AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
▇▇▇▇▇▇▇ RELATIONSHIP FUNDS
a Delaware Business Trust
August 15, 1994,
as amended on
May 20, 1996
TABLE OF CONTENTS
Section Page
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ARTICLE I
The Trust
1.1 Name . . . . . . . . . . . . . . . . . . 1
1.2 Definitions . . . . . . . . . . . . . . . . . 1
1.3 Trust Purpose . . . . . . . . . . . . . . . . 4
ARTICLE II
Trustees
2.1 Number and Qualification . . . . . . . . . . . . 4
2.2 Term and Election . . . . . . . . . . . . . . 5
2.3 Resignation and Removal . . . . . . . . . . . . . 5
2.4 Vacancies . . . . . . . . . . . . . . . . . 6
2.5 Meetings . . . . . . . . . . . . . . . . . . 6
2.6 Officers; Chairman and the Board . . . . . . . . . . 7
2.7 By-Laws . . . . . . . . . . . . . . . . . . 7
ARTICLE III
Powers of Trustees
3.1 General . . . . . . . . . . . . . . . . . . 8
3.2 Investments . . . . . . . . . . . . . . . . . 8
3.3 Legal Title . . . . . . . . . . . . . . . . . 10
3.4 Sale of Units . . . . . . . . . . . . . . . . . 10
3.5 Delegation . . . . . . . . . . . . . . . . . 10
3.6 Collection and Payment . . . . . . . . . . . . . . 10
3.7 Expenses . . . . . . . . . . . . . . . . . 10
3.8 Miscellaneous Powers . . . . . . . . . . . . . 11
3.9 Further Powers . . . . . . . . . . . . . . . . 11
ARTICLE IV
Investment Advisory and Administrative Services
and Placement Agent Arrangements
4.1 Investment Advisory and Other Arrangments . . . . . . . 12
4.2 Parties to Contract . . . . . . . . . . . . . . 12
4.3 Compliance with 1940 Act . . . . . . . . . . . . . 13
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Section Page
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ARTICLE V
Limitations of Liability
5.1 No Personal Liability of Trustees, Officers, Employees,
Agents . . . . . . . . 13
5.2 Indemnification of Trustees, Officers, Employees, Agents
and Others . . . . . . . . . . 13
5.3 Limitation of Liability of Holders; Indemnification . . . . . 14
5.4 No Bond Required of Trustees . . . . . . . . . . . 14
5.5 No Duty of Investigation; Notice in Trust Instruments,
Etc. . . . . . . . . . 14
5.6 Reliance on Experts, Etc. . . . . . . . . . . . . 15
5.7 Assent to Liability . . . . . . . . . . . . . 15
ARTICLE VI
Units in the Trust
6.1 Units . . . . . . . . . . . . . . . . . 16
6.2 Rights of Holders . . . . . . . . . . . . . . 16
6.3 Register of Units . . . . . . . . . . . . . . . 16
6.4 Non-Transferability . . . . . . . . . . . . . . 16
6.5 Notices . . . . . . . . . . . . . . . . . 16
6.6 No Preemptive Rights; Derivative Suits . . . . . . . . . 16
ARTICLE VII
Purchases, Decreases and Withdrawals
7.1 Purchases . . . . . . . . . . . . . . . . . . . 17
7.2 Decreases and Withdrawals . . . . . . . . . . . . . . 17
ARTICLE VIII
Determination of Book Capital Account
Balances, Net Income and Distributions
8.1 Book Capital Account Balances. . . . . . . . . . . 18
8.2 Distributions and Allocations to Holders . . . . . . . 18
8.3 Allocation of Certain Tax Items . . . . . . . . . . . 19
8.4 Power to Modify Foregoing Procedures . . . . . . . 19
8.5 Deficit Makeup Requirement . . . . . . . . . . . 19
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Section Page
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ARTICLE IX
Holders
9.1 Meetings of Holders . . . . . . . . . . . . . 20
9.2 Notice of Meetings . . . . . . . . . . . . . . 20
9.3 Record Date for Meetings . . . . . . . . . . . 21
9.4 Proxies, Etc. . . . . . . . . . . . . . . . . 21
9.5 Reports . . . . . . . . . . . . . . . . . 22
9.6 Inspection of Records . . . . . . . . . . . . 22
9.7 Voting Powers . . . . . . . . . . . . . 22
9.8 Series of the Trust . . . . . . . . . . . . . 22
9.9 Holder Action by Written Consent . . . . . . . . . . 25
9.10 Holder Communications . . . . . . . . . . . . . 25
ARTICLE X
Duration; Termination of Trust;
Amendment; Mergers; Etc.
10.1 Duration . . . . . . . . . . . . . . . . 26
10.2 Termination of Trust . . . . . . . . . . . . . 26
10.3 Termination Upon Certain Events . . . . . . . . . . 27
10.4 Amendment Procedure . . . . . . . . . . . . . 27
10.5 Merger, Consolidation and Sale of Assets . . . . . . . . 28
10.6 Incorporation . . . . . . . . . . . . . . . 29
ARTICLE XI
Miscellaneous
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11.1 Certificate of Designation; Agent for Service of Process . . 29
11.2 Governing Law . . . . . . . . . . . . . 30
11.3 Counterparts . . . . . . . . . . . . . . 30
11.4 Reliance by Third Parties . . . . . . . . . . 30
11.5 Provisions in Conflict with Law or Regulations . . . . . 31
11.6 Trust Only . . . . . . . . . . . . . 31
11.7 Tax Matters Partner . . . . . . . . . . . . 31
11.8 Withholding . . . . . . . . . . . . . . 32
11.9 Headings and Construction . . . . . . . . . 32
11.10 Use of the Name "▇▇▇▇▇▇▇" . . . . . . . . . . 32
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AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
▇▇▇▇▇▇▇ RELATIONSHIP FUNDS
WHEREAS, THIS AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST is
made and entered into as of the date set forth below by the Trustees named
hereunder for the purpose of forming a Delaware business trust in accordance
with the provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby direct that a Certificate of Trust be
filed with the Office of the Secretary of State of the State of Delaware and do
hereby declare that the Trustees 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 pro rata benefit of the holders of Units in this Trust.
ARTICLE I
The Trust
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1.1 Name. The name of the trust created hereby (the "Trust") shall be
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"▇▇▇▇▇▇▇ Relationship Funds" and so far as may be practicable the Trustees shall
conduct the Trust's activities, execute all documents and ▇▇▇ or be sued under
that name, which name (and the word "Trust" wherever hereinafter used) shall not
refer to the Trustees in their individual capacities or to the officers, agents,
employees or Holders of Units in the Trust. However, should the Trustees
determine that the use of the name of the Trust is not advisable, they may
select such other name for the Trust as they deem proper and the Trust may hold
its property and conduct its activities under such other name. Any name change
shall become effective upon the execution by a majority of the then Trustees of
an instrument setting forth the new name and the filing of a certificate of
amendment pursuant to Section 3810 (b) of the DBTA. Any such instrument shall
not require the approval of the Holders of Units in the Trust, but shall have
the status of an amendment to the Certificate of Trust.
1.2 Definitions. As used in this Declaration, the following terms shall
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have the following meanings:
(a) "1940 Act" shall mean the Investment Company Act of 1940, as
--------
amended from time to time, and the rules and regulations thereunder, as
adopted or amended from time to time.
(b) "Affiliated Person", "Assignment" and "Interested Person" shall
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have the meanings given them in the 1940 Act.
(c) "Administrator" shall mean any party furnishing services to the
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Trust pursuant to any administrative services contract described in Section
4.1 hereof.
(d) "Book Capital Account" shall mean, for any Holder at any time, the
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book capital account of the Holder at such time, determined in accordance
with generally accepted accounting principles, and pursuant to Article VIII
of this Declaration, and based upon the net asset value of the Trust
Property determined in accordance with applicable provisions of the 1940
Act and the Code. The net asset value of a Holder's Book Capital Account
shall be determined in accordance with Treasury Regulation Section 1.704-1
(b) (2) (iv) under the Code.
(e) "By-Laws" shall mean the By-Laws of the Trust as amended from time
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to time.
(f) "Certificate of Trust" shall mean the certificate of trust filed
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on behalf of the Trust with the Office of the Secretary of the State of
Delaware.
(g) "Code" shall mean the Internal Revenue Code of 1986, as amended
----
from time to time, and the rules and regulations thereunder, as adopted or
amended from time to time.
(h) "Commission" shall mean the U.S. Securities and Exchange
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Commission.
(i) "Declaration" shall mean this Amended and Restated Agreement and
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Declaration of Trust as amended from time to time. References in this
Declaration to "Declaration," "hereof," "herein" and "hereunder" shall be
----------- ------ ------ ---------
deemed to refer to the Declaration rather than the article or section in
which such words appear. This Declaration shall, together with the By-
Laws, constitute the governing instrument of the Trust under the DBTA.
(j) "DBTA" shall mean the Delaware Business Trust Act, Delaware Code
----
Annotated Title 12, Sections 3801 et seg., as amended from time to time.
-- ---
(k) "Fiscal Year" shall mean an annual period as determined by the
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Trustees unless otherwise provided by the Code or applicable regulations.
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(l) "Holders" shall mean as of any particular time any or all holders
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of record of Units in the Trust or in Trust Property, as the case may be,
at such time.
(m) "Institutional Investor" shall mean any registered broker/dealer,
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regulated investment company, segregated asset account, foreign investment
company, common or commingled trust fund, group trust or similar
organization or entity that is an "accredited investor" within the meaning
of Regulation D under the Securities Act of 1933, as amended.
(n) "Investment Adviser" shall mean any party furnishing services to
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the Trust pursuant to any investment advisory contract described in Section
4.1 hereof.
(o) "Majority Units Vote" shall mean the vote, at a meeting of the
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Holders of Units, of the lesser of (A) 67% or more of the Units present or
represented at such meeting, provided the Holders of more than 50% of the
Units are present or represented by proxy or (B) more than 50% of the
Units.
(p) "Person" shall mean and include an individual, corporation,
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partnership, trust, association, joint venture and other entity, whether or
not a legal entity, and a government and agencies and political
subdivisions thereof.
(q) "Registration Statement" as of any particular time shall mean the
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Registration Statement of the Trust which is effective at such time under
the 1940 Act.
(r) "TMP" shall mean the Holder appointed by the Trustee to be the tax
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matters partner in accordance with Section 6231 (a) (7) of the Code.
(s) "Trust Property" shall mean as of any particular time any and all
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property, real or personal, tangible or intangible, which at such time is
owned or held by or for the account of the Trust or the Trustees. The
Trustees may authorize the division of Trust Property into two or more
series, in accordance with the provisions of Section 9.8 hereof, in which
case all references in this Declaration to the Trust, Trust Property, Units
therein or Holders thereof shall be deemed to refer to each such series, as
the case may be, except as the context otherwise requires. Any series of
Trust Property shall be established and designated, and the variations in
the relative rights and preferences as between the different series shall
be fixed and determined, by the Trustees.
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(t) "Trustees" shall mean such persons who are identified as trustees
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of the Trust on the signature page of this Declaration, so long as they
shall continue in office in accordance with the terms of this Declaration,
and all other persons who at the time in question have been duly elected or
appointed as trustees in accordance with the provisions of this Declaration
and are then in office, in their capacity as trustees hereunder.
(u) "Unit" shall mean the interest of a Holder in the Trust, including
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all rights, powers and privileges accorded to Holders in this Declaration,
which may be expressed as a percentage, determined by calculating, at such
times and on such basis as the Trustees shall from time to time determine,
the ratio of each Holders Book Capital Account balance to the total of all
Holders' Book Capital Account balances. Reference herein to a specified
percentage in, or fraction of, Units of the Holders, shall mean Holders
whose combined Book Capital Accounts represents such specified percentage
or fraction of the total of the Book Capital Accounts of all Holders.
1.3 Trust Purpose. The purpose of the Trust is to conduct, operate and
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carry on the business of an open-end management investment company registered
under the 1940 Act. In furtherance of the foregoing, it shall be the purpose of
the Trust to do everything necessary, suitable, convenient or proper for the
conduct, promotion and attainment of any businesses and purposes which at any
time may be incidental or may appear conducive or expedient for the
accomplishment of the business of an open-end management investment company
registered under the 1940 Act and which may be engaged in or carried on by a
trust organized under the DBTA, and in connection therewith the Trust shall have
and may exercise all of the powers conferred by the laws of the State of
Delaware upon a Delaware business trust.
ARTICLE II
Trustees
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2.1 Number and Qualification. The number of Trustees shall initially be
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five and shall thereafter be fixed from time to time by written instrument
signed by a majority of the Trustees so fixed then in office, provided, however,
that the number of Trustees shall in no event be less than one or greater than
twelve. A Trustee shall be an individual at least 21 years of age who is not
under legal disability.
(a) Any vacancy shall be filled in a manner consistent with the 1940
Act by the appointment by the remaining Trustees then in office or election
by the Holders
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of an individual having the qualifications described in this Article as
provided in Section 2.4 hereof. No reduction in the number of Trustees
shall have the effect of removing any Trustee from office.
(b) Whenever a vacancy in the number of Trustees shall occur, until
such vacancy is filled as provided in section 2.4 hereof, the Trustees in
office, regardless of their number, shall have all the powers granted to
the Trustees and shall discharge all the duties imposed upon the Trustees
by this Declaration.
2.2 Term and Election. Each Trustee named herein, or elected or appointed
-----------------
prior to the first meeting of the Holders, shall (except in the event of
resignations or removals or vacancies pursuant to Section 2.3 or 2.4 hereof)
hold office until his or her successor has been elected at such meeting and has
qualified to serve as a Trustee. Beginning with the Trustees elected at the
first meeting of Holders, each Trustee shall hold office during the lifetime of
this Trust and until its termination as hereinafter provided unless such Trustee
resigns or is removed as provided in Section 2.3 below.
2.3 Resignation and Removal. Any Trustee may resign (without need for
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prior or subsequent accounting) by an instrument in writing signed by him or her
and delivered or mailed to the Chairman, if any, the President or the Secretary
of the Trust and such resignation shall be effective upon such delivery, or at a
later date according to the terms of the instrument.
(a) Subject to the requirements of the 1940 Act, any of the Trustees
may be removed with or without cause by (i) a majority of the then Trustees
at a duly constituted meeting or (ii) the affirmative vote of the Holders
of not less than two-thirds (2/3) of the Units.
(b) Upon the resignation or removal of a Trustee, or his or her
otherwise ceasing to be a Trustee, he or she shall execute and deliver such
documents as the remaining Trustees shall require for the purpose of
conveying to the Trust or the remaining Trustees any Trust Property held in
the name of the resigning or removed Trustee. Upon the death of any
Trustee or upon removal or resignation due to any Trustee's incapacity to
serve as Trustee, his or her legal representative shall execute and deliver
on his or her behalf such documents as the remaining Trustees shall require
as provided in the preceding sentence.
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2.4 Vacancies. The term of office of a Trustee shall terminate and a
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vacancy shall occur in the event of the death, declination, resignation,
retirement, bankruptcy, adjudicated incompetence or other incapacity to perform
the duties of the office, or removal, of a Trustee. A vacancy shall also occur
in the event of an increase in the number of trustees as provided in Section
2.1. No such vacancy shall operate to annul this Declaration or to revoke any
existing trust created pursuant to the terms of this Declaration. In the case
of a vacancy, the Holders of at least a majority of the Units entitled to vote,
acting at any meeting of the Holders held in accordance with Section 9.1 hereof,
or, to the extent permitted by the 1940 Act, a majority vote of the Trustees
continuing in office acting by written instrument or instruments, may fill such
vacancy, and any Trustee so elected by the Trustees or the Holders shall hold
office as provided in this Declaration. There shall be no cumulative voting by
the Holders in the election of Trustees.
2.5 Meetings. Meetings of the Trustees shall be held from time to time
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within or without the State of Delaware upon the call of the Chairman, if any,
the President, the Secretary, an Assistant Secretary or any two Trustees.
(a) Regular meetings of the Trustees may be held without call or
notice at a time and place fixed by the By-Laws or by resolution of the
Trustees. Notice of any other meeting shall be given not later than 72
hours preceding the meeting by United States mail or by electronic
transmission to each Trustee at his business address as set forth in the
records of the Trust or otherwise given personally not less than 24 hours
before the meeting but may be waived in writing by any Trustee either
before or after such meeting. The attendance of a Trustee at a meeting
shall constitute a waiver of notice of such meeting except where a Trustee
attends a meeting for the express purpose of objecting to the transaction
of any business on the ground that the meeting has not been lawfully called
or convened.
(b) A quorum for all meetings of the Trustees shall be at least a
majority of the total number of Trustees, but (except at such time as there
is only one Trustee) no less than two Trustees. Unless provided otherwise
in this Declaration, any action of the Trustees may be taken at a meeting
within or without the State of Delaware by vote of a majority of the
Trustees present (a quorum being present) or without a meeting by written
consent of a majority of the Trustees, which written consent shall be filed
with the minutes of proceedings of the Trustees or any such committee. If
there be less than a quorum present at any meeting of the Trustees, a
majority of those present may adjourn the meeting until a quorum shall have
been obtained.
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(c) Any committee of the Trustees, including an executive committee,
if any, may act with or without a meeting. A quorum for all meetings of
any such committee shall be two or more of the members thereof, unless the
Trustees shall provide otherwise. Unless provided otherwise in this
Declaration, any action of any such committee may be taken at a meeting by
vote of a majority of the members present (a quorum being present) or
without a meeting by written consent of a majority of the members, which
written consent shall be filed with the minutes of proceedings of the
Trustees or any such committee.
(d) With respect to actions of the Trustees and any committee of the
Trustees, Trustees who are Interested Persons of the Trust or are otherwise
interested in any action to be taken may be counted for quorum purposes
under this Section 2.5 and shall be entitled to vote to the extent
permitted by the 1940 Act.
(e) All or any one or more Trustees may participate in a meeting of
the Trustees or any committee thereof by means of a conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a
meeting pursuant to such communications system shall constitute presence in
person at such meeting, unless the 1940 Act specifically requires the
Trustees to act "in person," in which case such term shall be construed
consistent with commission or staff releases or interpretations.
2.6 Officers; Chairman of the Board. The Trustees shall, from time to
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time, elect officers of the Trust including a President, a Secretary and a
Treasurer. The Trustees shall elect or appoint, from time to time, a Trustee to
act as Chairman of the Board who shall preside at all meetings of the Trustees
and carry out such other duties as the Trustees shall designate. The Trustees
may elect or appoint or authorize the President to appoint such other officers
or agents with such powers as the Trustees may deem to be advisable. The
President, Secretary and Treasurer may, but need not, be a Trustee. The
Chairman of the Board and such officers of the Trust shall serve in such
capacity for such time and with such duties, power and authority as the Trustees
may, in their discretion, so designate or as provided in the By-Laws.
2.7 By-Laws. The Trustees may adopt and, from time to time, amend or
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repeal the By-Laws for the conduct of the business of the Trust not inconsistent
with this Declaration.
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ARTICLE III
Powers of Trustees
------------------
3.1 General. The Trustees shall have exclusive and absolute control over
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the management of the business and affairs of the Trust, but with such powers of
delegation as may be permitted by this Declaration and the DBTA. The Trustees
may perform such acts as in their sole discretion are proper for conducting the
business and affairs of the Trust. The enumeration of any specific power herein
shall not be construed as limiting the aforesaid power. Such powers of the
Trustees may be exercised without order of or recourse to any court.
3.2 Investments. (a) The Trustees shall have power to:
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(i) operate as and carry on the business of an investment company, and
exercise all of the powers necessary or appropriate to the conduct of such
operations;
(ii) to invest in, hold for investment, or reinvest in, cash and cash
items, and securities, including but not limited to common and preferred
stocks; warrants; bonds, debentures, bills, time notes and all other
evidences of indebtedness; negotiable or non-negotiable instruments;
government securities, including securities of any state, municipality or
other political subdivision thereof, or any governmental or quasi-
governmental agency or instrumentality; and money market instruments
including bank certificates of deposit, finance paper, commercial paper,
bankers acceptances and all kinds of repurchase agreements, of any
corporation, company, trust, association, firm or other business
organization however established, and of any country, state, municipality
or other political subdivision, or any governmental or quasi-governmental
agency or instrumentality and in general, any interest or instrument
commonly known as a "security;"
(iii) to acquire (by purchase, subscription or otherwise), to hold,
to trade in and deal in, to acquire any rights or options to purchase or
sell, to sell or otherwise dispose of, to lend, to write (or sell) and
purchase put and call options on any such securities and to pledge any such
securities and repurchase agreements;
(iv) to exercise all rights, powers and privileges of ownership or
interest in all securities and repurchase agreements included in the Trust
Property, including
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the right to vote thereon and otherwise act with respect thereto and to do
all acts for the preservation, protection, improvement and enhancement in
value of all such securities and repurchase agreements;
(v) to acquire (by purchase, lease or otherwise) and to hold, use,
maintain, develop and dispose of (by sale or otherwise) any property, real
or personal, including futures contracts and options thereon, cash, and any
interest therein;
(vi) to borrow money or otherwise obtain credit 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 any
obligation, contract or engagement of any other Person and to lend Trust
Property;
(vii) to aid by further investment any corporation, company, trust,
association or firm, any obligation of or interest in which is included in
the Trust Property or in the affairs of which the Trustees have any direct
or indirect interest; to do all acts, and things designed to protect,
preserve, improve or enhance the value of such obligation or interest; to
guarantee or become surety on any or all of the contracts, stocks, bonds,
notes, debentures and other obligations of any such corporation, company,
trust, association or firm;
(viii) 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, and
to do every other act or thing incidental or appurtenant to or connected
with the aforesaid purposes, objects or powers; and
(ix) to cause the redemption of any Holder's units in the Trust if, in
their sole discretion, the Trustees determine such action to be in the best
interests of the Trust.
The foregoing clauses shall be construed both as objects and as 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.
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(b) The Trustees shall not be limited to investing in obligations
maturing before the possible termination of the Trust, nor shall the
Trustees be limited by any law limiting the investments which may be made
by fiduciaries.
3.3 Legal Title. Legal title to all the Trust Property shall be vested in
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the Trust as a separate legal entity under the DBTA, except that the Trustees
shall have the 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 any other Person on
behalf of the Trust on such terms as the Trustees may determine.
In the event that title to any part of the Trust Property is vested in one
or more Trustees, the right, title and interest of the Trustees in the Trust
Property shall vest automatically in each person who may hereafter become a
Trustee upon his or her due election and qualification. Upon the termination of
the term of office, resignation, removal or death of a Trustee he or she shall
automatically cease to have any right, title or interest in any of the Trust
Property, and the right, title and interest of such Trustee in the Trust
Property shall vest automatically in the remaining Trustees. To the extent
permitted by law, such vesting and cessation of title shall be effective whether
or not conveyancing documents have been executed and delivered.
3.4 Sale of Units. Subject to the more detailed provisions set forth in
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Articles VII and VIII, the Trustees shall have the power to permit persons to
purchase Units and to add or reduce, in whole or in part, their Units in the
Trust.
3.5 Delegation. The Trustees shall have the power, consistent with their
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continuing exclusive authority over the management of the Trust and the Trust
Property, to delegate from time to time to such of their number or to officers,
employees or agents of the Trust the doing of such things and the execution of
such instruments, either in the name of the Trust or the names of the Trustees
or otherwise, as the Trustees may deem expedient.
3.6 Collection and Payment. The Trustees shall have power to collect all
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property due to the Trust; to pay all claims, including taxes, against the Trust
Property; to prosecute, defend, compromise or abandon any claims relating to the
Trust Property; to foreclose any security interest securing any obligations, by
virtue of which any property is owed to the Trust; and to enter into releases,
agreements and other instruments.
3.7 Expenses. The Trustees shall have the power to incur and pay any
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expenses which in the opinion of the Trustees are necessary or incidental to
carry out any of the purposes of this Declaration, and to pay reasonable
compensation from the funds of the Trust to themselves as Trustees. The
Trustees may, in their discretion, establish the
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compensation of all officers, employees and Trustees. The Trustees may pay
themselves such compensation for special services, including legal and brokerage
services, as they in good faith may deem reasonable (subject to any limitations
of the 1940 Act), and reimbursement for expenses reasonably incurred by
themselves on behalf of the Trust.
3.8 Miscellaneous Powers. The Trustees shall have the power to: (a)
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employ or contract with such Persons as the Trustees may deem desirable for the
transaction of the business of the Trust and terminate such employees or
contractual relationships as they consider appropriate; (b) enter into joint
ventures, partnerships and any other combinations or associations; (c) purchase,
and pay for out of Trust Property, insurance policies (including, but not
limited to, fidelity bonding and errors and omission policies) insuring the
Investment Adviser, Administrator, placement agent, Holders, Trustees, officers,
employees, agents, or independent contractors of the Trust against all claims
arising by reason of holding any such position or by reason of any action taken
or omitted by any such person in such capacity, whether or not the Trust would
have the power to indemnify such Person against liability; (d) establish
pension, profit-sharing and other retirement, incentive and benefit plans for
any Trustees, officers, employees and agents of the Trust; (e) to the extent
permitted by law, indemnify any Person with whom the Trust has dealings,
including the Investment Adviser, Administrator, placement agent, Holders,
Trustees, officers, employees, agents or independent contractors of the Trust or
the TMP, to such extent as the Trustees shall determine; (f) guarantee
indebtedness or contractual obligations of others; (g) determine and change the
Fiscal Year of the Trust and the method by which its accounts shall be kept; and
(h) adopt a seal for the Trust, but the absence of such seal shall not impair
the validity of any instrument executed on behalf of the Trust.
3.9 Further Powers. 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, whether within or without the State of Delaware, in any and
all states of the United States of America, in the District of Columbia, in any
foreign countries, and in any commonwealths, territories, dependencies,
colonies, possessions, agencies or instrumentalities of the United States of
America and of foreign countries, 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 and shall be
binding upon the Trust and the Holders, past, present and
-11-
future. In construing the provisions of this Declaration, the presumption shall
be in favor of a grant of power to the Trustees. The Trustees shall not be
required to obtain any court order to deal with Trust Property.
ARTICLE IV
Investment Advisory and Administrative Services
and Placement Agent Arrangements
--------------------------------
4.1 Investment Advisory and Other Arrangements. The Trustees may in their
------------------------------------------
discretion, from time to time, enter into one or more contracts or agreements
for investment advisory services, administrative services (including transfer
and dividend disbursing agency services), distribution services, fiduciary
(including custodian) services, placement agent services, Holder servicing and
distribution services, or other services, whereby the other party to such
contract or agreement shall undertake to furnish the Trust such services as the
Trustees shall, from time to time, consider desirable and all upon such terms
and conditions as the Trustees may in their discretion determine.
Notwithstanding any other provisions of this Declaration to the contrary, 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, loans or exchanges of Trust Property on behalf of the Trustees
or may authorize any officer, employee or Trustee to effect such purchases,
sales, loans or exchanges pursuant to recommendations of any such Investment
Adviser (all without further action by the Trustees). Any such purchases,
sales, loans and exchanges shall be binding upon the Trust.
4.2 Parties to Contract. Any contract or agreement of the character
-------------------
described in Section 4.1 of this Article IV or in the By-Laws of the Trust may
be entered into with any Person, although one or more of the Trustees or
officers of the Trust or any Holder may be an officer, partner, director,
trustee, shareholder, or member of such other party to the contract or
agreement, and no such contract or agreement shall be invalidated or rendered
voidable by reason of the existence of any such relationship, nor shall any
person holding such relationship be liable merely by reason of such relationship
for any loss or expense to the Trust under or by reason of such contract or
agreement or accountable for any profit realized directly or indirectly
therefrom, provided that the contract or agreement when entered into was
reasonable and fair and not inconsistent with the provisions of this Article IV
or the By-Laws. Any Trustee or officer of the Trust or any Holder may be the
other party to contracts or agreements entered into pursuant to Section 4.1
hereof or the By-Laws of the Trust, and any Trustee or officer of the Trust or
any Holder may be financially interested
-12-
in or otherwise affiliated with Persons who are parties to any or all of the
contracts or agreements mentioned in this Section 4.2.
4.3 Compliance with 1940 Act. Any contract entered into pursuant to
------------------------
Sections 4.1 or 4.2 and which governs the provision of services as described in
section 15 of the 1940 Act shall be consistent with and subject to the
requirements of Section 15 of the 1940 Act (including any amendment thereof or
other applicable Act of Congress hereafter enacted) with respect to its
continuance in effect, its termination and the method of authorization and
approval of such contract or renewal thereof.
ARTICLE V
Limitations of Liability
------------------------
5.1 No Personal Liability of Trustees, Officers, Employees, Agents. No
--------------------------------------------------------------
Trustee, officer, employee or agent of the Trust when acting in such capacity
shall be subject to any personal liability whatsoever, in his or her individual
capacity, to any Person, other than the Trust or its Holders, in connection with
Trust Property or the affairs of the Trust; and all such Persons shall look
solely to the Trust Property for satisfaction of claims of any nature against a
Trustee, officer, employee or agent of the Trust arising in connection with the
affairs of the Trust. No Trustee, officer, employee or agent of the Trust shall
be liable to the Trust, Holders of Units therein, or to any Trustee, officer,
employee, or agent thereof for any action or failure to act (including, without
limitation, the failure to compel in any way any former or acting Trustee to
redress any breach of trust) except for his or her own bad faith, willful
misfeasance, gross negligence or reckless disregard of his or her duties.
5.2 Indemnification of Trustees, Officers, Employees, Agents and Others.
-------------------------------------------------------------------
The Trust shall indemnify each of its Trustees, officers, employees, and agents
(including Persons who serve at its request as directors, officers or trustees
of another organization in which it has any interest, as a shareholder, creditor
or otherwise) and the TMP against all liabilities and expenses (including
amounts paid in satisfaction of judgments, in compromise, as fines and
penalties, and as counsel fees) reasonably incurred by him, her or it in
connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, in which he, she or it may be involved or
with which he, she or it may be threatened, while in office or thereafter, by
reason of his, her or its being or having been such a Trustee, officer,
employee, agent or TMP, except with respect to any matter as to which he, she or
it shall have been adjudicated to have acted in bad faith, with willful
misfeasance, gross negligence or reckless disregard of his, her or its duties;
provided, however, that as to any matter disposed of by a compromise payment by
such Person, pursuant to a consent decree or otherwise, no indemnification
either for said payment or for any other expenses shall be provided unless there
has been a determination that such Person did not engage in conduct involving
willful misfeasance, bad faith, gross negligence
-13-
or reckless disregard of the duties involved in the conduct of his, her or its
office by the court or other body approving the settlement or other disposition
or by a reasonable determination, based upon review of readily available facts
(as opposed to a full trial-type inquiry), that he, she or it did not engage in
such conduct by written opinion from independent legal counsel approved by the
Trustees. The rights accruing to any Person under these provisions shall not
exclude any other right to which he or she may be lawfully entitled; provided
that no Person may satisfy any right of indemnity or reimbursement granted
herein or in Section 5.1 or to which he, she or it may be otherwise entitled
except out of the Trust Property. The Trustees may make advance payments in
connection with indemnification under this Section 5.2, provided that the
indemnified Person shall have given a written undertaking to reimburse the Trust
in the event it is subsequently determined that he, she or it is not entitled to
such indemnification.
5.3 Limitation of Liability of Holders; Indemnification. No Holder shall
---------------------------------------------------
be liable for any liabilities or obligations of the Trust. To the extent assets
are available in the Trust, the Trust shall indemnify and hold each Holder
harmless from and against any claim or liability to which such Holder may become
subject by reason of his or her being or having been a Holder and shall
reimburse such Holder for all legal and other expenses reasonably incurred by
him or her in connection with any such claim or liability; and provided,
further, that no Holder shall be entitled to indemnification by any series
established in accordance with Section 9.8 unless such Holder is a Holder of
Units of such series. The rights accruing to a Holder under this Section 5.3
shall not exclude any other right to which such Holder may be lawfully entitled,
nor shall anything herein contained restrict the right of the Trust to indemnify
or reimburse a Holder in any appropriate situation even though not specifically
provided herein.
5.4 No Bond Required of Trustees. No Trustee shall, as such, be obligated
----------------------------
to give any bond or surety or other security for the performance of any of his
or her duties hereunder.
5.5 No Duty Of Investigation; Notice in Trust Instruments, Etc. No
-----------------------------------------------------------
purchaser, lender, or other Person dealing with the Trustees or any officer,
employee or agent of the Trust shall be bound to make any inquiry concerning the
validity of any transaction purporting to be made by the Trustees or by said
officer, employee or agent or be liable for
-14-
the application of money, or property paid, loaned, or delivered to or on the
order of the Trustees or of said officers, employee or agent. Every obligation,
contract, instrument, certificate or other interest or undertaking of the Trust,
and every other act or thing whatsoever executed in connection with the Trust,
shall be conclusively taken to have been executed or done by the executors
thereof only in their capacity as Trustees, officers, employees, or agents of
the Trust. Every written obligation , contract, instrument, certificate or
other interest or undertaking of the Trust made by the Trustees or by any
officer, employee or agent of the Trust, in his or her capacity as such, shall
contain an appropriate recital to the effect that the Trustee, officer, employee
and agent of the Trust shall not personally be bound by or liable thereunder,
nor shall resort be had to their private property or the private property of the
Holders for the satisfaction of any obligation or claim thereunder, and
appropriate references shall be made therein to the Certificate, and may contain
any further recital which they deem appropriate, but the omission of such
recital shall not operate to impose personal liability on any of the Trustees,
officers, employees or agents of the Trust. The Trustees shall at all times
maintain insurance for the protection of the Trust Property, Holders, Trustees,
officers, employees and agent in such amount as the Trustees shall deem
advisable.
5.6 Reliance on Experts, Etc. Each Trustee and officer or employee of the
------------------------
Trust shall, in the performance of his or her duties, be fully and completely
justified and protected with regard to any act or any failure to act resulting
from reliance in good faith upon the books of account or other records of the
Trust, upon an opinion of counsel, or upon reports made to the Trust by any of
its officers or employees or by any Investment Adviser, Administrator,
accountant, appraiser 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.
5.7 Assent to Liability. Every Holder, by virtue of having become a
-------------------
Holder in accordance with the terms of this Declaration, shall be held to have
expressly assented and agreed to the terms hereof and to have become a party
hereto.
-15-
ARTICLE VI
Units in the Trust
------------------
6.1 Units. The beneficial interests in the property of the Trust shall
-----
consist of an unlimited number of Units. The Trust shall have the power to
issue fractional Units. S corporations and grantor trusts may not purchase
Units. No purchaser of Units which is a partnership may at any time have any
partners other than individuals or Institutional Investors. No certificates
certifying the ownership of Units or fractional Units need be issued except as
the Trustees may otherwise determine from time to time.
6.2 Rights of Holders. The ownership of the Trust Property of every
-----------------
description and the right to conduct any business hereinbefore described are
vested exclusively in the Trust or the Trustees, and the Holders shall have no
right or title therein other than the beneficial interest conferred by their
Units and they shall have no right to call for any partition or division of any
property, profits or rights of the Trust. The Units shall be personal property
giving only the rights specifically set forth in this Declaration.
6.3 Register of Units. A register shall be kept under the direction of
-----------------
the Trustees at the Trust or at the transfer agent, if one is appointed for the
Trust, which shall contain the names and addresses of the Holders and the Book
Capital Account balances of each Holder. Each such register shall be conclusive
as to the identity of the Holders of the Trust and the Persons who shall be
entitled to payments of distributions or otherwise to exercise or enjoy the
rights of Holders. No Holder shall be entitled to receive payment of any
distribution, nor to have notice given to it as herein provided, until it has
given its address to such officer or agent of the Trustees as shall keep the
said register for entry thereon.
6.4 Non-Transferability. Units shall not be transferable except to the
-------------------
Trust. The Trustees shall cause any certificate or other paper issued to the
Holders to contain a legend stating that such Holder's Units are non-
transferrable.
6.5 Notices. Any and all notices to which any Holder hereunder may be
-------
entitled and any and all communications shall be deemed duly served or given if
mailed, postage prepaid, addressed to any Holder of record at its last known
address as recorded on the register of the Trust.
6.6 No Preemptive Rights; Derivative Suits. Holders shall have no
--------------------------------------
preemptive or other rights to subscribe for any additional Units or other
securities issued by the Trust. No action may be brought by a Holder on behalf
of the Trust unless Holders owning no less
-16-
than 10% of the then outstanding Units join in the bringing of such action.
ARTICLE VII
Purchases, Decreases and Withdrawals
------------------------------------
7.1 Purchases. The Trustees may permit the purchase of Units from the
---------
Trust, but only if the purchaser is an Institutional Investor, individual, or
partnership (as limited by Section 6.1) and the number of Holders (or, in the
case of any series established in accordance with Section 9.8 hereof, the number
of Holders of the series) does not exceed 500 (including as a Holder, for this
purpose, each partner in any partnership Holder). The Trustees, in their
discretion, may, from time to time, without a vote of the Holders, permit the
purchase of Units by such party or parties (or increase in the Units of a
Holder) and for such type of consideration, including, without limitation, cash
or property, at such time or times (including, without limitation, each business
day), and on such terms as the Trustees may deem best, and may in such manner
acquire other assets (including, without limitation, the acquisition of assets
subject to, and in connection with the assumption of, liabilities) and
businesses.
7.2 Decreases and Withdrawals. A Holder shall have the authority to
-------------------------
decrease or withdraw its Units in the Trust, at such Holder's option, subject to
the terms and conditions provided in this Article VII. The Trust shall, upon
application of any Holder or pursuant to authorization from any Holder, and
subject to this Section 7.2, decrease or withdraw such Holder's Units; provided
that (a) the amount of such decrease or withdrawal shall not exceed the
reduction in the Holder's Book Capital Account effected by such decrease or
withdrawal of its Units and (b) if so authorized by the Trustees, the Trust may,
at any time and from time to time, charge fees for effecting such decrease or
withdrawal, at such rates as the Trustees may establish, and may, at any time
and from time to time, suspend such right of decrease or withdrawal subject to
the applicable requirements of the 1940 Act. The procedures for effecting
decreases or withdrawals shall be as determined by the Trustees from time to
time.
-17-
ARTICLE VIII
Determination of Book Capital Account
Balances, Net Income and Distributions
--------------------------------------
8.1 Book Capital Account Balances. An individual Book Capital Account
-----------------------------
shall be maintained for each Holder.
(a) The balance of each Holder's Book Capital Account shall consist of
its original contribution of capital, increased by additional contributions
and by allocations of income or gain and decreased by allocations of loss
and expenses and by distributions, including distributions pursuant to
redemptions of a Holder's Units in the Trust. Any payment by a Holder to
the Series of a transaction fee or in satisfaction of some other expense
charged to such Holder will neither be considered a contribution of capital
to the Series nor reflected in a Holder's Book Capital Account.
(b) The Book Capital Accounts of the Holders shall be adjusted daily
pursuant to Treasury Regulation Sections 1.704-1 (b) (2) (iv) (f) and (g)
to reflect the revaluation of Trust assets on the Trust's books as if such
assets had been sold for fair market value. Gain or loss in such case, and
in the case of an actual sale of Trust assets, shall be computed by
reference to the book value of the assets and not their tax basis. Such
Book Capital Accounts shall be further adjusted as necessary to meet the
requirements of Section 704 (b) of the Code and the Treasury Regulations
promulgated thereunder. The Trustees may adopt resolutions setting forth
the specific method of determining the Book Capital Account balances of
each Holder.
(c) The power and duty to make calculations pursuant to such
resolutions may be delegated by the Trustees to the Investment Adviser,
Administrator, custodian, or other such person as the Trustees may
determine.
The provisions of this Section 8.1 are intended to comply with Treasury
Regulation Section 1.704-1 (b) and shall be interpreted and applied in a manner
consistent with those regulations. The Trustees may make any appropriate
modifications to this Section 8.1 in the event unanticipated events cause this
Section 8.1 not to comply with Treasury Regulation Section 1.704-1 (b).
8.2 Distributions and Allocations to Holders. The Trust may, in
----------------------------------------
compliance with the regulations promulgated under the applicable provisions of
the Code pay distributions to each Holder, which shall be paid, in proportion to
such Holder's Book Capital Account. The Trust shall, in compliance with the
regulations promulgated under applicable provisions of
-18-
the Code (i) allocate daily the income or loss of the Trust to each Holder of
Units in the Trust in proportion to such Holder's Book Capital Account and (ii)
upon liquidation, make a final distribution to each Holder in accordance with
such Holder's positive Book Capital Account balance, as determined after taking
into account all Book Capital Account adjustments for the Trust's taxable year
during which the liquidation occurs (other than those adjustments made pursuant
to this Section 8.2 and Section 8.5 hereof), by the end of such taxable year
(or, if later, within 90 days after the date of the liquidation). The Trustees
may also retain from the amounts to be distributed such amount as they may deem
necessary to pay the debts or expenses of the Trust or to meet obligations of
the Trust, or, except in the case of distributions upon liquidation, as they may
deem desirable to use in the conduct of its affairs or to retain for future
requirements or extensions of its business. The Trustees may from time to time
modify the Trust's obligation or methodology under this Section 8.2 to the
extent necessary to comply with the Code or any regulations promulgated
thereunder.
8.3 Allocation of Certain Tax Items. If any property of the Trust is
-------------------------------
reflected in the Book Capital Accounts of the Holders and on the books of the
Trust at a book value that differs from the adjusted tax basis of such property,
then the tax items with respect to such property shall, in accordance with the
requirements of Treasury Regulations Section 1.704-1 (b) (4) (i) under the Code,
be shared among the Holders in a manner that takes account of the variation
between the adjusted tax basis of the applicable property and its book value in
the same manner as variations between the adjusted tax basis and fair market
value of property contributed to the Trust are taken into account in determining
the Holders' share of tax items under Code Section 704 (c).
8.4 Power to Modify Foregoing Procedures. Notwithstanding any of the
------------------------------------
foregoing provisions of this Article VIII, but subject to the requirements of
the Code and the Regulations thereunder, the Trustees may prescribe, in their
absolute discretion, such other bases and times for determining the net income
and net assets of the Trust, the allocation of income or the payment of
distributions to the Holders of Units in the Trust as they may deem necessary or
desirable to enable the Trust to comply with any applicable provisions of the
1940 Act, or any order of exemption issued by the Commission, as in effect now
or hereafter amended or modified.
8.5 Deficit Makeup Recruitment. In the event the Trust is "liquidated"
--------------------------
within the meaning of Treasury Regulation section 1.704-1 (b) (2) (ii) (g),
distributions shall be made pursuant to Section 8.2 hereof to any Holders who
have positive Book Capital
-19-
Account balances, in compliance with Treasury Regulation Section 1.704-1 (b) (2)
(ii) (b) (2). If, upon dissolution of the Trust (or any Holder's Units in the
---- ---
Trust), a Holder has a deficit balance in his or her Book Capital Account
following the liquidation of his or her Units in the Trust, as determined after
taking into account all Book Capital Account adjustments for the Trust's taxable
year during which such liquidation occurs, such Holder shall be unconditionally
obligated to contribute an amount of cash to the Trust, which amount shall be
sufficient to eliminate such deficit balance, and which contributions shall be
made in the manner and at the time called for in Treasury Regulation Section
1.704-1 (b).
ARTICLE IX
Holders
-------
9.1 Meetings of Holders. Meetings of the Holders may be called at any
-------------------
time by a majority of the Trustees and shall be called by any Trustee upon
written request of Holders holding, in the aggregate, not less than 10% of the
Units, such request specifying the purpose or purposes for which such meeting is
to be called and being accompanied by payment of the reasonable estimated costs
of preparing and mailing the notice of such meeting (which estimated costs shall
be determined and specified to such Holders by the Trust). Any such meeting
shall be held within or without the State of Delaware on such day and at such
time as the Trustees shall designate. Holders of a majority of the Units in the
Trust, present in person or by proxy, shall constitute a quorum for the
transaction of any business, except as may otherwise be required by the 1940 Act
or other applicable law or by this Declaration or the By-Laws of the Trust. If
a quorum is present at a meeting, an affirmative vote by the Holders present, in
person or by proxy, holding more than 50% of the total Units of the Holders
present, either in person or by proxy, at such meeting constitutes the action of
the Holders, unless the 1940 Act, other applicable law, this Declaration or the
By-Laws of the Trust requires a greater number of affirmative votes. Once
called, the Trustees may, in their discretion, postpone or adjourn any meeting
of Holders to a later date.
9.2 Notice of Meetings. Written or printed notice of all meetings of the
------------------
Holders, stating the time, place and purposes of the meeting, shall be given by
the Trustees either by presenting it personally to a Holder, leaving it at his
or her residence or usual place of business, or by sending it via United States
mail or by electronic transmission to a Holder, at his or her registered
address, at least 10 business days and not more than 90 business days before the
meeting. If mailed, such notice shall be deemed to be given when deposited in
the United States mail addressed to the Holder at his or her address as it is
registered with the Trust, with postage thereon prepaid. At any such meeting,
any business
-20-
properly before the meeting may be considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without
further notice.
9.3 Record Date for Meetings. For the purpose of determining the Holders
------------------------
who are entitled to notice of any meeting and to vote at any meeting, or to
participate in any distribution, or for the purpose of any other action, the
Trustees may from time to time fix a date, not more than 90 calendar days prior
to the date of any meeting of the Holders or payment of distributions or other
action, as the case may be, as a record date for the determination of the
persons to be treated as Holders of record for such purposes. If the Trustees
shall divide the Trust Property into two or more series in accordance with
Section 9.8 herein, nothing in this Section 9.3 shall be construed as precluding
the Trustees from setting different record dates for different series.
9.4 Proxies, Etc. At any meeting of Holders, any Holder entitled to vote
------------
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Secretary, or with such other
officer or agent of the Trust as the Secretary may direct, for verification
prior to the time at which such vote shall be taken.
(a) Pursuant to a resolution of a majority of the Trustees, proxies
may be solicited in the name of (i) one or more Trustees, (ii) one or more
of the officers of the Trust or (iii) such persons as may be designated by
the Trustees. Only Holders of record shall be entitled to vote. Each
Holder shall be entitled to a vote proportionate to its Units in the Trust.
(b) When Units are held jointly by several persons, any one of them
may vote at any meeting in person or by proxy in respect of such Units, but
if more than one of them shall be present at such meeting in person or by
proxy, and such joint owners or their proxies so present disagree as to any
vote to be cast, such vote shall not be received in respect of such Units.
(c) A proxy purporting to be executed by or on behalf of a Holder
shall be deemed valid unless challenged at or prior to its exercise, and
the burden of proving invalidity shall rest on the challenger. If the
Holder is a minor or a person of unsound mind, and subject to guardianship
or to the legal control of any other person
-21-
regarding the charge or management of its Units, he or she may vote by his
or her guardian or such other person appointed or having such control, and
such vote may be given in person or by proxy.
9.5 Reports. The Trustees shall cause to be prepared, at least annually,
-------
a report of operations containing a balance sheet and statement of income and
undistributed income of the Trust prepared in conformity with generally accepted
accounting principles and an opinion of an independent public accountant on such
financial statements. The Trustees shall, in addition, furnish to the Holders
at least semi-annually interim reports containing an unaudited balance sheet as
of the end of such period and an unaudited statement of income and surplus for
the period from the beginning of the current Fiscal Year to the end of such
period.
9.6 Inspection of Records. The records of the Trust shall be open to
---------------------
inspection by Holders during normal business hours and for any purpose not
harmful to the Trust.
9.7 Voting Powers. The Holders shall have power to vote only (a) for the
-------------
election and removal of Trustees as contemplated by Sections 2.2 and 2.3 hereof,
(b) with respect to any investment advisory contract as contemplated by Section
4.1 hereof, (c) with respect to termination of the Trust as provided in Section
10.2 hereof, (d) with respect to any amendment of this Declaration to the extent
and as provided in Section 10.4 hereof, (e) with respect to any merger,
consolidation or sale of assets as provided in Section 10.5 hereof, (f) with
respect to incorporation of the Trust to the extent and as provided in Section
10.6 hereof, (g) with respect to such additional matters relating to the Trust
as may be required by the 1940 Act, DBTA, or any other law, the Certificate, the
By-Laws or any registration of the Trust with the Commission (or any successor
agency) or any state, or as and when the Trustees may consider necessary or
desirable.
Each Holder shall be entitled to vote based on the ratio its Units bear to
the Units of all Holders entitled to vote. Until Units are issued, the Trustees
may exercise all rights of Holders and may take any action required by law, this
Declaration or the By-Laws to be taken by Holders. The By-Laws may include
further provisions for Holders' votes and meetings and related matters not
inconsistent with this Declaration.
9.8 Series of the Trust. The following provisions shall be applicable to
-------------------
any series of the Trust that may from time to time be established and designated
by the Trustees pursuant to Section 9.8 (f) hereof:
-22-
(a) All consideration received by the Trust for the issue or sale of
Units of a particular series together with all Trust Property 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
irrevocably belong to that series for all purposes, subject only to the
rights of creditors of such series and except as may otherwise be required
by applicable tax laws, and shall be so recorded upon the books of account
of the Trust. In the event that there is any Trust Property, or any
income, earnings, profits, and proceeds thereof, funds, or payments which
are not readily identifiable as belonging to any particular series, the
Trustees shall allocate them among any one or more of the series
established and designated from time to time in such manner and on such
basis as they in their sole discretion, deem fair and equitable. Each such
allocation by the Trustees shall be conclusive and binding upon the Holders
of all Units for all purposes.
(b) The Trust Property belonging to each particular series shall be
charged with the liabilities of the Trust in respect of that series and all
expenses, costs, charges and reserves attributable to that series, and 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 to and among any one or more
of the series established and designated from time to time in such manner
and on such basis as the Trustees in their sole discretion deem fair and
equitable. Each allocation of liabilities, expenses, costs, charges and
reserves by the Trustees shall be conclusive and binding upon the Holders
of all Units for all purposes in absence of manifest error. 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 Holders. Notice of this limitation on inter-series
liabilities may, in the Trustees' sole discretion, be set forth in the
Certificate of 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 DBTA, and upon the giving of such notice in the Certificate
of Trust, the statutory provisions of Section 3804 of the DBTA relating to
limitations on inter-series liabilities (and the statutory effect under
Section 3804 of setting forth such notice in the Certificate of
-23-
Trust) shall become applicable to the Trust and each series. Every note,
bond, contract or other undertaking issued by or on behalf of a particular
series shall include a recitation limiting the obligation represented
thereby to that series and its assets.
(c) Dividends and distributions on Units of a particular series may be
paid with such frequency as the Trustees may determine, which may be daily
or otherwise, pursuant to a standing resolution or resolution adopted only
once or with such frequency as the Trustees may determine, to the Holders
of Units in that series, from such of the income and capital gains, accrued
or realized, from the Trust Property belonging to that series as the
Trustees may determine, after providing for actual and accrued liabilities
belonging to that series. All dividends and distributions on units in a
particular series shall be distributed pro rata to the Holders of Units in
that series in proportion to the total outstanding Units in that series
held by such Holders at the date and time of record established for the
payment of such dividends or distribution.
(d) The Units in a series of the Trust shall represent beneficial
interests in the Trust Property belonging to such series. Each Holder of
units in a series shall be entitled to receive its pro rata share of
distributions of income and capital gains made with respect to such series
upon reduction or withdrawal of its Units or indemnification for
liabilities incurred by reason of being or having been a Holder of Units in
a series, such Holder shall be paid solely out of the funds and property of
such series of the Trust. Upon liquidation or termination of a series of
the Trust, Holders of Units in such series shall be entitled to receive a
pro rata share of the Trust Property belonging to such series. A Holder of
Units in a particular series of the Trust shall not be entitled to
participate in a derivative or class action lawsuit on behalf of any other
series or the Holders of Units in any other series of the Trust.
(e) Notwithstanding any other provision hereof, if the Trust Property
has been divided into two or more series, then on any matter submitted to a
vote of Holders of Units in the Trust, all Units then entitled to vote
shall be voted by individual series, except that (1) when required by the
1940 Act, Units shall be voted in the aggregate and not by individual
series, and (2) when the Trustees have determined that the matter affects
only the interests of Holders of Units in a limited number of series, then
only the Holders of Units in such series shall be entitled to
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vote thereon. Except as otherwise provided in this Article IX, the
Trustees shall have the power to determine the designations, preferences,
privileges, limitations and rights, including voting and dividend rights,
of each series of Units.
(f) The establishment and designation of any series of Units shall be
effective upon the adoption by a majority of the then Trustees of a
resolution which sets forth such establishment and designation and the
relative rights and preferences of such series (or class). At any time
that there are no Units outstanding of any particular series previously
established and designated, the Trustees may by an instrument executed by a
majority of their number abolish that series and the establishment and
designation thereof. Each resolution referred to in this paragraph shall
have the status of an amendment to this Declaration.
(g) If the Trust Property has been divided into two or more series,
then Sections 10.2 and 10.3 of this Agreement shall apply also with respect
to each such series as if such series were a separate trust.
(h) The Trustees shall be authorized to issue an unlimited number of
Units of each series.
(i) At any time that there are no Holders of units in a series, the
Trustees may abolish such series.
9.9 Holder Action by Written Consent. Any action which may be taken by
--------------------------------
Holders may be taken without notice and without a meeting if Holders holding
more than 50% of the total Units entitled to vote (or such larger proportion
thereof as shall be required by any express provision of this Declaration or the
▇▇▇▇ ▇▇▇) shall consent to the action in writing and the written consents shall
be filed with the records of the meetings of Holders. Such consents shall be
treated for all purposes as votes taken at a meeting of Holders.
9.10 Holder Communications. Whenever ten or more Holders who have been
---------------------
such for at least six months preceding the date of application, and who hold in
the aggregate at least 10% of the total Units, shall apply to the Trustees in
writing, stating that they wish to communicate with other Holders with a view to
obtaining signatures to a request for a meeting of Holders and accompanied by a
form of communication and request which they wish to transmit, the Trustees
shall within five business days after receipt of such application either (1)
afford to such applicants access to a list of the names and addresses of all
Holders as recorded on the books of the Trust; or (2) inform such applicants as
to the approximate number of Holders, and the approximate cost of transmitting
to them the proposed communication and form of request.
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If the Trustees elect to follow the course specified in clause (2) above,
the Trustees, upon the written request of such applicants, accompanied by a
tender of the material to be transmitted and of the reasonable expenses of
transmission, shall, with reasonable promptness, transmit, by United States mail
or by electronic transmission, such material to all Holders at their addresses
as recorded on the books, unless within five business days after such tender the
Trustees shall transmit, by United States mail or by electronic transmission, to
such applicants and file with the Commission, together with a copy of the
material to be transmitted, a written statement signed by at least a majority of
the Trustees to the effect that in their opinion either such material contains
untrue statements of fact or omits to state facts necessary to take the
statements contained therein not misleading, or would be in violation of
applicable law, and specifying the basis of such opinion. The Trustees shall
thereafter comply with any order entered by the Commission and the requirements
of the 1940 Act and the Securities Exchange Act of 1934, as amended.
ARTICLE X
Duration; Termination of Trust;
Amendment; Mergers; Etc.
-----------------------
10.1 Duration. Subject to possible termination or dissolution in
--------
accordance with the provisions of Sections 10.2 and 10.3 respectively, the Trust
created hereby shall continue perpetually pursuant to Section 3808 of DBTA.
10.2 Termination of Trust.
--------------------
(a) The Trust may be terminated (i) by the affirmative vote of the
Holders of not less than two-thirds of the Units in the Trust at any
meeting of the Holders, or (ii) by an instrument in writing, without a
meeting, signed by a majority of the Trustees and consented to by the
Holders of not less than two-thirds of such Units, or (iii) by the Trustees
by written notice to the Holders. Upon any such termination,
(i) The Trust shall carry on no business except for the purpose
of winding up its affairs.
(ii) The Trustees shall proceed to wind up the affairs of the
Trust and all of the powers of the Trustees under this Declaration
shall continue until the affairs of the Trust shall have been wound
up, including the power to fulfill or discharge the contracts of the
Trust, collect its assets, sell, convey, assign, exchange, or
otherwise dispose of all or any part of the remaining
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Trust Property to one or more Persons at public or private sale for
consideration which may consist in whole or in part of cash,
securities or other property of any kind, discharge or pay its
liabilities, and do all other acts appropriate to liquidate its
business; provided that any sale, conveyance, assignment, exchange, or
other disposition of all or substantially all of the Trust Property
shall require approval of the principal terms of the transaction and
the nature and amount of the consideration by the Holders by a
Majority Units Vote.
(iii) After paying or adequately providing for the payment of
all liabilities, and upon receipt of such releases, indemnities and
refunding agreements, as they deem necessary for their protection, the
Trustees may distribute the remaining Trust Property, in cash or in
kind or partly each, among the Holders according to their respective
rights.
(b) Upon termination of the Trust and distribution to the Holders as
herein provided, a majority of the Trustees shall execute and lodge among
the records of the Trust an instrument in writing setting forth the fact of
such termination and file a certificate of cancellation in accordance with
section 3810 of the DBTA. Upon termination of the Trust, the Trustees
shall thereon be discharged from all further liabilities and duties
hereunder, and the rights and interests of all Holders shall thereupon
cease.
10.3 Termination Upon Certain Events. Upon the bankruptcy of any Holder,
-------------------------------
the Trust shall be terminated effective 120 days after the event. However, the
Holders may, by a vote of Holders holding more than 50% of the total Units or by
an instrument in writing signed by a majority of the Trustees and consented to
by Holders holding more than 50% of the total Units, agree to continue the
business of the Trust.
10.4 Amendment Procedure.
-------------------
(a) Except as may otherwise be required under the terms of the 1940
Act, the DBTA or another applicable law, this Declaration may be amended by
an instrument in writing, without a meeting, signed by a majority of the
Trustees, and without the vote or consent of Holders, for any purpose,
including but not limited to the following: (i) to change the name of the
Trust, to supply any omission, to cure, correct or supplement any
ambiguous, defective or inconsistent provision hereof, or to conform this
Declaration to the requirements of the 1940 Act, the Code, DBTA, or any
other applicable federal or state laws or regulations, but the Trustees
shall not be liable for failing so to do; (ii) to change the state or other
jurisdiction designated
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herein as the state or other jurisdiction whose laws shall be the governing
law hereof; (iii) to effect such changes herein as the Trustees find to be
necessary or appropriate (A) to permit the filing of this Declaration under
the laws of such state or other jurisdiction applicable to trusts or
voluntary associations, (B) to permit the Trust to elect to be treated as a
"regulated investment company" under the applicable provisions of the Code,
or (C) to permit the transfer of Units (or to permit the transfer of any
other beneficial interests or shares in the Trust, however denominated);
and (iv) in conjunction with any amendment contemplated by the foregoing
clause (ii) or the foregoing clause (iii) to make any and all such further
changes or modifications to this Declaration as the Trustees find to be
necessary or appropriate, any finding of the Trustees referred to in the
foregoing clause (iii) or clause (iv) to be conclusively evidenced by the
execution of any such amendment by a majority of the Trustees.
(b) If the consent of Holders is required under the 1940 Act, the DBTA
or other applicable law, for any proposed amendment, this Declaration may
be amended at a meeting by the vote of Holders holding more than 50% of the
total Units present or by any instrument in writing, without a meeting,
signed by a majority of the Trustees and consented to by Holders holding
more than 50% of the total Units.
(c) No amendment may be made, under Section 10.4 (a) above, which
would change any rights with respect to any Units in the Trust by reducing
the amount payable thereon upon liquidation of the Trust or by diminishing
or eliminating any voting rights pertaining thereto, except with a Majority
Units Vote.
(d) A certification in recordable form signed by a majority of the
Trustees setting forth an amendment and reciting that it was duly adopted
by the Holders or by the Trustees as aforesaid or a copy of this
Declaration, as amended, in recordable form, and executed by a majority of
the Trustees, shall be conclusive evidence of such amendment when lodged
among the records of the Trust.
(e) Notwithstanding any other provision hereof, until such time as
Units are first sold, this Declaration may be terminated or amended in any
respect by the affirmative vote of a majority of the Trustees or by an
instrument signed by a majority of the Trustees.
10.5 Merger, Consolidation and Sale of Assets. The Trust, or any series
----------------------------------------
thereof, may merge or consolidate with any other corporation, association, trust
or other organization or may sell, lease or exchange all or substantially all of
its property, including
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its good will, upon such terms and conditions and for such consideration when
and as authorized by no less than a majority of the Trustees and by a Majority
Units Vote of the Trust or such series, as the case may be, or by an instrument
or instruments in writing without a meeting, consented to by the Holders of not
less than 50% of the total Units, and any such merger, consolidation, sale,
lease or exchange shall be deemed for all purposes to have been accomplished
under and pursuant to the statutes of the State of Delaware. In accordance with
Section 3815 (f) of DBTA, an agreement of merger or consolidation may effect any
amendment to the Declaration or By-Laws or effect the adoption of a new
declaration of trust or by-laws of the Trust if the Trust is the surviving or
resulting business trust. A certificate of merger of consolidation of the Trust
shall be signed by a majority of the Trustees.
10.6 Incorporation. Upon a Majority Units Vote, the Trustees may cause to
-------------
be organized or assist in organizing a corporation or corporations under the
laws of any jurisdiction or any other trust, partnership, association or other
organization to take over all of the Trust Property or to carry on any business
in which the Trust shall directly or indirectly have any interest, and to sell,
convey and transfer the Trust Property to any such corporation, trust,
association or organization in exchange for the equity interests thereof or
otherwise, and to lend money to, subscribe for the equity interests of, and
enter into any contracts with any such corporation, trust, partnership,
association or organization, or any corporation, partnership, trust, association
or organization in which the Trust holds or is about to acquire equity
interests. The Trustees may also cause a merger or consolidation between the
Trust or any successor thereto and any such corporation, trust, partnership,
association or other organization if and to the extent permitted by law, as
provided under the law then in effect. Nothing contained herein shall be
construed as requiring approval of the Holders for the Trustees to organize or
assist in organizing one or more corporations, trusts, partnerships,
associations or other organizations and selling, conveying or transferring a
portion of the Trust Property to such organizations or entities.
ARTICLE XI
Miscellaneous
-------------
11.1 Certificate of Designation; Agent for Service of Process. The Trust
--------------------------------------------------------
shall file, in accordance with Section 3812 of DBTA, in the office of the
Secretary of State of Delaware, a certificate of trust, in the form and with
such information required by Section 3810 by DBTA and executed in the manner
specified in Section 3811 of DBTA. In the event the Trust does not have at
least one Trustee qualified under Section 3807 (a) of DBTA, then the
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Trust shall comply with Section 3807 (b) of DBTA by having and maintaining a
registered office in Delaware and by designating a registered agent for service
of process on the Trust, which agent shall have the same business office as the
Trust's registered office. The failure to file any such certificate, to
maintain a registered office, to designate a registered agent for service of
process, or to include such other information shall not affect the validity of
the establishment of the Trust, this Declaration, the By-Laws or any action
taken by the Trustees, the Trust officers or any other Person with respect to
the Trust except insofar as a provision of the DBTA would have governed, in
which case the Delaware common law governs.
11.2 Governing Law. This Declaration is executed by all of the Trustees
-------------
and delivered with reference to DBTA and the laws of the State of Delaware, and
the rights of all parties and the validity and construction of every provision
hereof shall be subject to and construed according to DBTA and the laws of the
State of Delaware (unless and to the extent otherwise provided for and/or
preempted by the 1940 Act or other applicable federal securities laws);
provided, however, that there shall not be applicable to the Trust, the Trustees
or this Declaration (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 DBTA) pertaining to trusts which are
inconsistent with the rights, duties, powers, limitations or liabilities of the
Trustees set forth or referenced in this Certificate.
11.3 Counterparts. This Declaration may be simultaneously executed in
------------
several counterparts, each of which shall be deemed to be an original, and such
counterparts, together, shall constitute one and the same instrument, which
shall be sufficiently evidenced by any such original counterpart.
11.4 Reliance by Third Parties. Any certificate executed by an individual
-------------------------
who, according to the records of the Trust or of any recording office in which
this Declaration may be recorded, appears to be a Trustee hereunder, certifying
to (a) the number or identity of Trustees or Holders, (b) the due authorization
of the execution of any instrument or writing, (c) the form of any vote passed
at a meeting of Trustees or Holders, (d) the fact that the number of Trustees or
Holders present at any meeting or executing any written instrument satisfies the
requirements of this Certificate, (e) the form of any By-Laws adopted by or the
identity of any officers elected by the Trustees, or (f) the existence of any
fact or facts which in any manner relate to the affairs of the Trust, shall be
conclusive evidence as to the matters so certified in favor of any person
dealing with the Trustees and their successors.
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11.5 Provisions in Conflict With Law or Regulations
----------------------------------------------
(a) The provisions of this Declaration are severable, and if the
Trustees shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the DBTA, or with other
applicable laws and regulations, the conflicting provisions shall be deemed
never to have constituted a part of this Declaration; provided, however,
that such determination shall not affect any of the remaining provisions of
this Declaration or render invalid or improper any action taken or omitted
prior to such determination.
(b) If any provision of this Declaration shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability
shall attach only to such provision in such jurisdiction and shall not in
any manner affect such provision in any other jurisdiction or any other
provision of this Declaration in any jurisdiction.
11.6 Trust Only. It is the intention of the Trustees to create only a
----------
business trust under DBTA with the relationship of Trustee and beneficiary
between the Trustees and each Holder from time to time. It is not the intention
of the Trustees to create a general partnership, limited partnership, joint
stock association, corporation, bailment, or any form of legal relationship
other than a Delaware business trust except to the extent such trust is deemed
to constitute a partnership under the Code and applicable state tax laws.
Nothing in this Declaration shall be construed to make the Holders, either by
themselves or with the Trustees, partners or members of a joint stock
association except to the extent such Holders are deemed to be partners under
the Code and applicable state tax laws. However, it is the intention of the
Trustees to create a partnership among the Holders for purposes of taxation
under the Code and applicable state tax laws.
11.7 Tax Matters Partner. The Trustees shall appoint one of the Holders
-------------------
with respect to each series as tax matters partner ("TMP") in accordance with
Section 6231 (a) (7) of the Code for federal income tax purposes.
(a) The TMP shall be charged with all authority and duties accorded
tax matters partners under the Code and applicable regulations. The TMP,
at Trust expense, shall cause to be prepared income tax returns for the
Trust and shall further cause such returns to be timely filed with the
appropriate authorities. In the event the Trust is subject to
administrative or judicial proceedings for the assessment and collection of
deficiencies for federal taxes or for the refund of overpayments of federal
taxes arising out of a Holder's distributive share of income, losses, gain,
credits and deductions, the TMP shall have all the powers and duties
assigned to the TMP under Sections 6221-6233 of the Code and regulations
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thereunder. Such powers include the right of the TMP, in its absolute
discretion, to make or to refuse to make any election, or to take or to
refuse to take any action, permitted to be made or taken pursuant to the
provisions of Sections 6221-6232 of the Code. In addition, the TMP shall
have similar authority and duties with respect to all state and local tax
matters.
(b) Nothing in this Section 11.7 shall be construed to prohibit the
TMP from delegating its authority and duties as TMP to the Trustees or an
agent or adviser selected with the approval of the Trustees.
(c) The TMP, Trustees, agent or adviser, as the case may be, shall
send to each Holder within 60 days after the end of each taxable year, the
information necessary for the Holder to complete its federal and state
income tax or information returns and a copy of the Trust's federal, state
and local income tax or information returns for the year.
11.8 Withholding. Should any Holder be subject to withholding pursuant to
-----------
the Code or any other provision of law, the Trust shall withhold all amounts
otherwise distributable to such Holder as shall be required by law and any
amounts so withheld shall be deemed to have been distributed to such Holder
under this Declaration. If any sums are withheld pursuant to this provision,
the Trust shall remit the sums so withheld to and file the required forms with
the Internal Revenue Service, or other applicable government agency.
11.9 Headings and Construction. 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 wherein, the same shall include the plural; and the
neuter, masculine and feminine genders shall include each, other, as applicable.
11.10 Use of the Name "▇▇▇▇▇▇▇". The name "▇▇▇▇▇▇▇" and all rights to the
-------------------------
use of the name "▇▇▇▇▇▇▇" belong to ▇▇▇▇▇▇▇ Partners Inc. ("▇▇▇▇▇▇▇"), the
Investment Adviser of the Trust. ▇▇▇▇▇▇▇ has consented to the use of the name
"▇▇▇▇▇▇▇" as part of the name of the Trust and the name of any series of the
Trust. In the event that ▇▇▇▇▇▇▇ or an affiliate of ▇▇▇▇▇▇▇ is not appointed as
Investment Adviser or ceases to be the Investment Adviser of the Trust or of any
series using such names, the nonexclusive license granted herein may be revoked
by ▇▇▇▇▇▇▇ and the Trust promptly shall cease using the name "▇▇▇▇▇▇▇" as part
of its name or the name of any series of the Trust, upon receipt of the written
request therefore by ▇▇▇▇▇▇▇ or any successor to its rights to such name.
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IN WITNESS WHEREOF, the Trustees named below do hereby make and enter into
this Amended and Restated Agreement and Declaration of Trust as of the 20th day
----
of May, 1996.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Trustee of ▇▇▇▇▇▇▇ Relationship Funds
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trustee of ▇▇▇▇▇▇▇ Relaionship Funds
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇
-----------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Trustee of ▇▇▇▇▇▇▇ Relationship Funds
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
THE PLACE OF BUSINESS OF THE TRUST IS
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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