OF TRUST
December 2, 2014
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XXXXXX DIVERSIFIED OPPORTUNITIES FUND
TABLE OF CONTENTS
ARTICLE I NAME, REGISTERED AGENT, AND DEFINITIONS 1
Section 1. Name 1
Section 2. Registered Agent 1
Section 3. Definitions 1
ARTICLE II PURPOSE OF TRUST 2
ARTICLE III SHARES 3
Section 1. Division of Beneficial Interest 3
Section 2. Ownership of Shares 4
Section 3. Investments in the Trust 4
Section 4. Status of Shares and Limitation of Personal Liability 4
Section 5. Power of Board of Trustees to Change Provisions Relating
to Shares 4
Section 6. Establishment and Designation of Classes 5
ARTICLE IV THE BOARD OF TRUSTEES 7
Section 1. Number, Election and Tenure 7
Section 2. Effect of Death, Resignation, etc. of a Trustee 7
Section 3. Powers 8
Section 4. Payment of Expenses by the Trust 11
Section 5. Payment of Expenses by Shareholders 11
Section 6. Ownership of Assets of the Trust 11
Section 7. Service Contracts. 12
ARTICLE V SHAREHOLDERS' VOTING POWERS AND MEETINGS 13
Section 1. Voting Powers 13
Section 2. Voting Power and Meetings 13
Section 3. Quorum and Required Vote 13
Section 4. Action by Written Consent 14
Section 5. Record Dates 14
ARTICLE VI NET ASSET VALUE, DISTRIBUTIONS, AND REPURCHASES 14
Section 1. Determination of Net Asset Value, Net Income and Distributions 14
Section 2. Record Date for Dividends and Distributions 14
Section 3. Repurchases 14
Section 4. Redemptions at the Option of the Trust 15
Section 5. Suspension of the Right of Xxxxxxxxxx 00
Section 6. Redemption of Shares to Qualify as Regulated Investment Company 15
ARTICLE VII COMPENSATION AND LIMITATION OF LIABILITY OF TRUSTEES 15
Section 1. Compensation 15
Section 2. Indemnification and Limitation of Liability 15
Section 3. Trustee's Good Faith Action, Expert Advice, No Bond or Surety 16
Section 4. Insurance 16
Section 5. Trustee Qualifications and Experience 16
ARTICLE VIII MISCELLANEOUS 17
Section 1. Liability of Third Persons Dealing with Trustees 17
Section 2. Dissolution and Termination of Trust or Class of Shares 17
Section 3. Merger, Consolidation and Sale of Assets. 17
Section 4. Amendments 19
Section 5. Filing of Copies, References, Headings, Etc 19
Section 6. Applicable Law 19
Section 7. Provisions in Conflict with Law or Regulations 20
Section 8. Trust Not a Partnership 20
Section 9. Fiscal Year 20
Section 10. Delivery by Electronic Transmission or Otherwise 20
Section 11. Applicability of 1940 Act and Registration Statement 20
Section 12. Trustees May Resolve Ambiguities 20
Section 13. Use of the Name "Xxxxxx" 21
AGREEMENT AND DECLARATION OF TRUST
OF
XXXXXX DIVERSIFIED OPPORTUNITIES FUND
THIS AGREEMENT AND DECLARATION OF TRUST is made and entered into as
of the date set forth below by the Sole Trustee named hereunder for the purpose
of forming a Delaware statutory trust in accordance with the provisions
hereinafter set forth, to be effective upon the filing of the executed
Certificate of Trust with the State of Delaware; and
NOW, THEREFORE, the Sole Trustee hereby directs that a Certificate of
Trust be filed with the Office of the Secretary of State of the State of
Delaware and the Sole Trustee does hereby declare that the Sole Trustee will
hold IN TRUST all cash, securities, and other assets which the Trust now
possesses or may hereafter acquire from time to time in any manner and manage
and dispose of the same upon the following terms and conditions for the benefit
of the holders from time to time of shares of beneficial interest in this Trust
as hereinafter set forth.
ARTICLE I
NAME, REGISTERED AGENT, AND DEFINITIONS
SECTION 1. NAME. The name of the Trust shall be "Xxxxxx Diversified
Opportunities Fund" and the Trustees shall conduct the business of the Trust
under that name or any other name as they may from time to time determine.
SECTION 2. REGISTERED AGENT. The name of the registered agent of the
Trust and the address of the registered office of the Trust are as set forth in
the Certificate of Trust.
SECTION 3. DEFINITIONS. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) The "1940 Act" shall mean the Investment Company Act of 1940, the
rules and regulations thereunder or any exemption therefrom, as such statute,
rules or regulations may be amended or interpreted from time to time, and any
successor statute thereto;
(b) "Bylaws" shall mean the Bylaws of the Trust as amended from time
to time, which together with this Agreement and Declaration of Trust, shall
constitute the governing instruments of the Trust;
(c) "Class" refers to each class of Shares established and designated
under or in accordance with the provisions of Article III, Section 6 hereof and
Section 3806(b)(1) of the Delaware Act;
(d) The terms "Commission" and "Principal Underwriter" shall have the
meanings given them in the 1940 Act;
(e) "Declaration of Trust" shall mean this Agreement and Declaration
of Trust, as amended or restated from time to time;
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(f) "Delaware Act" shall mean the Delaware Statutory Trust Act (12
DEL. C. [section] 3801 ET SEQ.), as such statute may be amended or interpreted
from time to time, and any legislative enactment which may replace or supersede
such Act;
(g) The term "Interested Person" has the meaning given it in Section
2(a)(19) of the 1940 Act;
(h) The "Internal Revenue Code" refers to the Internal Revenue Code of
1986 and the regulations thereunder, or any exemption therefrom, as such
statute, rules or regulations may be amended or interpreted from time to time,
and any successor statue thereto;
(i) "Investment Manager" or "Administrator" means a party furnishing
services to the Trust pursuant to any contract described in Article IV, Section
7(a) hereof;
(j) "Outstanding Shares" means those Shares shown from time to time
in the books of the Trust or its transfer agent as then issued and outstanding,
but shall not include Shares that have been redeemed or repurchased by the
Trust and that are at the time held in the treasury of the Trust;
(k) "Person" has the meaning given in Section 3801(f) of the Delaware
Act;
(l) "Shareholder" means a record owner of Outstanding Shares;
(m) "Shares" means the shares of beneficial interest into which the
beneficial interest in the Trust or in each Class thereof shall be divided from
time to time and includes fractions of Shares as well as whole Shares;
(n) "Sole Trustee" refers to the person who has signed this
Declaration of Trust.
(o) The "Trust" refers to Xxxxxx Diversified Opportunities Fund, the
Delaware statutory trust established by this Declaration of Trust;
(p) "Trustee" or "Trustees" refer to the person or persons who has or
have signed this Declaration of Trust, so long as he, she or they shall
continue in office in accordance with the terms hereof, and all other persons
who may from time to time be duly elected or appointed to serve on the Board of
Trustees in accordance with the provisions hereof, and reference herein to a
Trustee or the Trustees shall refer to such person or persons in their capacity
as trustees hereunder; and
(q) The "Trust Property" means any and all property, real or
personal, tangible or intangible, which is owned or held by or for the account
of the Trust, or by the Trustees on behalf of the Trust.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the
business of a management investment company registered under the 1940 Act
investing primarily in securities and other instruments and rights of a
financial character and to exercise all of the powers and privileges granted to
a statutory trust formed under the laws of the State of Delaware and a
management investment company registered under the 1940 Act, now or hereafter
in force.
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ARTICLE III
SHARES
SECTION 1. DIVISION OF BENEFICIAL INTEREST. The beneficial interest
in the Trust shall at all times be divided into an unlimited number of Shares,
with no par value per Share. All Shares when issued hereunder on the terms
determined by the Trustees shall be fully paid and non-assessable. As permitted
by Section 3806(b)(1) of the Delaware Act, the Trustees may authorize the
division of Shares into separate Classes of common Shares without the vote of
Shareholders (the "Common Shares"). The Trust may also, from time to time,
issue a Class of an unlimited number of preferred Shares of the Trust, no par
value (the "Preferred Shares"), having the powers, preferences, rights,
qualifications, limitations and restrictions described in this Declaration
Trust.
Subject to the provisions of Section 6 of this Article III and the
resolutions adopted by the Board of Trustees in the establishment of such
Shares, each Share shall have voting rights as provided in Article V hereof,
and holders of the Shares shall be entitled to receive dividends and
distributions, when, if and as declared with respect thereto in the manner
provided in Article VI, Section 1 hereof. Subject to the resolutions adopted by
the Board of Trustees in the establishment of such Shares, no Share shall have
any priority or preference over any other Share of the same Class with respect
to dividends or distributions paid in the ordinary course of business or
distributions upon termination of the Trust made pursuant to Article VIII,
Section 2 hereof. Subject to the resolutions adopted by the Board of Trustees
in the establishment of such Shares, all dividends and distributions shall be
made ratably among all Shareholders of a particular Class according to the
number of Shares of such Class held of record by such Shareholder on the record
date for any dividend or distribution or on the date of termination, as the
case may be. Subject to the resolutions adopted by the Board of Trustees in the
establishment of such Shares, Shareholders shall have no preemptive or other
right to subscribe to any additional Shares or other securities issued by the
Trust. The Trustees may from time to time divide or combine the Shares into a
greater or lesser number of Shares without thereby materially changing the
proportionate beneficial interest of the Shares in the assets of the Trust.
Preferred Shares. The Preferred Shares shall be issued from time to
time in one or more classes or series with such distinctive serial designations
and (i) may have such voting powers, full or limited; (ii) may be subject to
repurchase or termination at such time or times and at such price or prices;
(iii) may be entitled to receive distributions (which may be cumulative or
noncumulative) at such rate or rates, on such conditions, and at such times,
and payable in preference to, or in such relation to, the distributions payable
on any other Class or Classes of Shares of the Trust; (iv) may have such rights
upon the termination of, or upon any distribution of the assets of, the Trust;
(v) may be made convertible into, or exchangeable for, Shares of any other
Class or Classes or of any other series of the same or any other Class or
Classes of Shares of the Trust at such price or prices or at such rates of
exchange and with such adjustments; and (vi) shall have such other relative,
participating, optional or other special rights, qualifications, limitations or
restrictions thereof, all as shall hereafter be stated and expressed in the
resolution or resolutions providing for the issue of such Preferred Shares from
time to time adopted by the Board of Trustees. Any of such matters may be made
dependent upon facts ascertainable outside this Declaration Trust, or outside
the resolution or resolutions providing for the issue of such Preferred
Shares.
Common Shares. Subject to the rights of the holders of the Preferred
Shares, in the event of the termination of the Trust the holders of the Common
Shares shall be entitled to receive pro rata the net distributable assets of
the Trust. Subject to the rights of the holders of the Preferred Shares,
distributions, when, as and if declared by the Trustees, shall be shared
equally by the holders of Common Shares on a share for share basis.
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SECTION 2. OWNERSHIP OF SHARES. The ownership of Shares shall be
recorded on the books of the Trust or a transfer or similar agent for the
Trust, which books shall be maintained separately for the Shares of each Class.
No certificates certifying the ownership of Shares shall be issued except as
the Board of Trustees may otherwise determine from time to time. The Trustees
may make such rules as they consider appropriate for the transfer of Shares of
each Class and similar matters. The record books of the Trust as kept by the
Trust or any transfer or similar agent, as they case may be, shall be
conclusive as to who are the Shareholders of each Class and as to the number of
Shares of each Class held from time to time by each.
SECTION 3. INVESTMENTS IN THE TRUST. Investments may be accepted by
the Trust from such Persons, at such times, on such terms, and for such
consideration as the Trustees from time to time may authorize. Each investment
shall be credited to the Shareholder's account in the form of full and
fractional Shares of the Trust, in such Class as the purchaser shall select, at
the net asset value per Share next determined for such Class after receipt of
the investment; provided, however, that the Trustees may, in their sole
discretion, impose a sales charge or transaction fee upon investments in the
Trust.
SECTION 4. STATUS OF SHARES AND LIMITATION OF PERSONAL LIABILITY.
Shares shall be deemed to be personal property giving only the rights provided
in this instrument. Every Shareholder by virtue of having become a Shareholder
shall be held to have expressly assented and agreed to the terms hereof and to
have become a party hereto. The death of a Shareholder during the existence of
the Trust shall not operate to terminate the Trust, 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 entitles
such authorized representative only to the rights of said deceased Shareholder
under this Declaration of Trust. Ownership of Shares shall not entitle the
Shareholder to any title in or to the whole or in 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 as partners.
Shareholders shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. Neither the Trust nor the
Trustees, nor any officer, employee or agent of the Trust shall have any power
to bind personally any Shareholder, nor, except as specifically provided
herein, to call upon any Shareholder for the payment of any sum of money or
assessment whatsoever other than such as the Shareholder may at any time
personally agree to pay.
SECTION 5. POWER OF BOARD OF TRUSTEES TO CHANGE PROVISIONS RELATING
TO SHARES. Notwithstanding any other provision of this Declaration of Trust to
the contrary and without limiting the power of the Board of Trustees to amend
this Declaration of Trust, the Board of Trustees shall have the power to amend
this Declaration of Trust and the Certificate of Trust, at any time and from
time to time, in such manner as the Board of Trustees may determine in its sole
discretion, without the need for Shareholder action, so as to add to, delete,
replace or otherwise modify any provision relating to the Shares contained in
this Declaration of Trust; provided that before adopting any such amendment
without Shareholder approval, the Board of Trustees shall determine that it is
consistent with the fair and equitable treatment of all Shareholders and that
Shareholder approval is not otherwise required by the 1940 Act, including
Section 18, or other applicable law; provided, however that if Shares have been
issued, Shareholder approval shall be required to adopt any amendment to this
Declaration of Trust that would adversely affect to a material degree the
rights and preferences of the Shares of the Trust already issued or the rights
and preferences of any Class of Shareholders or as otherwise required by the
1940 Act.
Notwithstanding the foregoing paragraphs, the Board of Trustees shall
have the power, in its discretion, to make such elections as to the tax status
of the Trust as may be permitted or required under
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the Internal Revenue Code as currently in effect or as amended, without the
vote of any Shareholder, including an election to be taxable as a corporation
for federal tax purposes and/or to make an election to be taxable as a
regulated investment company ("RIC") under Subchapter M of the Internal Revenue
Code.
SECTION 6. ESTABLISHMENT AND DESIGNATION OF CLASSES. Unless another
time is specified by the Trustees, the establishment and designation of any
Class shall be effective upon the adoption by a majority of the Trustees of a
resolution setting forth such establishment and designation and the
preferences, powers, rights and privileges of the Shares of such 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 Class,
including, without limitation, any registration statement of the Trust, or as
otherwise provided in such resolution. Each such resolution shall be
incorporated herein by reference upon adoption.
Shares of each Class established pursuant to this Section 6, unless
otherwise provided in the resolution establishing such Class, shall have the
following relative rights and preferences:
(a) ASSETS HELD WITH RESPECT TO A PARTICULAR CLASS. Separate and
distinct records shall be maintained by the Trust for each Class. All
consideration received by the Trust for the issue or sale of Shares of a
particular Class, 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 in such separate and
distinct records (directly or indirectly, including through a nominee or
otherwise) and accounted for in such separate and distinct records separately
from the other assets of the Trust and may be referred to herein as "assets
belonging to" that Class. If the Trust establishes more than one Class of
Shares, the assets belonging to the Trust shall be allocated to each Class in
the proportion that the assets belonging to the Class bears to the assets of
all Classes within the Trust. Each such allocation shall be conclusive and
binding upon the Shareholders of all 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 Class, as the case may be. The assets
belonging to a particular 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 Class.
(b) LIABILITIES HELD WITH RESPECT TO A PARTICULAR CLASS. Except as
provided in the next two sentences or otherwise required or permitted by
applicable law or any rule or order of the Commission, the liabilities,
expenses, costs, charges and reserves of the Trust shall be allocated to each
Class in the proportion that the assets belonging to such Class bear to the
assets belonging to all Classes of the Trust. To the extent permitted by rule
or order of the Commission, the Trustees may allocate all or a portion of any
liabilities, expenses, costs, charges and reserves belonging to the Trust to a
particular Class or Classes 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. If,
notwithstanding the provisions of this Section, any liability properly charged
to a Class is paid from the assets of another Class, the Class from whose
assets the liability was paid shall be reimbursed from the assets of the Class
to which such liability belonged.
(c) VOTING. All Shares of the Trust entitled to vote on a matter
shall vote separately by Class. There are, however, three exceptions to voting
by separate Classes. First, if the 1940 Act requires all Shares of the Trust to
be voted in the aggregate without differentiation between the separate Classes,
then all the Trust's Shares shall be entitled to vote on a one-vote-per-Share
basis. Second, if any matter affects only the interests of some but not all
Classes, then, to the extent Shareholders have the right to vote on such
matter, only the Shareholders of such affected Classes shall be entitled to
vote on the matter. Third, in the event the holders of Common Shares or the
holders of Preferred Shares, as the case may be,
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are required by law or by any other provision of this Declaration of Trust to
approve an action by a class vote of such holders, then only holders of such
Common Shares or Preferred Shares, as applicable, shall be entitled to vote on
the matter.
(d) EQUALITY. Except as may be otherwise provided in this Declaration
of Trust or in the resolutions adopted by the Board of Trustees in the
establishment of such Shares, all the Shares of a particular Class shall
represent an equal proportionate interest in the assets held by the Trust
(subject to the liabilities held with respect to that Class and the Trust and
such rights and preferences as may have been established and designated with
respect to such Class), and each Share of any particular Class shall be equal
to each other Share of that Class.
(e) FRACTIONAL SHARES. Any fractional Share shall carry
proportionately all the rights and obligations of a whole Share, including
rights with respect to voting, receipt of dividends and distributions,
redemption of Shares and termination of the Trust.
(f) EXCHANGE PRIVILEGE. The Trustees shall have the authority to
provide from time to time that the holders of Shares of any Class shall have
the right to convert or exchange said Shares for or into Shares of one or more
other Classes in accordance with such requirements and procedures as may be
established by the Trustees from time to time and, when applicable, in
accordance with the 1940 Act.
(g) COMBINATION OF, AND ELIMINATION OF, A CLASS. The Board of
Trustees shall have the authority, without the approval of the Shareholders of
any Class unless otherwise required by applicable law, to combine the assets
and liabilities held with respect to any two or more Classes into assets and
liabilities held with respect to a single Class; provided that upon completion
of such combination of Classes, the proportionate interest of each Shareholder
of each Class that is combined, in the assets and liabilities held with respect
to the combined Class shall equal the proportionate interest that each such
Shareholder held in the assets and liabilities held with respect to the
particular Class that was combined.
The Board of Trustees shall have the authority, without the approval
of Shareholders of any Class, unless otherwise required by applicable law, to
adopt a resolution terminating any such Class and rescinding the establishment
and designation thereof. Each such resolution shall constitute a part of this
Declaration of Trust upon adoption.
(h) DERIVATIVE ACTIONS.
(1) No person, other than a Trustee, who is not a
Shareholder shall be entitled to bring any derivative action, suit or other
proceeding on behalf of the Trust. No Shareholder may maintain a derivative
action on behalf of the Trust with respect to such Class unless holders of a
least ten percent (10%) of the outstanding Shares join in the bringing of such
action.
(2) In addition to the requirements set forth in Section
3816 of the Delaware Act, a Shareholder may bring a derivative action on behalf
of the Trust only if the following conditions are met: (i) 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
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Trust; and (ii) unless a demand is not required under clause (i) 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 advisors in
considering the merits of the request and may require an undertaking by the
Shareholders making such request to reimburse the Trust for the expense of any
such advisors in the event that the Trustees determine not to bring such
action. For purposes of this section, the Trustees may designate a committee of
two or more Trustees 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.
ARTICLE IV
THE BOARD OF TRUSTEES
SECTION 1. NUMBER, ELECTION AND TENURE. Prior to a public offering of
Shares, there may be a sole Trustee. For the avoidance of doubt, such sole
Trustee shall constitute the initial Board of Trustees of the Trust and may
exercise all powers and authority granted to a Trustee and the Board of
Trustees hereunder. Thereafter, the number of Trustees constituting the Board
of Trustees shall be fixed from time to time by a written instrument signed, or
by resolution approved at a duly constituted meeting, by a majority of the
Board of Trustees, provided, however, that the number of Trustees shall in no
event be less than one (1) nor more than fifteen (15). Subject to the
requirements of Section 16(a) of the 1940 Act, the Board of Trustees, by action
of a majority of the then acting Trustees at a duly constituted meeting, may
fill vacancies in the Board of Trustees or remove Trustees with or without
cause. The Trustees may appoint a new Trustee as provided above in anticipation
of a vacancy expected to occur because of the retirement, resignation or
removal of a Trustee, or an increase in number of Trustees, provided that such
appointment shall become effective only when or after the expected vacancy
occurs.
Each Trustee shall serve during the continued lifetime of the Trust
until he dies, resigns, is declared bankrupt or incompetent by a court of
appropriate jurisdiction or is removed, or, if sooner, until the next meeting
of Shareholders called for the purpose of electing Trustees and until the
election and qualification of his successor. Any Trustee may resign at any time
by written instrument signed by him and delivered to any officer of the Trust
or to a meeting of the Trustees. Such resignation shall be effective upon
receipt unless specified to be effective at some later time. Except to the
extent expressly provided in a written agreement with the Trust, no Trustee
resigning and no Trustee removed shall have any right to any compensation for
any period following his resignation or removal, or any right to damages on
account of such removal. Any Trustee may be removed (i) by a written instrument
signed or adopted by a majority of the remaining Trustees or (ii) at any
meeting of Shareholders by a vote of two-thirds of the outstanding Shares of
the Trust. A meeting of Shareholders for the purpose of electing or removing
one or more Trustees may be called (i) by the Trustees upon their own vote, or
(ii) upon the demand of Shareholders owning 10% or more of the Shares of the
Trust in the aggregate as provided in Section 16(c) of the 1940 Act.
SECTION 2. EFFECT OF DEATH, RESIGNATION, ETC. OF A TRUSTEE. The
death, declination, resignation, retirement, removal or incapacity of one or
more Trustees, or all of them, shall not operate to annul the Trust or to
revoke any existing agency created pursuant to the terms of this Declaration of
Trust. Whenever a vacancy in the Board of Trustees shall occur, until such
vacancy is filled as provided in Article IV, Section 1, the Trustees in office,
regardless of their number, shall have all the powers granted to the Trustees
and shall discharge all the duties imposed upon the Trustees by the Declaration
of Trust. As conclusive evidence of such vacancy, a written instrument
certifying the existence of such vacancy may be executed by an officer of the
Trust or by a majority of the Board of Trustees. In the event of the death,
declination, resignation, retirement, removal or incapacity of all the then
Trustees within a short period of time and without the opportunity for at least
one Trustee being able to appoint
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additional Trustees to fill vacancies, the Trust's officers are empowered to
appoint new Trustees subject to the provisions of Section 16(a) of the 1940
Act.
SECTION 3. POWERS. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Board of Trustees, and
such Board shall have all powers necessary or convenient to carry out that
responsibility. 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 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 without recourse to any court or other
authority, and in the exercise of that authority, shall not in any way be bound
or limited by present or future laws or customs in regard to trust investments.
Without limiting the foregoing, the Trustees have the power and authority:
(a) To invest and reinvest cash, to hold cash uninvested, and to
subscribe for, invest in, reinvest in, purchase or otherwise acquire, own,
hold, pledge, sell, assign, transfer, exchange, distribute, write options on,
lend or otherwise deal in or dispose of contracts for the future acquisition or
delivery of fixed income or other securities or other property, and securities
or other property of every nature and kind, including, without limitation, all
types of bonds, debentures, stocks, negotiable or non-negotiable instruments,
obligations, evidences of indebtedness, certificates of deposit or
indebtedness, commercial paper, repurchase agreements, bankers' acceptances,
and other securities of any kind, whether directly or acquired through a
participation, issued, created, guaranteed, or sponsored by any and all
Persons, including, without limitation, states, territories, and possessions of
the United States and District of Columbia and any political subdivision,
agency or instrumentality thereof, any foreign government or any political
subdivision of the U.S. government or any foreign government, or any
international instrumentality, or by any bank or savings institution, or by any
corporation or organization organized under the laws of the United States or of
any state, territory or possession thereof, or by any corporation or
organization organized under any foreign law, or in "when issued" contracts for
any such securities, to change the investments of the assets of the Trust; and
to exercise any and all rights, powers, and privileges of ownership or interest
in respect of any and all such investments of every kind and description,
including, without limitation, the right to consent and otherwise act with
respect thereto, with power to designate one or more Persons, to exercise any
of said rights, powers, and privileges in respect of any of said instruments;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate, lease or
write options with respect to or otherwise deal in any property rights relating
to any or all of the assets of the Trust;
(c) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property, and to execute and deliver
proxies or powers of attorney to such person or persons as the Trustees shall
deem proper, granting to such person or persons such power and discretion with
relation to securities or property as the Trustees shall deem proper;
(d) To exercise powers and rights of subscription or otherwise which
in any manner arise out of ownership of securities;
(e) To hold any security or property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form, or in its own
name or in the name of a custodian or sub-custodian or a nominee or nominees or
otherwise;
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(f) To adopt Bylaws not inconsistent with this Declaration of Trust
providing for the regulation and management of the affairs of the Trust and to
amend and repeal them to the extent that such Bylaws do not reserve that right
to the Shareholders;
(g) To elect and remove, with or without cause, such officers and
appoint and terminate such agents as they consider appropriate;
(h) To establish and terminate one or more committees, which shall
consist of two or more Trustees appointed by the Board of Trustees and which
may exercise the powers and authority of the Board of Trustees to the extent
that the Trustees determine;
(i) To employ one or more banks, trust companies or companies that
are members of a national securities exchange or such other entities as the
Commission may permit as custodians of any assets of the Trust;
(j) To retain one or more transfer agents or Shareholder servicing
agents, or both;
(k) To retain one or more loan servicing agents;
(l) To retain one or more fund administrators;
(m) To retain one or more auditors;
(n) To enter into service contracts as described in Article IV,
Section 7, below;
(o) To provide for the issuance and distribution of Shares by the
Trust directly or through one or more Principal Underwriters or otherwise;
(p) To redeem, repurchase and transfer Shares pursuant to the terms of
this Declaration of Trust;
(q) To set record dates for the determination of Shareholders with
respect to various matters;
(r) To declare and pay dividends and distributions to Shareholders
from the assets of the Trust;
(s) To establish from time to time, in accordance with the provisions
of Article III, Section 6 hereof, any Class of Shares;
(t) To delegate such authority as they consider desirable to any
officer of the Trust, to any committee of the Trustees, to any agent or
employee of the Trust or to any Investment Manager, Administrator, custodian,
transfer or Shareholder servicing agent or Principal Underwriter of the Trust,
and to any other agent, employee or independent contractor of the Trust;
(u) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security which is
held in the Trust;
(v) To consent to any contract, lease, mortgage, purchase or sale of
property by such corporation or issuer; and to pay calls or subscriptions with
respect to any security held in the Trust;
9
(w) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that connection to
deposit any security with, or transfer any security to, any such committee,
depositary or trustee, and to delegate to them such power and authority with
relation to any security (whether or not so deposited or transferred) as the
Trustees shall deem proper, and to agree to pay, and to pay, such portion of
the expenses and compensation of such committee, depositary or trustee as the
Trustees shall deem proper;
(x) To litigate, compromise, arbitrate, settle or otherwise adjust
claims in favor of or against the Trust, or any matter in controversy,
including but not limited to claims for taxes;
(y) To enter into joint ventures, general or limited partnerships and
any other combination or associations;
(z) To borrow funds or other property in the name of the Trust
exclusively for Trust purposes;
(aa) To endorse or guarantee the payment of any notes or other
obligations of any Person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof;
(bb) To purchase and pay for entirely out of Trust Property such
insurance as the Trustees may deem necessary or appropriate for the conduct of
the business, including, without limitation, insurance policies insuring the
assets of the Trust or payment of distributions and principal on its portfolio
investments, and insurance policies insuring the Shareholders, Trustees,
officers, employees, agents, Investment Managers, Principal Underwriters, or
independent contractors of the Trust, individually against all claims and
liabilities of every nature arising by reason of holding Shares, 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 as Trustee, officer, employee,
agent, investment manager, principal underwriter or independent contractor,
including any action taken or omitted that may be determined to constitute
negligence, whether or not the Trust would have the power to indemnify such
Person against liability;
(cc) 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;
(dd) Notwithstanding anything herein to the contrary, to issue and
sell any class of senior security (as such term is defined in Section 18 of the
0000 Xxx) to the extent permitted under the 1940 Act, the rules and regulations
thereunder or any exemption therefrom, as such statute, rules or regulations
may be amended or interpreted from time to time; and
(ee) 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 hereinbefore set forth, either alone or in association
with others, and to do every other act or thing incidental or appurtenant to or
growing out of or connected with the aforesaid business or purposes, objects or
powers.
The foregoing clauses shall each be construed as purposes, objects
and powers, and it is hereby expressly provided that the foregoing enumeration
of specific purposes, objects and powers shall not be held to limit or restrict
in any manner the powers of the Trust, and that they are in furtherance of, and
in addition to, and not in limitation of, the general powers conferred upon the
Trust by the 1940 Act,
10
Delaware Act and the other laws of the State of Delaware or otherwise; nor
shall the enumeration of one thing be deemed to exclude another, although it be
of like nature, not expressed.
Any determination as to what is in the interests of the Trust made by
the Trustees in good faith shall be conclusive. In construing the provisions of
this Declaration of Trust, the presumption shall be in favor of a grant of
power to the Trustees. Unless otherwise specified or required by the 1940 Act,
any action by the Board of Trustees shall be deemed effective if approved or
taken by a majority of the Trustees then in office.
Any action required or permitted to be taken at any meeting of the
Board of Trustees, or any committee thereof, may be taken without a meeting if
a majority of the members of the Board of Trustees or committee (as the case
may be) consent thereto in writing or electronically, and the consents are
filed with the minutes of the proceedings of the Board of Trustees, or
committee, except as otherwise provided in the 0000 Xxx.
The Trust shall not be limited to investing in obligations maturing
before the possible termination of the Trust. The Trust shall not in any way be
bound or limited by any present or future law or custom in regard to investment
by fiduciaries. The Trust shall not be required to obtain any court order to
deal with any assets of the Trust or take any other action hereunder.
SECTION 4. PAYMENT OF EXPENSES BY THE TRUST. The Trustees are
authorized to pay or cause to be paid out of the principal or income of the
Trust or the appropriate Class, or partly out of the principal and partly out
of income, as they deem fair, all expenses, fees, charges, taxes and
liabilities incurred or arising in connection with the Trust or Class, or in
connection with the management thereof, including, but not limited to, the
Trustees' compensation and such expenses and charges for the services of the
Trust's officers, employees, Investment Managers, Administrators, Principal
Underwriters, auditors, counsel, custodian, transfer agent, loan servicing
agent, Shareholder servicing agent, and such other agents or independent
contractors and such other expenses and charges as the Trustees may deem
necessary or proper to incur.
SECTION 5. PAYMENT OF EXPENSES BY SHAREHOLDERS. The Trustees shall
have the power, as frequently as they may determine, to cause each Shareholder
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, and only by, setting off such charges due from such
Shareholder from declared but unpaid dividends owed such Shareholder and/or by
reducing the number of shares in the account of such Shareholder by that number
of full and/or fractional Shares which represents the outstanding amount of
such charges due from such Shareholder.
SECTION 6. OWNERSHIP OF ASSETS OF THE TRUST. Title to all of the
assets of the Trust shall at all times be considered as vested in the Trust,
except that the Trustees shall have power to cause legal title to any Trust
Property to be held by or in the name of one or more of the Trustees, or in the
name of the Trust, or in the name of any other Person as nominee, on such terms
as the Trustees may determine. The right, title and interest, if any, of the
Trustees in the Trust Property shall vest automatically in each Person who may
hereafter become a Trustee. Upon the resignation, removal or death of a Trustee
he shall automatically cease to have any right, title or interest in any of the
Trust Property, and the right, title and interest, if any, of such Trustee in
the Trust Property shall vest automatically in the remaining Trustees. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered. The Trustees may determine that the
Trust or the Trustees, acting for and on behalf of the Trust, shall be deemed
to hold beneficial ownership of any income earned on the securities owned by
the Trust, whether domestic or foreign.
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SECTION 7. SERVICE CONTRACTS.
(a) Subject to such requirements and restrictions as may be set forth
in the Bylaws and the 1940 Act, the Trustees may, at any time and from time to
time, contract for exclusive or nonexclusive advisory, management, loan
servicing and/or administrative services for the Trust with any Persons; and
any such contract may contain such other terms as the Trustees may determine,
including without limitation, authority for the Investment Manager or
Administrator to determine from time to time without prior consultation with
the Trustees what portion, if any, of the assets of the Trust shall be held
uninvested and to make changes in the Trust's investments, or such other
activities as may specifically be delegated to such Person.
(b) The Trustees may also, at any time and from time to time,
contract with any Person(s), appointing such Person(s) exclusive or
nonexclusive distributor or Principal Underwriter for the Shares of the Trust
or other securities to be issued by the Trust. Every such contract shall comply
with such requirements and restrictions as may be set forth in the Bylaws and
the 1940 Act; and any such contract may contain such other terms as the
Trustees may determine.
(c) The Trustees are also empowered, at any time and from time to
time, to contract with any Person(s), appointing such Person(s) to serve as
custodian, transfer agent and/or Shareholder servicing agent for the Trust.
Every such contract shall comply with such requirements and restrictions as may
be set forth in the Bylaws, the 1940 Act, or stipulated by resolution of the
Trustees.
(d) The Trustees are further empowered, at any time and from time to
time, to contract with any Person(s) to provide such other services to the
Trust, as the Trustees determine to be in the best interests of the Trust.
(e) The fact that:
(1) any of the Shareholders, Trustees or officers of the
Trust is a shareholder, director, officer, partner, trustee, employee,
Investment Manager, Principal Underwriter, distributor or affiliate or agent of
or for any corporation, trust, association or other organization, or for any
parent or affiliate of any organization with which an advisory, management or
administration contract, or principal underwriter's or distributor's contract,
or transfer servicing, loan servicing, Shareholder servicing or other type of
service contract may have been or may hereafter be made, or that any such
organization, or any parent of affiliate thereof, is a Shareholder or has
interest in the Trust, or that
(2) any Person with which an advisory, management, or
administration contract or principal underwriter's or distributor's contract,
or transfer, Shareholder servicing or other type of service contract may have
been or may hereafter be made also has an advisory, management or
administration contract, or principal underwriter's or distributor's contract,
or transfer servicing, loan servicing, Shareholder servicing or other service
contract with one or more other corporations, trust, associations, or other
organization, or has other business or interests with any other Person, shall
not affect the validity of any such contract or disqualify any Shareholder,
Trustee or officer of the Trust from voting upon or executing the same, or
create any liability or accountability to the Trust or its Shareholders,
provided approval of each such contract is made pursuant to the requirements of
the 1940 Act.
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ARTICLE V
SHAREHOLDERS' VOTING POWERS AND MEETINGS
SECTION 1. VOTING POWERS. Subject to the provisions of Article III,
Sections 5 and 6(d) and in the resolutions adopted by the Board of Trustees in
the establishment of such Shares, the Shareholders shall have power to vote
only (i) for the election or removal of Trustees as provided in Article IV,
Section 1, and (ii) with respect to such additional matters relating to the
Trust as may be required by the Declaration of Trust, the Bylaws, the 1940 Act
or any registration of the Trust with the Commission (or any successor agency),
or as the Trustees may consider necessary or desirable. Except as may be
otherwise provided in this Declaration of Trust or in the resolutions adopted
by the Board of Trustees in the establishment of Shares, each whole Share shall
be entitled to one 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. A proxy with
respect to Shares held in the name of two or more persons shall be valid if
executed by any one of them unless at or prior to the exercise of the proxy the
Trust receives a specific written notice to the contrary from any one of them.
A proxy purporting to be executed by or on behalf of a Shareholder shall be
deemed valid unless challenged at or prior to its exercise and the burden of
proving invalidity shall rest on the challenger.
SECTION 2. VOTING POWER AND MEETINGS. Meetings of the Shareholders
may be called by the Trustees for the purposes of electing Trustees as provided
in Section 1 of this Article V and for such other purposes as may be prescribed
by law, by this Declaration of Trust or by the Bylaws. Meetings of the
Shareholders may also be called by the Trustees from time to time for the
purposes of taking action upon any other matter deemed by the Trustees to be
necessary or desirable. Meetings of the Shareholders shall be called by any
Trustee upon written request of Shareholders holding, in the aggregate, not
less than 20% of the Shares, such request specifying the purpose or purposes
for which such meeting is to be called, except that, the foregoing provision
notwithstanding, a special meeting of Shareholders shall be called upon written
request of Shareholders holding, in the aggregate, not less than 10% of the
Shares entitled to be cast for the purpose of consideration of the removal of a
Trustee from office as provided in Section 16(c) of the 1940 Act. A meeting of
Shareholders may be held at any place designated by the Trustees. Written
notice of any meeting of Shareholders shall be given or caused to be given by
the Trustees by mailing such notice not less than seven (7) nor more than
ninety (90) days before the date of such meeting, postage prepaid, stating the
time and place of the meeting, to each Shareholder at the Shareholder's address
as it appears on the records of the Trust. Whenever notice of a meeting is
required to be given to a Shareholder under this Declaration of Trust, a
written or electronic waiver thereof, executed before or after the meeting by
such Shareholder or his or her attorney thereunto authorized and filed with the
records of the meeting, or actual attendance at the meeting of Shareholders in
person or by proxy, shall be deemed equivalent to such notice.
SECTION 3. QUORUM AND REQUIRED VOTE. Except when a larger quorum is
required by the 1940 Act, by the Bylaws or by this Declaration of Trust,
one-third of the Shares entitled to vote in person or by proxy shall constitute
a quorum at a Shareholders' meeting. When any one or more Classes is to vote as
a single Class separate from any other Shares, one-third of the Shares of each
such Class entitled to vote in person or by proxy shall constitute a quorum at
a Shareholders' meeting of that Class except when a larger quorum is required
by the 1940 Act. Any meeting of Shareholders may be adjourned from time to time
by a majority of the votes properly cast upon the question of adjourning to a
meeting at another date and time, whether or not a quorum is present, and the
meeting may be held as adjourned within a reasonable time after the date set
forth for the original meeting without further notice. Subject to the
provisions of Article III, Section 6(d), when a quorum is present at any
meeting, a majority of the Shares voted in person or by proxy shall decide any
questions, except only a plurality shall be necessary
13
to elect a Trustee, except when a larger vote is required by any provision of
this Declaration of Trust or the Bylaws or by the 1940 Act.
SECTION 4. ACTION BY WRITTEN CONSENT. Any action taken by
Shareholders may be taken without a meeting and without prior notice if written
or electronic notice thereof and written or electronic consent to the action is
filed with the records of the meetings of Shareholders by the holders of the
number of votes that would be required to approve the matter as provided in
Article V, Section 3. Such consent shall be treated for all purposes as a vote
taken at a meeting of Shareholders.
SECTION 5. RECORD DATES. For the purposes of determining the
Shareholders of any Class who are entitled to vote or act at any meeting or any
adjournment thereof, the Trustees may from time to time fix a date, which shall
not be more than ninety (90) days nor less than seven (7) days before the date
of any meeting of Shareholders, as the record date for determining the
Shareholders of such Class having the right to notice of and to vote at such
meeting and any adjournment thereof, and in such case only Shareholders of
record on such record date shall have such right, notwithstanding any transfer
of shares on the books of the Trust after the record date. Nothing in this
Section 5 shall be construed as precluding the Trustees from setting different
record dates for different Classes.
ARTICLE VI
NET ASSET VALUE, DISTRIBUTIONS, AND REPURCHASES
SECTION 1. DETERMINATION OF NET ASSET VALUE, NET INCOME AND
DISTRIBUTIONS. Subject to Article III, Section 6 hereof, the Trustees, in their
absolute discretion, may prescribe and shall set forth in the Bylaws or in a
duly adopted resolution of the Trustees such bases and time for determining the
per Share net asset value of the Shares or net income attributable to Shares,
or the declaration and payment of dividends and distributions on the Shares, as
they may deem necessary or desirable.
SECTION 2. RECORD DATE FOR DIVIDENDS AND DISTRIBUTIONS. For the
purpose of determining the Shareholders of any Class who are entitled to
receive payment of any dividend or of any other distribution, the Trustees may
from time to time fix a date, which shall be before the date for the payment of
such dividend or such other payment, as the record date for determining the
Shareholders of such Class having the right to receive such dividend or
distribution. Without fixing a record date, the Trustees may for distribution
purposes close the register or transfer books for all or for any part of the
period between a record date and the payment of a dividend or distribution.
Nothing in this Section 2 shall be construed as precluding the Trustees from
setting different record dates for different Classes.
SECTION 3. REPURCHASES. Unless the Trustees otherwise determine with
respect to a particular Class at the time of establishing and designating the
same, each holder of Shares of a particular Class shall have the right at such
times as may be permitted by the Trustees to require the Trust to repurchase
(out of the assets belonging to the applicable Class) all or any part of his
Shares at the net asset value thereof as of the repurchase pricing date
established by the Trustees, less any repurchase fee established by the
Trustees in their discretion, and subject to such conditions as the Trustees
may determine, which may include establishing a maximum amount of Shares that
may be repurchased and prorating Shares tendered for repurchase if the
repurchase is oversubscribed. Payment for said Shares shall be made by the
Trust to the Shareholder within seven days after the repurchase pricing date
established by the Trustees. The repurchase price may in any case or cases be
paid in cash or wholly or partly in kind if the Trustees determine that such
payment is advisable in the interest of the remaining Shareholders. Subject to
the foregoing, the fair value, selection and quantity of securities or other
property so paid or delivered as all or part of the repurchase price shall be
determined by or under authority of the Trustees. In no case
14
shall the Trust be liable for any delay of any corporation or other Person in
transferring securities selected for delivery as all or part of any payment in
kind.
SECTION 4. REDEMPTIONS AT THE OPTION OF THE TRUST. The Trust shall
have the right at its option and at any time to redeem Shares of any
Shareholder at the net asset value thereof, unless otherwise permitted by the
1940 Act, as described in Section 1 of this Article VI for any reason under the
terms established by the Trustees from time to time including but not limited
to: (i) if at such time such Shareholder owns Shares having an aggregate net
asset value of less than an amount determined from time to time by the
Trustees; (ii) to the extent that such Shareholder owns Shares equal to or in
excess of a percentage of the outstanding Shares determined from time to time
by the Trustees; (iii) the failure of a Shareholder to supply a tax
identification number or other identification or if the Trust is unable to
verify a Shareholder's identity; (iv) the failure of a Shareholder to pay when
due the purchase price of Shares; (v) when the Trust is requested or compelled
to do so by governmental authority; or (vi) the determination by the Trustees
or pursuant to policies and procedures adopted by the Trustees that ownership
of Shares is not in the best interest of the remaining Shareholders of the
Trust or applicable Class.
SECTION 5. SUSPENSION OF THE RIGHT OF REPURCHASE. The Trustees may
declare a suspension of the right of repurchase or postpone the date of payment
as permitted under the 1940 Act. Such suspension shall take effect at such time
as the Trustees shall specify and thereafter there shall be no right of
repurchase or payment until the Trustees shall declare the suspension at an
end. In the event that the Trust is divided into Classes, the provisions of
this Section 5, to the extent applicable as determined in the discretion of the
Trustees and consistent with the 1940 Act, may be equally applied to each such
Class.
SECTION 6. REDEMPTION OF SHARES TO QUALIFY AS REGULATED INVESTMENT
COMPANY. If the Trustees shall, at any time and in good faith, be of the
opinion that direct or indirect ownership of Shares has or may become
concentrated in any Person to an extent that would disqualify the Trust as a
regulated investment company under the Internal Revenue Code, then the Trustees
shall have the power (but not the obligation) by lot or other means deemed
equitable by them (i) to call for redemption by any such Person of a number, or
principal amount, of Shares sufficient to maintain or bring the direct or
indirect ownership of Shares into conformity with the requirements for such
qualification and (ii) to refuse to transfer or issue Shares to any Person
whose acquisition of Shares in question would result in such disqualification.
The redemption shall be effected at the redemption price and in the manner
provided in this Article VI.
The holders of Shares shall upon demand disclose to the Trustees in
writing such information with respect to direct and indirect ownership of
Shares as the Trustees deem necessary to comply with the requirements of any
taxing authority.
ARTICLE VII
COMPENSATION AND LIMITATION OF LIABILITY OF TRUSTEES
SECTION 1. COMPENSATION. The Trustees as such shall be entitled to
reasonable compensation from the Trust, and the Trustees may fix the amount of
such compensation from time to time. Nothing herein shall in any way prevent
the employment of any Trustee for advisory, management, legal, accounting,
investment banking or other services to the Trust and to be specially
compensated for such services by the Trust.
SECTION 2. INDEMNIFICATION AND LIMITATION OF LIABILITY. To the
fullest extent that limitations on the liability of the Trustees and officers
are permitted by the Delaware Act and the 1940 Act, the Trustees shall not be
responsible or liable in any event for any neglect or wrongdoing of any
officer,
15
agent, employee, Investment Manager or Principal Underwriter of the Trust, nor
shall any Trustee be responsible for the act or omission of any other Trustee,
and, subject to the provisions of the Bylaws, the Trust out of its assets may
indemnify and hold harmless each and every Trustee and officer of the Trust
from and against any and all claims, demands, costs, losses, expenses and
damages whatsoever arising out of or related to such Trustee's or officer's
performance of his or her duties as a Trustee or officer of the Trust; provided
that nothing herein contained shall indemnify, hold harmless or protect any
Trustee or officer from or against any liability to the Trust or any
Shareholder to which he or she would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his or her office.
All persons extending credit to, contracting with or having any claim
against the Trust or the Trustees shall look only to the assets of the Trust
for payment under such credit, contract or claim; and neither the Trustees nor
the Shareholders, nor any of the Trust's officers, employees or agents, whether
past, present or future, shall be personally liable therefor.
Every note, bond, contract, instrument, certificate or undertaking
and every other act or thing whatsoever issued, executed or done by or on
behalf of the Trust or the Trustees or any of them in connection with the Trust
shall be conclusively deemed to have been issued, executed or done only in or
with respect to their or his or her capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
SECTION 3. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR
SURETY. The exercise by the Trustees of their powers hereunder shall be binding
upon everyone interested in or dealing with the Trust. A Trustee shall be
liable to the Trust and to any Shareholder solely for his or her own willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of the office of Trustee, and shall not be liable for
errors of judgment or mistakes of fact or law. Each Trustee shall, in the
performance of his or her duties, powers and discretions hereunder, be fully
and completely justified and protected with regard to any act or any failure to
act resulting from reliance in good faith upon the books of account or other
records of the Trust, upon the advice of counsel, or upon reports made to the
Trust thereof by any of its officers or employees or by the Investment Manager,
the Administrator, the Principal Underwriter, transfer agent, custodian,
selected dealers, accountants, appraisers, loan servicing agents or other
experts or consultants selected with reasonable care by the Trustees, officers
or employees of the Trust, regardless of whether such counsel or expert may
also be a Trustee. The Trustees may take advice of counsel or other experts
with respect to the meaning and operation of this Declaration of Trust, and
shall be under no liability for any act or omission in accordance with such
advice and no inference concerning liability shall arise from any failure to
follow or solicit such advice. The Trustees shall not be required to give any
bond as such, nor any surety if a bond is required.
SECTION 4. INSURANCE. The Trustees shall be entitled and empowered to
the fullest extent permitted by law to purchase with Trust assets insurance for
liability and for all expenses reasonably incurred or paid or expected to be
paid by a Trustee or officer in connection with any claim, action, suit or
proceeding in which he or she becomes involved by virtue of his or her capacity
or former capacity with the Trust, with such coverage as determined to be
necessary by the Trustees, whether or not the Trust would have the power to
indemnify him or her against such liability under the provisions of this
Article VII.
SECTION 5. TRUSTEE QUALIFICATIONS AND EXPERIENCE. The appointment,
designation or identification (including in any proxy or registration statement
or other document) of a Trustee as chair of the Trustees, a member or chair of
a committee of the Trustees, an expert on any topic or in any area (including
an audit committee financial expert), or the lead independent Trustee or as
having experience,
16
attributes or skills in any area, or any other appointment, designation or
identification of a Trustee, shall not impose on that person any standard of
care or liability that is greater than that imposed on that person as a Trustee
in the absence of the appointment, designation or identification, and no
Trustee who has special attributes, skills, experience or expertise, or is
appointed, designated or identified as aforesaid, shall be held to a higher
standard of care by virtue thereof. In addition, no appointment, designation or
identification of a Trustee as aforesaid shall affect in any way that Trustee's
rights or entitlement to indemnification or advancement of expenses.
ARTICLE VIII
MISCELLANEOUS
SECTION 1. LIABILITY OF THIRD PERSONS DEALING WITH TRUSTEES. No
Person dealing with the Trustees shall be bound to make any inquiry concerning
the validity of any transaction made or to be made by the Trustees or to see to
the application of any payments made or property transferred to the Trust or
upon its order.
SECTION 2. DISSOLUTION AND TERMINATION OF TRUST OR CLASS OF SHARES.
(a) Unless terminated as provided herein, the Trust shall continue
without limitation of time. The Trust may be dissolved at any time by the
Trustees by written notice to the Shareholders. Any Class of Shares may be
terminated at any time by the Trustees by written notice to the Shareholders of
such Class. Any action to dissolve the Trust shall be deemed also to be an
action to dissolve each Class.
(b) Upon the requisite action by the Trustees to dissolve the Trust,
after paying or otherwise providing for all charges, taxes, expenses and
liabilities, whether due or accrued or anticipated, the Trust shall in
accordance with such procedures as the Trustees consider appropriate reduce the
remaining assets of the Trust to distributable form in cash or other
securities, or any combination thereof, and distribute the proceeds to the
Shareholders of the Trust ratably according to the number of Shares of the
Trust held by the Shareholders on the date of distribution unless otherwise
determined by the Trustees or otherwise provided by this Declaration of Trust.
Upon the requisite action by the Trustees to terminate any Class, the Trustees
may, to the extent they deem it appropriate, follow the procedures set forth in
this Section 2 with respect to such Class that are specified in connection with
the dissolution and winding up of the Trust. Alternatively, in connection with
the termination of any Class, the Trustees may treat such termination as a
redemption of the Shareholders of such Class effected pursuant to Section 4 of
Article VI of this Declaration of Trust provided that the costs relating to the
termination of such Class shall be included in the determination of the Net
Asset Value of the Shares of such Class for purposes of determining the
redemption price to be paid to the Shareholders of such Class (to the extent
not otherwise included in such determination).
(c) Following completion of winding up of the Trust's business, the
Trustees shall cause a certificate of cancellation of the Trust's Certificate
of Trust to be filed in accordance with the Delaware Act, which certificate of
cancellation may be signed by any one Trustee. Upon termination of the Trust,
the Trustees, subject to Section 3808 of the Delaware Act, shall be discharged
of any and all further liabilities and duties relating thereto or arising
therefrom, and the right, title and interest of all parties with respect to the
Trust shall be canceled and discharged.
SECTION 3. MERGER, CONSOLIDATION AND SALE OF ASSETS.
(a) Notwithstanding anything else herein, the Trustees may, without
Shareholder approval unless such approval is required by the 1940 Act, (i) cause
the Trust to convert into or merge, reorganize
17
or consolidate with or into one or more trusts, partnerships, limited liability
companies, associations, corporations or other business entities (or a series
of any of the foregoing to the extent permitted by law) (including trusts,
partnerships, limited liability companies, associations, corporations or other
business entities created by the Trustees to accomplish such conversion, merger
or consolidation) so long as the surviving or resulting entity is a closed-end
management investment company under the 1940 Act, or is a series thereof to the
extent permitted by law, and that, in the case of any trust, partnership,
limited liability company, association, corporation or other business entity
created by the Trustees to accomplish such conversion, merger or consolidation,
may succeed to or assume the Trust's registration under the 1940 Act and that,
in any case, is formed, organized or existing under the laws of the United
States or of a state, commonwealth, possession or territory of the United
States, (ii) cause the Shares to be exchanged under or pursuant to any state or
federal statute to the extent permitted by law, (iii) cause the Trust to
incorporate under the laws of a state, commonwealth, possession or territory of
the United States, (iv) sell or convey all or substantially all of the assets
of the Trust or Class of the Trust or to another trust, partnership, limited
liability company, association, corporation or other business entity (or a
series or class of any of the foregoing to the extent permitted by law)
(including a trust, partnership, limited liability company, association,
corporation or other business entity created by the Trustees to accomplish such
sale and conveyance), organized under the laws of the United States or of any
state, commonwealth, possession or territory of the United States so long as
such trust, partnership, limited liability company, association, corporation or
other business entity is a closed-end management investment company under the
1940 Act and, in the case of any trust, partnership, limited liability company,
association, corporation or other business entity created by the Trustees to
accomplish such sale and conveyance, may succeed to or assume the Trust's
registration under the 1940 Act, for adequate consideration as determined by
the Trustees, which consideration may include the assumption of all outstanding
obligations, taxes and other liabilities, accrued or contingent, of the Trust
or any affected Class, and which may include Shares of such other Class of the
Trust or shares of beneficial interest, stock or other ownership interest of
such trust, partnership, limited liability company, association, corporation or
other business entity (or series or class thereof) or (v) at any time sell or
convert into money all or any part of the assets of the Trust or any Class
thereof. Any agreement of merger, reorganization, consolidation, exchange or
conversion or certificate of merger, certificate of conversion or other
applicable certificate may be signed by a majority of the Trustees or an
authorized officer of the Trust and facsimile signatures conveyed by electronic
or telecommunication means shall be valid.
(b) Pursuant to and in accordance with the provisions of Section
3815(f) of the Delaware Act, and notwithstanding anything to the contrary
contained in this Declaration of Trust, an agreement of merger or consolidation
approved by the Trustees in accordance with this Section 3 may effect any
amendment to the Declaration of Trust or effect the adoption of a new trust
instrument of the Trust or change the name of the Trust if the Trust is the
surviving or resulting entity in the merger or consolidation.
(c) Notwithstanding anything else herein, the Trustees may, without
Shareholder approval unless such approval is required by the 1940 Act, create
one or more statutory or business trusts to which all or any part of the
assets, liabilities, profits or losses of the Trust or Class thereof may be
transferred and may provide for the conversion of Shares in the Trust or any
Class thereof into beneficial interests in any such newly created trust or
trusts or any series or classes thereof.
(d) Notwithstanding anything else herein, the Trustees may, without
Shareholder approval unless such approval is required by the 1940 Act, invest
all or a portion of the Trust Property, or dispose of all or a portion of the
Trust Property, and invest the proceeds of such disposition in interests issued
by one or more other investment companies registered under the 1940 Act. Any
such other investment company may (but need not) be a trust (formed under the
laws of the State of Delaware or any other state
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or jurisdiction) (or subtrust thereof) that is classified as a partnership for
federal income tax purposes. Notwithstanding anything else herein, the Trustees
may, without Shareholder approval unless such approval is required by the 1940
Act, cause the Trust to withdraw or redeem its Trust Property from a master
fund and cause the Trust to invest its Trust Property directly in securities
and other financial instruments or in another master fund.
SECTION 4. AMENDMENTS. This Declaration of Trust may be restated
and/or amended at any time by an instrument in writing signed, or by resolution
approved at a duly constituted meeting, by a majority of the Trustees then
holding office. Any such restatement and/or amendment hereto shall be effective
immediately upon execution and approval or adoption of such resolution(s),
subject to satisfaction of any additional requirements provided for in this
Declaration of Trust and by the 1940 Act. The Certificate of Trust of the Trust
may be restated and/or amended by a similar procedure, and any such restatement
and/or amendment shall be effective immediately upon filing with the Office of
the Secretary of State of the State of Delaware or upon such future date as may
be stated therein.
SECTION 5. FILING OF COPIES, REFERENCES, HEADINGS, ETC. The original
or a copy of this instrument and of each restatement and/or amendment hereto
shall be kept at the office of the Trust where it may be inspected by any
Shareholder. Anyone dealing with the Trust may rely on a certificate by an
officer of the Trust as to whether or not any such restatements and/or
amendments have been made and as to any matters in connection with the Trust
hereunder; and, with the same effect as if it were the original, may rely on a
copy certified by an officer of the Trust to be a copy of this instrument or of
any such restatements and/or amendments. In this instrument and in any such
restatements and/or amendment, references to this instrument and all
expressions like "herein", "hereof" and "hereunder" shall be deemed to refer to
this instrument as amended or affected by any such restatements and/or
amendment. Headings are placed herein for convenience of reference only and
shall not be taken as a part hereof or control or affect the meaning,
construction or effect of this instrument. Whenever the singular number is used
herein, the same shall include the plural; and the neuter, masculine and
feminine genders shall include each other, as applicable. This instrument may
be executed in any number of counterparts each of which shall be deemed an
original.
SECTION 6. APPLICABLE LAW. The trust set forth in this instrument is
made in the State of Delaware, and the Trust and this Declaration of Trust, and
the rights and obligations of the Trustees and Shareholders hereunder, are to
be governed by and construed and administered according to the Delaware Act and
the laws of said State; provided, however, that there shall not be applicable
to the Trust, the Trustees or this Declaration of Trust (a) the provisions of
Sections 3540 and 3561 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
Delaware 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
Declaration of Trust. 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 Delaware Act, and the
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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 7. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a) The provisions of the Declaration of Trust are severable, and if
the Trustees shall determine, with the advice of counsel, that any such
provision 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 the Declaration of Trust; provided however, that such
determination shall not affect any of the remaining provisions of the
Declaration of Trust or render invalid or improper any action taken or omitted
prior to such determination.
(b) If any provision of the Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
not in any manner affect such provision in any other jurisdiction or any other
provision of the Declaration of Trust in any jurisdiction.
SECTION 8. TRUST NOT A PARTNERSHIP. It is hereby expressly declared
that a trust and not a partnership is created hereby. No Trustee hereunder
shall have any power to bind personally either the Trust officers or any
Shareholder. All Persons extending credit to, contracting with or having any
claim against the Trust or the Trustees shall look only to the assets of the
Trust for payment under such credit, contract or claim; and neither the
Shareholders nor the Trustees, nor any of their agents, whether past, present
or future, shall be personally liable therefor. Nothing in this Declaration of
Trust shall protect a Trustee against any liability to which the Trustee would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of Trustee hereunder.
SECTION 9. FISCAL YEAR. The fiscal year of the Trust shall end on a
specified date as set forth in the Bylaws, provided, however, that the Trustees
may change the fiscal year of the Trust.
SECTION 10. DELIVERY BY ELECTRONIC TRANSMISSION OR OTHERWISE.
Notwithstanding any provision in this Declaration of Trust to the contrary, any
notice, proxy, vote, consent, instrument or writing of any kind referenced in,
or contemplated by, this Declaration of Trust or the Bylaws may, in the sole
discretion of the Trustees, be given, granted or otherwise delivered by
electronic transmission (within the meaning of the Delaware Act), including via
the Internet, or in any other manner permitted by applicable law.
SECTION 11. APPLICABILITY OF 1940 ACT AND REGISTRATION STATEMENT. The
Trustees acknowledge that this Declaration of Trust is not intended to, and
does not, set forth the substantive provisions contained in the 1940 Act and
the Trust's registration statement that affect numerous aspects of the conduct
of the Trust's business and of the rights, privileges and obligations of the
Shareholders. Each provision of this Declaration of Trust shall be subject to
and interpreted in a manner consistent with the applicable provisions of the
1940 Act and such registration statement.
SECTION 12. TRUSTEES MAY RESOLVE AMBIGUITIES. The Trustees may
construe any of the provisions of this Declaration of Trust insofar as the same
may appear to be ambiguous or inconsistent with any other provisions hereof,
and any such construction hereof by the Trustees in good faith shall be
conclusive as to the meaning to be given to such provisions.
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SECTION 13. USE OF THE NAME "XXXXXX". The name "Xxxxxx" and all
rights to the use of the name "Xxxxxx" belong to Xxxxxx Capital US LLC and its
affiliates (together, "Xxxxxx Capital"). Xxxxxx Capital has consented to the
use by the Trust of the identifying word "Xxxxxx" and has granted to the Trust
a non-exclusive license to use the name "Xxxxxx" as part of the name of the
Trust and the name of any Class of Shares. In the event that Xxxxxx Capital or
one of its affiliates is not appointed as Investment Manager or ceases to be
the Investment Manager of the Trust, the non-exclusive license granted herein
may be revoked by Xxxxxx Capital and the Trust shall cease using the name
"Xxxxxx" as part of its name or the name of any Class of Shares, unless
otherwise consented to by Xxxxxx Capital or any successor to its interests in
such name.
IN WITNESS WHEREOF, the Trustee named below does hereby make and
enter into this Declaration of Trust as of the 2nd day of December, 2014.
/s/ Xxxxxxx Xxxxxxx
-----------------------------
Xxxxxxx Xxxxxxx, Sole Trustee
THE PRINCIPAL PLACE OF BUSINESS OF THE TRUST IS
Xxxxxx Diversified Opportunities Fund
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, Xxxxxxxxxxxx 00000
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