AGREEMENT AND DECLARATION OF TRUST OF PERSIMMON GROWTH PARTNERS INVESTOR FUND
AGREEMENT
AND DECLARATION OF TRUST
OF
WHEREAS, THIS 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
statutory trust in accordance with the provisions hereinafter set
forth,
NOW, THEREFORE, the Trustees hereby
ratify the Certificate of Trust 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 Shares of this Trust.
ARTICLE
I
NAME
AND DEFINITIONS
SECTION
1. NAME. This trust shall be known as "Persimmon Growth Partners Investor 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. DEFINITIONS. Whenever used herein, unless otherwise required by the context
or specifically provided:
(a)
The "1940 Act" refers to the Investment Company Act of 1940 and the Rules and
Regulations thereunder, all as amended from time to time;
(b)
"By-Laws" shall mean the By-Laws of the Trust as amended from time to time which
By-Laws are expressly herein incorporated by reference as part of the "governing
instrument" within the meaning of the Delaware Act;
(c)
The terms "Commission" and "Principal Underwriter" shall have the respective
meanings given them in Section 2(a)(7) and Section 2(a)(29) of the 1940
Act;
(d)
"Declaration of Trust" shall mean this Agreement and Declaration of Trust, as
amended or restated from time to time;
(e)
"Delaware Act" means the Delaware Business Trust Act, 12 Del. Code, Section 3801
et seq., as amended from time to time;
(f)
"Investment Adviser" or "Adviser" means a party furnishing services to the Trust
pursuant to any contract described in Article IV, Section 7(a)
hereof;
(g)
"Person" means and includes individuals, corporations, partnerships, trusts,
associations, joint ventures, estates and other entities, whether or not legal
entities, and governments and agencies and political subdivisions thereof,
whether domestic or foreign;
(h)
"Shareholder" means a record owner of outstanding Shares;
(i)
"Shares" means the shares of beneficial interest into which the beneficial
interest in the Trust shall be divided from time to time and includes fractions
of Shares as well as whole Shares;
(j)
The "Trust" refers to the Delaware business trust established under the Delaware
Act by this Agreement and Declaration of Trust and the filing of the Certificate
of Trust in the Office of the Secretary of State of the State of Delaware, as it
may be amended from time to time;
(k)
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, including
without limitation the rights referenced in Article VIII, Section 10 hereof;
and
(l)
"Trustees" refer to the persons who have signed this Declaration of Trust, so
long as they 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;
.
ARTICLE
II
PURPOSE
OF THE TRUST
The
purpose of the Trust is to conduct, operate and carry on the business of a
closed-end management investment company registered under the 1940
Act.
ARTICLE
III
SHARES
SECTION
1. IN GENERAL. All Shares issued hereunder, including, without limitation,
Shares issued in connection with a dividend paid in Shares or a split or reverse
split of Shares, shall be fully paid and non-assessable. Except as otherwise
provided by the Trustees, Shareholders shall have no preemptive or other right
to subscribe to any additional Shares or other securities issued by the
Trust.
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. 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 issuance of Share certificates,
transfer of Shares, and similar matters. The record books of the Trust as kept
by the Trust, or any transfer or similar agent, as the case may be, shall be
conclusive as to the identity of the Shareholders and as to the number of Shares
held from time to time by each Shareholder.
SECTION
3. TRANSFER OF SHARES. Except as otherwise provided by the Trustees, Shares
shall be transferable on the books of the Trust only by the record holder
thereof or by his duly authorized agent upon delivery to the Trustees or the
Trust 's transfer agent of a duly executed instrument of transfer, together with
a Share certificate if one is outstanding, and such evidence of the genuineness
of each such execution and authorization and of such other matters as may be
required by the Trustees. Upon such delivery, and subject to any further
requirements specified by the Trustees or contained in the By-Laws, the transfer
shall be recorded on the books of the Trust. Until a transfer is so recorded,
the Shareholder of record of Shares shall be deemed to be the holder of such
Shares for all purposes hereunder and the Trustees the Trust, any transfer agent
or registrar, or any officer, employee or agent of the Trust, shall not be
affected by any notice of any proposed transfer.
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SECTION
4. 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 individual Shareholder's account in the form of full and fractional Shares
of the Trust at the net asset value per Share next determined after receipt of
the investment; provided, however, that the Trustees may, in their sole
discretion, impose a redemption or repurchase fee, sales charge or transaction
fee upon investments in the Trust.
SECTION
5. 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, incapacity, dissolution, termination or bankruptcy 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 representative only to the rights of such
Shareholder under this Trust. Ownership of Shares shall not entitle the
Shareholder to any title in or to the whole or any part of the Trust Property or
right to call for a partition or division of the same or for an accounting, nor
shall the ownership of Shares constitute the Shareholders as partners. Neither
the Trust nor the Trustees, nor any officer, employee or agent of the Trust
shall have any power to bind personally any 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
6. POWER OF BOARD OF TRUSTEES TO CHANGE PROVISIONS RELATING TO SHARES.
Notwithstanding any other provisions of this Declaration of Trust and without
limiting the power of the Board of Trustees to amend the Declaration of Trust as
provided elsewhere herein, the Board of Trustees shall have the power to amend
this Declaration of Trust, at any time and from time to time, in such manner as
the Board of Trustees may determine in their sole discretion, without the need
for Shareholder action, so as to add to, delete, replace or otherwise modify any
provisions 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 or that Shareholder approval is not
otherwise required by the 1940 Act or other applicable federal or state
law.
Subject
to the foregoing Paragraph, the Board of Trustees may amend the Declaration of
Trust to amend any of the provisions set forth in Section 7 of this Article
III.
SECTION
7. ESTABLISHMENT AND DESIGNATION OF SHARES.
(a)
EQUALITY. All the Shares shall represent an equal proportionate undivided
interest in the assets held by the Trust (subject to the liabilities of the
Trust).
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(b)
FRACTIONS. 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.
(c)
CHARACTER OF DIVIDENDS AND DISTRIBUTIONS. The Trustees shall have
full discretion, to the extent not inconsistent with the 1940 Act or the
Internal Revenue Code of 1986, as amended (or any successor statute thereto), to
determine which items shall be treated as income and which items as capital; and
such determination and allocation shall be conclusive and binding upon the
Shareholders.
(d)
TRANSFERABILITY. The Trustees shall have the authority to provide that the
Shares are non-transferable.
(e)
SPECIAL PROVISION FOR REDEMPTIONS AT THE OPTION OF THE TRUST. The Trustees shall
have the authority to provide for special provisions determining the Trust's
right at its option to redeem the Shares of any Shareholder.
(f)
DEFINITION OF SHARES. The Trustees shall have the authority to provide for
special definitions of the term "Shares" for purposes of all references found
within this Trust Agreement.
SECTION
8. INDEMNIFICATION OF SHAREHOLDERS. If any Shareholder or former Shareholder
shall be exposed to liability by reason of a claim or demand relating to his or
her being or having been a Shareholder, and not because of his or her acts or
omissions, the Shareholder or former Shareholder (or his or her heirs,
executors, administrators, or other legal representatives or in the case of a
corporation or other entity, its corporate or other general successor) shall be
entitled to be held harmless from and indemnified out of the assets of the Trust
against all loss and expense arising from such claim or demand.
ARTICLE
IV
THE
BOARD OF TRUSTEES
SECTION
1. NUMBER, ELECTION AND TENURE. The number of Trustees constituting the Board of
Trustees shall initially be four (4). Hereafter, the number 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 four (4) nor more
than fifteen (15). The Board of Trustees, by action of a majority of the then
Trustees at a duly constituted meeting, may fill vacancies in the Board of
Trustees or remove Trustees with or without cause. Subject to any policy adopted
by the Board of Trustees, each Trustee shall serve during the continued lifetime
of the Trust for an indefinite term, or, if sooner, until he or she dies,
resigns, is declared bankrupt or incompetent by a court of appropriate
jurisdiction, or is removed, or until the next meeting of Shareholders called
for the purpose of electing Trustees and until the election and qualification of
his or her successor. In the event that less than a majority of the Trustees
holding office have been elected by the Shareholders, the Trustees then in
office shall call a Shareholders' meeting for the election of Trustees. Any
Trustee may resign at any time by written instrument signed by him or her and
delivered to any officer of the Trust or to a meeting of the Trustees. Such
resignation shall be effective upon receipt, unless specified to be effective at
some other time. Except to the extent expressly provided in a written agreement
with the Trust, no Trustee resigning and no Trustee removed shall have any right
to any compensation or expense reimbursement for any period following his or her
resignation or removal, or any right to damages on account of such removal. The
Shareholders may elect Trustees at any meeting of Shareholders called by the
Trustees for that purpose. 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.
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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 this 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.
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
including the power to engage in securities transactions of all kinds on behalf
of the Trust. 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 administration of the
Trust. Without limiting the foregoing, the Trustees may: (i) adopt By-Laws not
inconsistent with this Declaration of Trust providing for the regulation and
management of the affairs of the Trust and may amend and repeal them to the
extent that such By-Laws do not reserve that right to the Shareholders; (ii)
elect and remove, with or without cause, such officers and appoint and terminate
such agents as they consider appropriate; (iii) appoint from their own number
and establish and terminate one or more committees consisting of two or more
Trustees which may exercise the powers and authority of the Board of Trustees to
the extent that the Trustees determine; (iv) employ one or more custodians of
the assets of the Trust and may authorize such custodians to employ
subcustodians and to deposit all or any part of such assets in a system or
systems for the central handling of securities or with a Federal Reserve Bank,
retain a transfer agent or a shareholder servicing agent, or both; (v) provide
for the issuance and distribution of Shares by the Trust directly or through one
or more Principal Underwriters or for the determination of Shareholders with
respect to various matters; (vi) declare and pay dividends and distributions to
Shareholders; and (vii) in general delegate such authority as they consider
desirable to any officer of the Trust, to any committee of the Trustees and to
any agent or employee of the Trust or to any such custodian, transfer or
shareholder servicing agent, or Principal Underwriter. Any determination as to
what is in the interests of the Trust made by the Trustees in good faith shall
be conclusive. In construing the provisions of this Declaration of Trust, the
presumption shall be in favor of a grant of power to the Trustees. Unless
otherwise specified herein or in the By-Laws or required by law, any action by
the Board of Trustees shall be deemed effective if approved or taken by a
majority of the Trustees present at a meeting of Trustees at which a quorum of
Trustees is present, within or without the State of Delaware. 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 all members of the
Board of Trustees or committee (as the case may be) consent thereto in writing,
and the writing or writings are filed with the minutes of the proceedings of the
Board of Trustees, or committee.
Without
limiting the foregoing, the Trustees shall have the power and authority to cause
the Trust (or to act on behalf of the Trust):
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(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, and securities of every nature and kind, including,
without limitation, all types of bonds, debentures, stocks, preferred 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,
issued, created, guaranteed, or sponsored by any and all Persons, including,
without limitation, states, territories, and possessions of the United States
and the District of Columbia and any political subdivision, agency, or
instrumentality thereof, any 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, subject to any requirements of the 1940
Act;
(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 right 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 that it is Trust
Property, whether in bearer, unregistered or other negotiable form, or in its
own name or in the name of a custodian or subcustodian or a nominee or nominees
or otherwise or to authorize the custodian or a subcustodian or a nominee or
nominees to deposit the same in a securities depository;
(f)
To consent to, or participate in, any plan for the reorganization, consolidation
or merger of any corporation or issuer of any security which is held in the
Trust; to consent to any contract, lease, mortgage, purchase or sale of property
by such corporation or issuer; and to pay calls or subscriptions with respect to
any security held in the Trust;
(g)
To join with other security holders in acting through a committee, depositary,
voting trust or otherwise, and in that connection to deposit any security with,
or transfer any security to, any such committee, depositary or voting trust, 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 voting trust as the Trustees shall deem
proper;
6
(h)
To compromise, arbitrate or otherwise adjust claims in favor of or against the
Trust or any matter in controversy, including but not limited to claims for
taxes;
(i)
To enter into joint ventures, general or limited partnerships and any other
combinations or associations;
(j)
To borrow funds or other property in the name of the Trust exclusively for Trust
purposes;
(k)
To endorse or guarantee the payment of any notes or other obligations of any
Person; to make contracts of guaranty or suretyship, or otherwise assume
liability for payment thereof;
(l)
To purchase and pay for 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 Advisers, 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
Adviser, Principal Underwriter, or independent contractor, including any action
taken or omitted that may be determined to constitute negligence, whether or not
the Trust would have the power to indemnify such Person against
liability;
(m)
To adopt, establish and carry out pension, profit-sharing, share bonus, share
purchase, savings, thrift and other retirement, incentive and benefit plans,
trusts and provisions, including the purchasing of life insurance and annuity
contracts as a means of providing such retirement and other benefits, for any or
all of the Trustees, officers, employees and agents of the Trust;
(n)
To 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 subject to any conditions set forth in
this Declaration of Trust or in the By-Laws;
(o)
To interpret the investment policies, practices or limitations of the Trust;
and
(p)
To invest part or all of the Trust Property, or to dispose of part or all of the
Trust Property and invest the proceeds of such disposition, in securities issued
by one or more other investment companies registered under the 1940 Act
(including investment by means of transfer of part or all of the Trust Property
in exchange for an interest or interests in such one or more investment
companies) all without any requirement of approval by Shareholders unless
required by 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 of any other
state) which is classified as a partnership for federal income tax
purposes.
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.
7
SECTION
4. PAYMENT OF EXPENSES BY THE TRUST. The Trustees are authorized to pay or cause
to be paid out of the principal or income of the Trust, or partly out of the
principal and partly out of the income, and to charge or allocate the same as
they deem fair, all expenses, fees, charges, taxes and liabilities incurred or
arising in connection with the Trust, or in connection with the management
thereof, including, but not limited to, the Trustees' compensation and such
expenses and charges for the services of the Trust's officers, employees,
Investment Adviser, Principal Underwriter, auditors, counsel, custodian,
transfer agent, Shareholder servicing agent, and such other agents or
independent contractors and such other expenses and charges as the Trustees may
deem necessary or proper to incur.
SECTION
5. PAYMENT OF EXPENSES BY SHAREHOLDERS. 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 agent,
Shareholder servicing or similar agent, an amount fixed from time to time by the
Trustees, by setting off such charges due from such Shareholder from declared
but unpaid dividends owed such Shareholder and/or by reducing the number of
Shares in the account of such Shareholder by that number of full and/or
fractional Shares which represents the outstanding amount of such charges due
from such Shareholder.
SECTION
6. OWNERSHIP OF ASSETS OF THE TRUST. Title to all of the assets of the Trust
shall at all times be considered as vested in the Trust, except that the
Trustees shall have power to cause legal title to any Trust Property to be held
by or in the name of one or more of the Trustees, or in the name of the Trust,
or in the name of any other Person as nominee, on such terms as the Trustees may
determine. The right, title and interest of the Trustees in the Trust Property
shall vest automatically in each Person who may hereafter become a Trustee. Upon
the resignation, removal or death of a Trustee he 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. Such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered.
SECTION
7. SERVICE CONTRACTS.
(a)
Subject to such requirements and restrictions as may be set forth in the
By-Laws, the Trustees may, at any time and from time to time, contract for
exclusive or nonexclusive advisory, management and/or administrative services
for the Trust with any corporation, trust, association or other organization;
and any such contract may contain such other terms as the Trustees may
determine, including without limitation, authority for the Investment Adviser or
administrator to determine from time to time without prior consultation with the
Trustees what investments shall be purchased, held, sold or exchanged and what
portion, if any, of the assets of the Trust shall be held uninvested and to make
changes in the Trust's investments, or such other activities as may specifically
be delegated to such party.
(b)
The Trustees may also, at any time and from time to time, contract with any
corporation, trust, association or other organization, appointing it exclusive
or nonexclusive distributor, Principal Underwriter or placement agent for the
Shares 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
By-Laws; and any such contract may contain such other terms as the Trustees may
determine.
8
(c)
The Trustees are also empowered, at any time and from time to time, to contract
with any corporations, trusts, associations or other organizations, appointing
it or them the 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 By-Laws 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 entity to provide other services to the Trust, as the Trustees
determine to be in the best interests of the Trust.
(e)
The fact that:
(i)
any of the Shareholders, Trustees, or officers of the Trust is a shareholder,
trustee, officer, partner, employee, Adviser, adviser, principal underwriter,
distributor, or affiliate or agent of or for any corporation, trust,
association, or other organization or for any parent or affiliate of any
organization with which an advisory, management or administration contract, or
principal underwriter's or distributor's contract, or transfer, shareholder
servicing or other type of service contract may have been or may hereafter be
made, or that any such organization, or any parent or affiliate thereof, is a
Shareholder or has an interest in the Trust, or that
(ii)
any corporation, trust, association or other organization with which an
advisory, management or administration contract or principal underwriter's or
distributor's contract, or transfer, shareholder servicing or other type of
service contract may have been or may hereafter be made also has an advisory,
management or administration contract, or principal underwriter's or
distributor's contract, or transfer, shareholder servicing or other service
contract with one or more other corporations, trust, associations, or other
organizations, or has other business or interests shall not affect the validity
of any such contract or disqualify any Shareholder, Trustee or officer of the
Trust from voting upon or executing the same, or create any liability or
accountability to the Trust or its Shareholders, provided approval of each such
contract is made pursuant to the requirements of the 1940 Act.
ARTICLE
V
SHAREHOLDERS'
VOTING POWERS AND MEETINGS
SECTION
1. VOTING POWERS. Shareholders shall have power to vote only (i) for the
election or removal of Trustees as provided in Article IV, Section 1, and (ii)
with respect to such additional matters relating to the Trust as may be required
by this Declaration of Trust, the By-Laws or any registration statement of the
Trust filed with the Commission (or any successor agency) or any state, or as
the Trustees may consider necessary or desirable. Each whole Share shall be
entitled to one vote as to any matter on which it is entitled to vote and each
fractional Share shall be entitled to one vote as to any matter on which it is
entitled to vote and each fractional Share shall be entitled to a proportionate
fractional vote. There shall be no cumulative voting in the election of
Trustees. Shares may be voted in person or by proxy. A proxy with respect to
Shares held in the name of two or more persons shall be valid if executed by any
one of them unless at or prior to exercise of the proxy the Trust receives a
specific written notice to the contrary from any one of them. A proxy purporting
to be executed by or on behalf of a Shareholder shall be deemed valid unless
challenged at or prior to its exercise and the burden of proving invalidity
shall rest on the challenger. The By-Laws may provide that proxies may also, or
may instead, be given by any electronic or telecommunications device or in any
other manner. Notwithstanding anything else contained herein or in the By-Laws,
in the event a proposal by anyone other than the officers or Trustees of the
Trust is submitted to a vote of the Shareholders of the Trust, or in the event
of any proxy contest or proxy solicitation or proposal in opposition to any
proposal by the officers or Trustees of the Trust, Shares may be voted only in
person or by written proxy at a meeting. Until Shares are issued, the Trustees
may exercise all rights of Shareholders and may take any action required by law,
this Declaration of Trust or the By-Laws to be taken by the
Shareholders.
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SECTION
2. VOTING POWER AND MEETINGS. Meetings of the Shareholders may be called by the
Trustees for the purpose of electing Trustees as provided in Article IV, Section
1 and for such other purposes as may be prescribed by law, by this Declaration
of Trust or by the By-Laws. Meetings of the Shareholders may also be called by
the Trustees from time to time for the purpose of taking action upon any other
matter deemed by the Trustees to be necessary or desirable. A meeting of
Shareholders may be held at any place designated by the Trustees. Written notice
of any meeting of Shareholders shall be given or caused to be given by the
Trustees by mailing such notice at least seven (7) days before 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 or the By-Laws, a written waiver thereof, executed before
or after the meeting by such Shareholder or his or her attorney thereunto
authorized and filed with the records of the meeting, shall be deemed equivalent
to such notice.
SECTION
3. QUORUM AND REQUIRED VOTE. Except when a larger quorum is required by
applicable law, by the By-Laws or by this Declaration of Trust, forty percent
(40%) of the Shares entitled to vote shall constitute a quorum at a Shareholders
meeting. Any meeting of Shareholders may be adjourned from time to time by a
majority of the votes properly cast upon the question of adjourning a meeting to
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 for the
original meeting without further notice. When a quorum is present at any
meeting, a majority of the Shares voted shall decide any questions and a
plurality shall elect a Trustee, except when a larger vote is required by any
provision of this Declaration of Trust or the By-Laws or by applicable
law.
SECTION
4. ACTION BY WRITTEN CONSENT. Any action taken by Shareholders may be taken
without a meeting if Shareholders holding a majority of the Shares entitled to
vote on the matter (or such larger proportion thereof as shall be required by
any express provision of this Declaration of Trust, by the By-Laws or by
applicable law) and holding a majority (or such larger proportion as aforesaid)
of the Shares entitled to vote separately on the matter consent to the action in
writing and such written consents are filed with the records of the meetings of
Shareholders. Such consent shall be treated for all purposes as a vote taken at
a meeting of Shareholders.
SECTION
5. RECORD DATES. For the purpose of determining the Shareholders entitled to
vote or act at any meeting or any adjournment thereof, the Trustees may from
time to time fix a time, which shall be not more than ninety (90) days before
the date of any meeting of Shareholders, as the record date for determining the
Shareholders of the Trust 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. For the purpose of
determining the Shareholders 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 having the right to
receive such dividend or distribution. Without fixing a record date the Trustees
may for voting and/or distribution purposes close the register or transfer books
for all or any part of the period between a record date and a meeting of
Shareholders or the payment of a distribution.
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SECTION
6. ADDITIONAL PROVISIONS. The By-Laws may include further provisions for
Shareholders' votes and meetings and related matters.
ARTICLE
VI.
NET
ASSET VALUE, DISTRIBUTIONS, REPURCHASES AND REDEMPTIONS
SECTION
1. DETERMINATION OF NET ASSET VALUE, NET INCOME AND
DISTRIBUTIONS. The Trustees, in their absolute discretion, may
prescribe and shall set forth in the By-Laws or in a duly adopted vote of the
Trustees such bases and time for determining the per Share or net asset value of
the Shares or net income attributable to the Shares, or the declaration and
payment of dividends and distributions on the Shares, as they may deem necessary
or desirable.
SECTION
2. REPURCHASES. The Trust shall repurchase Shares as are offered by any
Shareholder for repurchase, upon the presentation of a proper instrument of
transfer together with a request directed to the Trust or a Person designated by
the Trust that the Trust repurchase such Shares or in accordance with such other
procedures for repurchase as the Trustees may from time to time authorize; and
the Trust will pay therefor, in cash, the net asset value thereof, in accordance
with the By-Laws and applicable law. Payment for said Shares shall be made by
the Trust to the Shareholder within seven days after the repurchase pricing
date. The obligation set forth in this Section 2 is subject to the provision
that in the event that any time the New York Stock Exchange or any other market
in which the securities owned by the Trust are principally traded (collectively,
the "Exchange") is closed for other than weekends or holidays, or if permitted
by the Commission during periods when trading on the Exchange is restricted or
during any emergency which makes it impracticable for the Trust to dispose of
the investments of the Trust or to determine fairly the value of the net assets
held or during any other period permitted by order of the Commission for the
protection of investors, such obligations may be suspended or postponed by the
Trustees. In the case of a suspension or postponement of the right of repurchase
as provided herein, the Trust shall provide notice to Shareholders of such
suspension or postponement.
SECTION
3. REDEMPTIONS ONLY AT THE OPTION OF TRUST. The Trustees may require
Shareholders to redeem Shares for any reason under terms set by the Trustees,
including, but not limited to, (i) the failure of a Shareholder to supply a tax
identification number if required to do so, or to have the minimum investment
required, or (ii) the failure of a Shareholder to pay when due for the purchase
of Shares issued to him. Any such redemption shall be effected at the redemption
price and in the manner provided in this Article VI.
SECTION
4. DISCLOSURE OF OWNERSHIP. 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 provisions
of the Internal Revenue Code of 1986, as amended (or any successor statute
thereto), or to comply with the requirements of any other taxing authority or
other applicable law.
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ARTICLE
VII.
COMPENSATION
AND LIMITATION OF LIABILITY OF TRUSTEES
SECTION
1. COMPENSATION. The Trustees as such shall be entitled to reasonable
compensation from the Trust, and they may fix the amount of such compensation.
Nothing herein shall in any way prevent the employment of any Trustee for the
advisory, management, legal, accounting, investment banking or other services
and payment for the same by the Trust.
SECTION
2. STANDARD OF CARE. The fiduciary duties of Trustees to the Trust and its
Shareholders are the same as those of the Trustees of a Delaware corporation to
the corporation and its shareholders.
SECTION
3. INDEMNIFICATION AND LIMITATION OF LIABILITY. A Trustee, when acting in such
capacity, shall not be personally liable to any Person, other than the Trust or
a Shareholder to the extent provided in this Article VII, for any act, omission
or obligation of the Trust, of such Trustee, or of any other Trustee. A Trustee
shall not be personally liable for monetary damages for breach of fiduciary duty
as a trustee except in cases (i) in which the Trustee breaches the duty of
loyalty to the Trust or its Shareholders, (ii) of an act or omission not in good
faith or that involves intentional misconduct or a knowing violation of law, or
(iii) where the Trustee derived an improper personal benefit. The Trustees shall
not be responsible or liable in any event for any neglect or wrong-doing of any
officer, agent, employee, Adviser or Principal Underwriter of the Trust, nor
shall any Trustee be responsible for the act or omission of any other Trustee.
The Trust shall indemnify each Person who is, or has been, a Trustee, a trustee,
officer, employee or agent of the Trust, any Person who is serving or has served
at the Trust's request as a Trustee, officer, trustee, employee or agent of
another organization in which the Trust has any interest as a shareholder,
creditor or otherwise to the extent and in the manner provided in the
By-Laws.
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 executed or done by or on behalf of the Trust or Trustees by
any of them in connection with the Trust shall conclusively be deemed to have
been executed or done only in or with respect to his or their capacity as
Trustee or Trustees, and such Trustee or Trustees shall not be personally liable
thereon. At the Trustees' discretion, any note, bond, contract, instrument,
certificate or undertaking made or issued by the Trustees or by any officer or
officers may give notice that the Certificate of Trust is on file in the Office
of the Secretary of State or the State of Delaware and such note, bond,
contract, instrument, certificate or undertaking may, if the Trustees so
determine, recite that the same was executed or made on behalf of the Trust or
by a Trustee or Trustees in such capacity and not individually or by an officer
or officers in such capacity and not individually and that the obligations of
such instrument are not binding upon any of them or the Shareholders
individually but are binding only on the assets and property of the Trust, and
may contain such further recital as such Person or Persons may deem
appropriate.
The
omission of any such notice or recital shall in no way operate to bind any
Trustees, officers or Shareholders individually.
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SECTION
4. TRUSTEE'S GOOD FAITH ACTION, EXPERT ADVICE, NO BOND OR SURETY. The exercise
by the Trustees of their powers and discretions hereunder shall be binding upon
everyone interested. A Trustee shall be liable to the Trust and to any
Shareholder solely for his 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. 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 nor
for failing to follow such advice. The Trustees shall not be required to give
any bond as such, nor any surety if a bond is required.
SECTION
5. 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, whether or not the Trust would have the power to indemnify him or her
against such liability under the provisions of this Article.
ARTICLE
VIII.
MISCELLANEOUS
SECTION
1. LIABILITY OF THIRD PERSON DEALING WITH TRUSTEES. No Person dealing with the
Trustees shall be bound to make any inquiry concerning the validity of any
transaction made or to be made by the Trustees or to see to the application of
any payments made or property transferred to the Trust or upon its
order.
SECTION
2. TERMINATION OF TRUST.
(a)
Unless terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be terminated at any time by vote of a
majority of the Shares entitled to vote, or by the Trustees by written notice to
the Shareholders.
(b)
Upon the requisite Shareholder vote or action by the Trustees to terminate the
Trust, after paying or otherwise providing for all charges, taxes, expenses and
liabilities, whether due or accrued or anticipated, of the Trust thereof as may
be determined by the Trustees, 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 Shares or other securities, or any
combination thereof, and distribute the proceeds to the Shareholders involved,
ratably according to the number of Shares held by the Shareholders on the date
of distribution. Thereupon, the Trust or shall terminate and the Trustees and
the Trust 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.
(c)
Upon termination of the Trust, following completion of winding up of its
business, the Trustees shall cause a certificate of cancellation of the Trust's
Certificate of Trust to be filed in accordance with the Delaware Act, which
certificate of cancellation may be signed by any one Trustee.
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SECTION
3. REORGANIZATION AND MASTER/FEEDER.
(a)
Notwithstanding anything else herein, the Trustees may, without Shareholder
approval unless such approval is required by applicable law:
(i)
cause the Trust to merge or consolidate with or into one or more trusts (or
series thereof to the extent permitted by law), partnerships, associations,
corporations or other business entities (including trusts, partnerships,
associations, corporations or other business entities created by the Trustees to
accomplish such 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, that will succeed to or assume the Trust's registration under
the 1940 Act and that is formed, organized or existing under the laws of the
United States or of a state, commonwealth, possession or colony 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; or
(iii)
cause the Trust to incorporate under the laws of Delaware. Any agreement of
merger or consolidation or exchange or certificate of merger may be signed by a
majority of the Trustees 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
governing instrument of the Trust or effect the adoption of a new instrument of
the Trust if the Trust is the surviving or resulting trust in the merger or
consolidation.
(c)
The Trustees may create one or more business trusts to which all or any part of
the assets, liabilities, profits or losses of the Trust may be transferred and
may provide for the conversion of Shares in the Trust into beneficial interests
in any such newly created trust or trusts.
(d)
Notwithstanding anything else herein, the Trustees may, without Shareholder
approval, invest all or a portion of the Trust’s assets, or dispose of all or a
portion of the Trust’s assets, 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 or
jurisdiction) (or subtrust thereof) which is classified as a partnership for
federal income tax purposes.
SECTION
4. AMENDMENTS. Except as specifically provided in this Section, the Trustees
may, without Shareholder vote, restate, amend or otherwise supplement this
Declaration of Trust. Shareholders shall have the right to vote:
(a)
on any amendment that would affect their right to vote granted in Article V,
Section 1 hereof;
(b)
on any amendment to this Section 4 Article VIII;
(c)
on any amendment for which a Shareholder vote may be required by applicable law
or by the Trust's registration statement filed with the Commission;
and
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(d)
on any amendment submitted to them by the Trustees. Notwithstanding anything
else herein, no amendment hereof shall limit the rights to indemnification
referred in Article VII, Section 3 hereof or as provided in the By-Laws with
respect to any actions or omissions of Persons covered thereby prior to such
amendment. The Trustees may, without Shareholder vote, restate, amend, or
otherwise supplement the Certificate of Trust as they deem necessary or
desirable.
SECTION
5. FILING OF COPIES, REFERENCES, HEADINGS. 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.
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.
(a)
The Trust is created under, and this Declaration of Trust is to be governed by,
and construed and enforced in accordance with, the laws of the State of
Delaware. The Trust shall be of the type commonly called a business trust, and
without limiting the provisions hereof, the Trust specifically reserves the
right to exercise any of the powers or privileges afforded to business trusts or
actions that may be engaged in by business trusts under the Delaware Act, and
the absence of a specific reference herein to any such power, privilege or
action shall not imply that the Trust may not exercise such power or privilege
or take such actions.
(b)
Notwithstanding the first sentence of Section 6(a) of this Article VIII, there
shall not be applicable to the Trust, the Trustees or this Declaration of Trust
(x) the provisions of Section 3540 of Title 12 of the Delaware Code or (y) any
provisions of the laws (statutory or common) of the State of Delaware (other
than the Delaware Act) pertaining to trusts that 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 the trust;
(iii)
the necessity for obtaining a court or other governmental approval concerning
the acquisition, holding or disposition of real or personal
property;
(iv)
fees or other sums applicable for trustees, officers, agents or employees of a
trust;
(v)
the allocation of receipts and expenditures to income or principal;
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(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 that are inconsistent with the
limitations or liabilities or authorities and powers of the Trustees set forth
or referenced in this Declaration of Trust.
SECTION
7. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
(a)
The provisions of this Declaration of Trust 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, or with other applicable laws and regulations, the
conflicting provision shall be deemed never to have constituted a part of this
Declaration of Trust; provided, however, that such determination shall not
affect any of the remaining provisions of this Declaration of Trust or render
invalid or improper any action taken or omitted prior to such
determination.
(b)
If any provision of this 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 shall not in any manner
affect such provision in any other jurisdiction or any other provision of this
Declaration of Trust in any jurisdiction.
SECTION
8. BUSINESS TRUST ONLY. It is the intention of the Trustees to create a business
trust pursuant to the Delaware Act, and thereby to create only the relationship
of Trustee and beneficial owners within the meaning of such Delaware Act between
the Trustees and each Shareholder. It is not the intention of the Trustees to
create a general partnership, limited partnership, joint stock association,
corporation, bailment, or any form of legal relationship other than a business
trust pursuant to such Delaware Act. Nothing in this Declaration of Trust shall
be construed to make the Shareholders, either by themselves or with the
Trustees, partners or members of a joint stock association.
SECTION
9. DERIVATIVE ACTIONS. 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:
(a)
The Shareholder or Shareholders must make a pre-suit demand upon the Trustees to
bring the subject action unless an effort to cause the Trustees to bring such an
action is not likely to succeed. For purposes of this Section 9(a), a demand on
the Trustees shall only be deemed not likely to succeed and therefore excused if
a majority of the Board of 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 on the Board of Trustees of the Trust or on the boards of one or more
Trusts that are under common management with or otherwise affiliated with the
Trust.
(b)
Unless a demand is not required under paragraph (a) of this Section 9,
Shareholders eligible to bring such derivative action under the Delaware Act who
hold at least 10% of the outstanding Shares of the Trust shall join in the
request for the Trustees to commence such action; and
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(c)
Unless a demand is not required under paragraph (a) of this Section 9, the
Trustees must be afforded a reasonable amount of time to consider such
Shareholder request and to investigate the basis of such claim. The Trustees
shall be entitled to retain counsel or other advisors in considering the merits
of the request and shall require an undertaking by the Shareholders making such
request to reimburse the Trust for the expense of any such advisors in the event
that the Trustees determine not to bring such action. For the purposes of this
Section 9, the Board of Trustees may designate a committee of one Trustee to
consider a Shareholder demand if necessary to create a committee with a majority
of Trustees who do not have a personal financial interest in the transaction at
issue.
SECTION
10. USE OF THE NAME "PERSIMMON GROWTH PARTNERS INVESTOR FEEDER FUND" OR
"PERSIMMON". The name "Persimmon Growth Partners Investor Feeder Fund" or
"Persimmon" and all rights to the use of the name "Persimmon Growth Partners
Investor Feeder Fund" or "Persimmon" belong to Persimmon GP, LLC (“Persimmon”),
a sponsor of the Trust. Persimmon has consented to the use by the
Trust of the identifying word "Persimmon" and has granted to the Trust a
non-exclusive license to use the name "Persimmon" as part of the name of the
Trust. In the event Persimmon, or an affiliate of Persimmon, is not appointed as
Adviser and/or Principal Underwriter or ceases to be the Adviser and/or
Principal Underwriter of the Trust, the non-exclusive license granted herein may
be revoked by Persimmon and the Trust shall cease using the name "Persimmon" as
part of its name, unless otherwise consented to by Persimmon or any successor to
its interests in such names.
IN
WITNESS WHEREOF, the Trustees named below do hereby make and enter into this
Declaration of Trust as of the 2nd day of June, 2010.
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