AGREEMENT AND DECLARATION OF TRUST
OF
CITIGROUP ALTERNATIVE INVESTMENTS TRUST
THIS AGREEMENT AND DECLARATION OF TRUST is made and entered into as of
the date set forth below by the Initial Trustee named hereunder for the purpose
of forming a Delaware statutory trust in accordance with the provisions
hereinafter set forth,
NOW, THEREFORE, having previously ratified the filing of a Certificate
of Trust with the Office of the Secretary of State of the State of Delaware, the
Initial Trustee does hereby declare that the Trustees will hold in trust all
cash, securities and other assets that the Trust now possesses or may hereafter
acquire from time to time in any manner and manage and dispose of the same upon
the following terms and conditions for the benefit of the holders of Shares in
the Trust.
ARTICLE I
Name and Definitions
Section 1. Name. This Trust shall be known as "Citigroup Alternative
Investments Trust" 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) "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;
(b) "Certificate of Trust" means the certificate of trust, as amended
or restated from time to time, filed by the Trustees in the Office of the
Secretary of State of the State of Delaware in accordance with the Delaware Act;
(c) "Class" means a class of Shares of a Series of the Trust
established in accordance with the provisions of Article III hereof;
(d) "Commission" means the Securities and Exchange Commission;
(e) "Declaration of Trust" means this Agreement and Declaration of
Trust, as amended or restated from time to time;
(f) "Delaware Act" means the Delaware Statutory Trust Act, 12 Del. C.,
3801 et seq., as amended from time to time;
(g) "ERISA" means the Employee Retirement Income Security Act of 1974
and the Rules and Regulations thereunder, all as amended from time to time;
(h) "Initial Trustee(s)" means the person or persons who have signed
this Declaration of Trust;
(i) "Manager" means a party furnishing services to the Trust or
separately to any Series pursuant to an investment management or investment
advisory agreement described in Article IV, Section 8(a) hereof;
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(j) "1940 Act" means the Investment Company Act of 1940 and the Rules
and Regulations thereunder, all as amended from time to time;
(k) "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;
(l) "Series" means each Series of Shares established and designated
under or in accordance with the provisions of Article III hereof;
(m) "Shareholder" means a beneficial owner of outstanding Shares;
(n) "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;
(o) "Trust" means the Delaware statutory trust established under the
Delaware Act by this Declaration of Trust and the filing of the Certificate of
Trust in the Office of the Secretary of State of the State of Delaware;
(p) "Trust Property" means any and all property, real or personal,
tangible or intangible, that is from time to time owned or held by or for the
account of the Trust; and
(q) "Trustees" means the Initial Trustee, and all other Persons who
may, from time to time, be duly elected or appointed to serve as Trustees in
accordance with the provisions hereof, in each case so long as such Person shall
continue in office in accordance with the terms of this Declaration of Trust,
and reference herein to a Trustee or the Trustees shall refer to such Person or
Persons in her or his or their capacity as Trustees hereunder.
ARTICLE II
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on the
business of a management investment company registered under the 1940 Act
through one or more Series investing primarily in securities, and to carry on
such other business as the Trustees may, from time to time, determine pursuant
to their authority under this Declaration of Trust.
ARTICLE III
Shares
Section 1. Division of Beneficial Interest. The beneficial interests in
the Trust may be divided into one or more Series. Each Series may be divided
into one or more Classes. Subject to the further provisions of this Article III
and any applicable requirements of the 1940 Act, the Trustees shall have full
power and authority, in their sole discretion, and without obtaining any
authorization or vote of the Shareholders of any Series or Class thereof, (i) to
divide the beneficial interests in the Trust or in each Series or Class thereof
into Shares, with or without par value as the Trustees shall determine, (ii) to
issue Shares without limitation as to number (including fractional Shares) to
such Persons and for such amount and type of consideration, including cash or
securities, at such time or times and on such terms as the Trustees may deem
appropriate, (iii) to establish and designate and to change in any manner any
Series or Class thereof and to fix such preferences, voting powers, rights,
duties and privileges and business purpose of each Series or Class thereof as
the Trustees may, from time to time, determine, which preferences, voting
powers, rights, duties and privileges may be senior or subordinate to (or in the
case of business purpose, different from) any existing Series or Class thereof
and may be limited to specified property or obligations of the Trust or profits
and losses associated with specified property or obligations of the Trust, (iv)
to divide or combine the Shares of any Series or Class thereof into a greater or
lesser number, or issue dividends in
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Shares with respect to Shares of any Series or Class, without thereby materially
changing the proportionate beneficial interest of the Shares of such Series or
Class in the assets held with respect to that Series or Class thereof, (v) to
classify or reclassify any issued Shares of any Series or Class thereof into
Shares of one or more Series or Classes thereof and (vi) to take such other
action with respect to the Shares as the Trustees may deem desirable.
Subject to the distinctions permitted among Classes or otherwise in
Shares of the same Series as established by the Trustees consistent with the
requirements of the 1940 Act, each Share of a Series of the Trust shall
represent an equal beneficial interest in the net assets of such Series, and
each holder of Shares of a Series shall be entitled to receive such holder's pro
rata share of distributions of income and capital gains, if any, made with
respect to such Series. Upon redemption of the Shares of any Series or Class
thereof, the applicable Shareholder shall be entitled to be paid solely out of
the funds and property of such Series or Class thereof of the Trust.
All references to Shares in this Declaration of Trust shall be deemed
to be Shares of any or all Series or Classes thereof, as the context may
require. All provisions herein relating to the Trust shall apply equally to each
Series of the Trust and each Class thereof, except as the context otherwise
requires.
All Shares issued hereunder, including, without limitation, Shares
issued in connection with a dividend 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 appraisal, 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,
which books shall be maintained separately for the Shares of each Series (or
Class). No certificates certifying the ownership of Shares shall be issued
except as the Trustees may otherwise determine from time to time. The Trustees
may make such rules as they consider appropriate for the issuance of Share
certificates, the transfer of Shares of each Series (or Class) and similar
matters. The record books of the Trust as kept by the Trust or any transfer or
similar agent, as the case may be, shall be conclusive as to the identity of the
Shareholders of each Series (or Class) and as to the number of Shares of each
Series (or Class) held, from time to time, by each Shareholder.
Section 3. 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 the execution and authorization thereof as may be
required by the Trustees 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 record holder of
Shares shall be deemed to be the holder of such Shares for all purposes
hereunder and neither the Trustees nor the Trust, nor any transfer agent,
shareholder servicing agent or similar agent, any officer, employee or agent of
the Trust, shall be affected by any notice of a proposed transfer.
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.
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. The
death, incapacity, dissolution, termination or bankruptcy of a Shareholder
during the existence of the Trust shall not operate to dissolve the Trust, nor
entitle the representative of any such 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. Except as specifically provided herein, no
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Shareholder shall be personally liable for the debts, liabilities, obligations
or expenses incurred by, contracted for, or otherwise existing with respect to,
the Trust or by or on behalf of any Series or Class. Every note, bond, contract
or other understanding issued by or on behalf of the Trust or Trustees relating
to the Trust or to a Series or Class may include a recitation limiting the
obligation represented thereby to the Trust or to one or more Series or Class
and its respective assets (but the omission of such a recitation shall not
operate to bind any Shareholder or Trustee of the Trust).
Section 6. Establishment and Designation of Series (or Class). Without
obtaining any authorization or vote of the Shareholders of any Series or Class
thereof (except as otherwise required by the 1940 Act), the establishment and
designation of any Series (or Class) of Shares shall be effective upon the
adoption by a majority of the then Trustees of a resolution that sets forth such
establishment and designation and the relative rights and preferences of such
Series (or Class), whether directly in such resolution or by reference to
another document including, without limitation, any registration statement of
the Trust, or as otherwise provided in such resolution.
Shares of each Series (or Class) established pursuant to this Article
III, unless otherwise provided in the resolution establishing such Series, shall
have the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series (or Class). All
consideration received by the Trust for the issue or sale of Shares of a
particular Series or Class thereof, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof from whatever source derived, including, without limitation,
any proceeds derived from the sale, exchange or liquidation of such assets, and
any funds or payments derived from any reinvestment of such proceeds in whatever
form the same may be, shall irrevocably be held with respect to that Series (or
Class) for all purposes, subject only to the rights of creditors of such Series
(or Class thereof to the extent provided below), and shall be so recorded upon
the books of account of the Trust. Such consideration, assets, income, earnings,
profits and proceeds thereof, from whatever source derived, including, without
limitation, any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of such
proceeds, in whatever form the same may be, are herein referred to as assets
held with respect to that Series (or Class thereof). In the event that there are
any assets, income, earnings, profits and proceeds thereof, funds or payments
that are not readily identifiable as assets held with respect to any particular
Series (and the Classes thereof) (collectively "General Assets"), the Trustees
shall allocate such General Assets to, between or among any one or more of the
Series (and the Classes thereof) in such manner and on such basis as the
Trustees, in their sole discretion, deem fair and equitable, and any General
Assets so allocated to a particular Series (and the Classes thereof) shall be
assets held with respect to that Series and such Classes. Each such allocation
by the Trustees shall be conclusive and binding upon the Shareholders of all
Series and Classes for all purposes. Separate and distinct records shall be
maintained for each Series (and the Classes thereof) and the assets held with
respect to each Series (and the Classes thereof) shall be held and accounted for
separately from the assets held with respect to all other Series (and the
Classes thereof) and the General Assets of the Trust not allocated to such
Series or Classes.
(b) Liabilities Attributable to a Particular Series (or Class). The
assets of the Trust held with respect to each particular Series (or Class
thereof) shall be charged exclusively with the liabilities of the Trust
attributable to that Series or Class and all expenses, costs, charges and
reserves attributable to that Series or Class. Any general liabilities of the
Trust that are not readily identifiable as being attributable to any particular
Series (and the Classes thereof) shall be allocated and charged by the Trustees
to and among any one or more of the Series (and the Classes thereof) in such
manner and on such basis as the Trustees in their sole discretion deem fair and
equitable. All liabilities, expenses, costs, charges, and reserves so charged to
a Series (and the Classes thereof) are herein referred to as "liabilities
attributable to" that Series (or Class thereof). Each allocation of liabilities,
expenses, costs, charges and reserves by the Trustees shall be conclusive and
binding upon the Shareholders of all Series and Classes for all purposes. All
liabilities attributable to a particular Series shall be enforceable against the
assets held with respect to such Series only and not against the assets of the
Trust generally or against the assets held with respect to any other Series.
Notice of this limitation on the liability of each Series shall be set forth in
the Certificate of Trust or in an amendment thereto prior to the issuance of any
Shares of a Series. To the extent that the Trustees, pursuant to Section 2 of
Article VII hereof, include a Class limitation on liability in any note, bond,
contract, instrument, certificate or undertaking made with respect to any Class,
the parties to such note, bond, contract, instrument, certificate or undertaking
shall look only to the assets of such Class in satisfaction of the liabilities
arising thereunder and not to the assets of any other Class of the applicable
Series.
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(c) Dividends, Distributions, Redemptions and Repurchases.
Notwithstanding any other provision of this Declaration of Trust, including,
without limitation, Article VI, no dividend or distribution, including, without
limitation, any distribution paid upon dissolution of the Trust or of any Series
(or Class) thereof with respect to, nor any redemption or repurchase of, the
Shares of any Series (or Class thereof) shall be effected by the Trust other
than from the assets held with respect to such Series (or Class thereof), nor
shall any Shareholder of any particular Series (or Class thereof) otherwise have
any right or claim against the assets held with respect to any other Series or
Class except to the extent that such Shareholder has such a right or claim
hereunder as a Shareholder of such other Series or Class. The Trustees shall
have full discretion, to the extent not inconsistent with the 1940 Act, to
determine which items shall be treated as income and which items as capital; and
each such determination and allocation shall be conclusive and binding upon the
Shareholders.
(d) Equality. All the Shares of each particular Series (or Class
thereof) shall represent an equal proportionate interest in the assets held with
respect to that Series (or Class thereof), and each Share of any particular
Series shall be equal to each other Share of that Series (subject to the
liabilities attributable to that Series and such rights and preferences as may
have been established and designated with respect to Classes, or otherwise, of
Shares within such Series).
(e) Fractions. Any fractional Share of a Series (or Class thereof)
shall carry proportionately all the rights and obligations of a whole Share of
that Series or Class, including rights with respect to voting, receipt of
dividends and distributions, redemption of Shares and dissolution of the Trust.
(f) Combination of Series. The Trustees shall have the authority,
without the approval of the Shareholders of any Series (or Class thereof),
unless otherwise required by applicable law, to combine the assets and
liabilities attributable to any two or more Series (or Classes) into assets and
liabilities attributable to a single Series or Class.
(g) Elimination of Series. At any time that there are no Shares
outstanding of any particular Series (or Class) previously established and
designated, the Trustees may by resolution of a majority of the Trustees abolish
that Series (or Class) and rescind the establishment and designation thereof and
may thereafter establish a new Series (or Class) with such designation and
otherwise as herein provided.
Section 7. Indemnification of Shareholders. If any Shareholder or
former Shareholder shall be exposed to liability by reason of a claim or demand
relating to such Person being or having been a Shareholder, and not because of
such Person's acts or omissions, the Shareholder or former Shareholder (or such
Person's 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 cost and expense reasonably incurred in
connection with such claim or demand, but only out of the assets held with
respect to the particular Series (or Class thereof) of Shares of which such
Person is or was a Shareholder and from or in relation to which such liability
arose. The Series (or Class thereof) may, at its option, and shall, upon request
by the Shareholder, assume the defense of any claim made against the Shareholder
for any act or obligation of such Series and satisfy any judgment thereon.
ARTICLE IV
Trustees
Section 1. Election of Trustees. Upon the issuance of beneficial
interests of the Trust, ▇▇▇▇ ▇▇▇▇▇, a natural person, as initial shareholder of
the Trust, shall elect the Trustees of the Trust; to the extent that persons so
elected are different from the Initial Trustee, such persons shall replace the
Initial Trustee as Trustees of the Trust.
Section 2. Number, Election and Tenure. The Initial Trustee shall be
▇▇▇▇ ▇▇▇▇▇. After the initial election of Trustees, the number of Trustees shall
be three or such other number as shall, from time to time, be determined by the
Trustees pursuant to Section 4 of this Article IV. Except as described above
with respect to the
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Initial Trustee, each Trustee shall serve during the continued term of the Trust
until she or he dies, resigns, is declared bankrupt or incompetent by a court of
appropriate jurisdiction, or is removed, or, if sooner, until the next meeting
of Shareholders called for the purpose of electing Trustees and until the
election and qualification of her or his successor. In the event that less than
the majority of the Trustees holding office have been elected by the
Shareholders, to the extent required by the 1940 Act, 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 her or him and
delivered to any officer of the Trust or to the secretary of any 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 for any period following her or his
resignation or removal, or any right to damages on account of such removal. The
Shareholders may elect Trustees at any meeting of Shareholders called by the
Trustees for that purpose. Any Trustee may be removed at any meeting of
Shareholders by a majority vote of the outstanding Shares of the Trust, as
defined in the 1940 Act, or, if by written consent, a vote of Shareholders
holding at least two-thirds (2/3) of the total number of votes eligible to be
cast by all Shareholders.
Section 3. Effect of Death, Resignation or Removal of a Trustee. The
death, declination to serve, 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 there shall be fewer than the designated number of Trustees,
until additional Trustees are elected or appointed as provided herein to bring
the total number of Trustees equal to the designated number, 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 Trustees then in office. In the
event of the death, declination, resignation, retirement, removal, or incapacity
of all the then Trustees within a short period of time and without the
opportunity for at least one Trustee being able to appoint additional Trustees
to replace those no longer serving, the Trust's Manager is empowered to appoint
new Trustees subject to the applicable provisions of the 1940 Act.
Section 4. Powers. Subject to the provisions of this Declaration of
Trust, the business of the Trust shall be managed by the Trustees; the Trustees
shall have full power and authority to do any and all acts and to make and
execute any and all contracts and instruments that they may consider necessary
or appropriate in connection with the management of the Trust, including the
power to engage in securities transactions of all kinds on behalf of the Trust.
Without limiting the foregoing, the Trustees may: 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; enlarge or reduce their
number; remove any Trustee with or without cause at any time by written
instrument signed by at least two-thirds of the number of Trustees prior to such
removal, specifying the date when such removal shall become effective and fill
vacancies caused by enlargement of their number or by the death, resignation or
removal of a Trustee; elect and remove, with or without cause, such officers and
appoint and terminate such agents as they consider appropriate; 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 Board of Trustees determine; 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; provide for the issuance and
distribution of Shares by the Trust directly or through one or more selling
agents or otherwise; redeem, repurchase and transfer Shares pursuant to
applicable law; declare and pay dividends and distributions to Shareholders from
the assets available therefor; and in general exercise, or delegate 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 selling agents, such authority as they consider desirable.
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 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.
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 operate as and carry out the business of an investment company,
and exercise all the powers necessary or appropriate to the conduct of such
operations;
(b) 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, purchase or write options
on, lend, enter into contracts for the future acquisition or delivery of, or
otherwise deal in or dispose of, securities, indices, currencies, commodities or
other property of every nature and kind, including, without limitation, all
types of bonds, debentures, stocks, negotiable or non-negotiable instruments,
obligations, evidences of indebtedness, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, bankers acceptances, and other
securities, commodities or contracts 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, the U.S.
Government or any foreign government or any political subdivision of the U.S.
Government or any foreign government, or any domestic or 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, or derivatives of any of the foregoing; 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;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate, lease, or
write options (including options on futures contracts) with respect to or
otherwise deal in any property rights relating to any or all of the assets of
the Trust or any Series or Class thereof;
(d) 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;
(e) To set record dates for the determination of Shareholders with
respect to various matters, which, for purposes of determining the Shareholders
of any Series (or Class) who are entitled to receive payment of any dividend or
of any other distribution shall be on or before the date for the payment of such
dividend or such other payment, as the record date or dates for determining the
Shareholders of such Series (or Class) having the right to receive such dividend
or distribution; without fixing a record date, the Trustees may for distribution
purposes close the register or transfer books for one or more Series (or
Classes) at any time prior to the payment of a distribution; nothing in this
subsection shall be construed as precluding the Trustees from setting different
record dates for different Series (or Classes);
(f) To exercise powers and rights of subscription or otherwise which in
any manner arise out of ownership of securities or other property;
(g) To hold any security or property in a form not indicating any
trust, whether in bearer, unregistered or other negotiable form, or in its own
name or in the name of a custodian or a nominee or nominees or otherwise;
(h) To consent to or participate in any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security or property
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 or property held in the Trust;
(i) To join with other security or property holders in acting through a
committee, depository, voting trustee or otherwise, and in that connection to
deposit any security or property with, or transfer any security or property to,
any such committee, depositary or trustee, and to delegate to them such power
and authority with relation to any security or property (whether or not so
deposited or transferred) as the Trustees shall deem proper,
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and to agree to pay, and to pay, such portion of the expenses and compensation
of such committee, depositary or trustee as the Trustees shall deem proper;
(j) 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;
(k) To enter into joint ventures, general or limited partnerships and
any other combinations or associations;
(l) To borrow funds or other property in the name of the Trust or any
Series thereof exclusively for Trust or the relevant Series purposes and in
connection therewith issue notes or other evidences of indebtedness; and to
mortgage and pledge the Trust Property or any part thereof to secure any or all
of such indebtedness;
(m) 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; and to mortgage and pledge the
Trust Property or any part thereof to secure any of or all of such obligations;
(n) 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, selling agents, or independent
contractors of the Trust, individually against all claims and liabilities of
every nature arising by reason of holding Shares, holding, being in 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, selling agent, 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;
(o) To adopt, establish and carry out pension, profit-sharing, Share
bonus, Share purchase, savings, thrift and other retirement, incentive and
benefit plans and trusts, 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;
(p) To enter into contracts of any kind and description;
(q) To interpret the investment policies, practices or limitations of
any Series or Class;
(r) To establish a registered office and have a registered agent in the
State of Delaware;
(s) To invest part or all of the Trust Property (or part or all of the
assets of any Series), or to dispose of part or all of the Trust Property (or
part or all of the assets of any Series) and invest the proceeds of such
disposition, in securities issued by one or more other investment companies
registered under the 1940 Act (including investment by means of transfer or part
of 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;
(t) Subject to the 1940 Act, to engage in any other lawful act or
activity in which a statutory trust organized under the Delaware Act may engage;
and
(u) In general to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary, suitable
or proper for the accomplishment of any purpose or the attainment of any object
or the furtherance of any power hereinbefore set forth, either alone or in
association with others, and to do every other act or thing incidental or
appurtenant to or growing out of or connected with the aforesaid business or
purposes, objects or powers.
8
The foregoing clauses shall be construed as objects and powers, and the
foregoing enumeration of specific powers shall not be held to limit or restrict
in any manner the general power of the Trustees. Any action by one or more of
the Trustees in their capacity as such hereunder shall be deemed an action on
behalf of the Trust or the applicable Series, and not an action in an individual
capacity.
The Trust shall not be limited to investing in obligations maturing
before the possible dissolution of the Trust or one or more of its Series or
Classes thereof. The Trust shall not in any way be bound or limited by any
present or future law or custom in regard to investment by fiduciaries. The
Trust shall not be required to obtain any court order to deal with any assets of
the Trust or take any other action hereunder.
Section 5. Payment of Expenses by the Trust. The Trustees are
authorized to pay or cause to be paid out of the principal or income of the
Trust, or partly out of the principal and partly out of income, as they deem
fair, all expenses, fees, charges, taxes and liabilities incurred or arising in
connection with the Trust, or in connection with the management thereof,
including, but not limited to, the Trustees compensation and such expenses and
charges for the services of the Trust's officers, employees, investment adviser
or manager, selling agents in respect of the Shares of other securities to be
issued by the Trust, 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,
which expenses, fees, charges, taxes and liabilities shall be allocated in
accordance with Article III, Section 6 hereof.
Section 6. Payment of Expenses by Shareholders. The Trustees shall have
the power to cause each Shareholder, or each Shareholder of any particular
Series or Class, to pay directly, at such intervals as the Trustees may
determine, in advance or arrears, for charges of the Trust's 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 7. Ownership of Assets of the Trust. The assets of the Trust
shall be held separate and apart from any assets now or hereafter held in any
capacity other than as Trustee hereunder by the Trustees. 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 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, she or he shall automatically
cease to have any right, title or interest in any of the Trust Property, and the
right, title and interest of such Trustee in the Trust Property shall vest
automatically in the remaining Trustees. Such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered.
Section 8. Service Contracts.
(a) Subject to such requirements and restrictions as may be set forth
under applicable federal or state law and in the By-Laws, including, without
limitation, on the date hereof the requirements of Section 15 of the 1940 Act,
or any successor provision, the Trustees may, at any time and from time to time,
contract for exclusive or nonexclusive investment advisory, management or
administrative services for the Trust or for any Series (or Class thereof) 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 Manager or administrator to delegate certain or
all of its duties under such contracts to qualified investment advisers or
administrators and 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 selling agent for the Shares of one or more of the
Series (or Classes) or other securities to be issued by the Trust. Every such
contract shall comply with such requirements and restrictions as may be set
forth under applicable federal or state law and in the By-Laws,
9
including, without limitation, at the date hereof the requirements of Section 15
of the 1940 Act, or any successor provision; and any such contract may contain
such other terms as the Trustees may determine.
(c) The Trustees are also empowered, at any time and from time to time,
to contract with any corporations, trusts, associations or other organizations,
appointing it or them the custodian, transfer agent or Shareholder servicing
agent for the Trust or one or more of its Series (or Classes). Every such
contract shall comply with such requirements and restrictions as may be set
forth under applicable federal or state law and in the By-Laws or stipulated by
resolution of the Trustees. The Trustees are empowered, at any time and from
time to time, to retain sub-agents (foreign or domestic) in connection with any
service provider to the Trust or one or more of its Series (or Classes).
(d) Subject to applicable law, the Trustees are further empowered, at
any time and from time to time, to contract with any entity to provide such
other services, including, without limitation, accounting and pricing services,
to the Trust or one or more of the Series (or Classes thereof), as the Trustees
determine to be in the best interests of the Trust and the applicable Series (or
Class).
(e) The fact that:
(i) any of the Shareholders, Trustees, or officers of the Trust is
a shareholder, director, officer, partner, trustee, employee, manager,
adviser, selling agent, 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 selling agent'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
selling agent's or distributor's contract, or transfer, shareholder
servicing or other type of service contract may have been or may
hereafter be made with the Trust or any Series of the Trust also has an
advisory, management or administration contract, or selling agent's
contract, or transfer, shareholder servicing or other service contract
with one or more other corporations, trusts, 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.
Section 9. Trustees and Officers as Shareholders. Any Trustee, officer
or agent of the Trust may acquire, own and dispose of Shares to the same extent
as if he or she were not a Trustee, officer or agent; and the Trustees may issue
and sell and cause to be issued and sold Shares to, and repurchase such Shares
from, any such Person or any firm or company in which such Person is interested,
subject only to the general limitations contained herein or in the By-Laws
relating to the sale and redemption of such Shares.
10
ARTICLE V
Shareholders Voting Powers and Meetings
Section 1. Voting Powers, Meetings, Notice and Record Dates. The
Shareholders shall have power to vote only (i) for the election or removal of
Trustees to the extent and as provided in Article IV, Section 2, and (ii) with
respect to such additional matters relating to the Trust as may be required by
applicable law, this Declaration of Trust, the By-Laws or any registration of
the Trust with the Commission (or any successor agency) or any state, or as the
Trustees may consider necessary or desirable. Each Shareholder shall be entitled
to one vote for each dollar of net asset value (determined as of the applicable
record date) of each Share owned by such Shareholder (number of Shares owned
times net asset value per Share) on any matter on which such Shareholder is
entitled to vote and each fractional dollar amount shall be entitled to a
proportionate fractional vote. Notwithstanding any other provision of this
Declaration of Trust, on any matter submitted to a vote of the Shareholders, all
Shares of the Trust then entitled to vote shall be voted in aggregate, except
(i) when required by the 1940 Act, Shares shall be voted by individual Series or
Class; and (ii) when the matter involves the termination of a Series or Class or
any other action that the Trustees have determined will affect only the
interests of one or more Series or Classes, then only Shareholders of such
Series or Classes shall be entitled to vote thereon. There shall be no
cumulative voting in the election of Trustees. Shares may be voted in person or
by proxy. A proxy may be given in writing. 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 one or more
Series or Classes thereof or 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. Meetings of the Shareholders
shall be called and notice thereof and record dates therefor shall be given and
set as provided in the By-Laws.
Section 2. Quorum and Required Vote. Except when a larger quorum is
required by applicable law, by the By-Laws or by this Declaration of Trust, (i)
thirty-three and one-third percent (33-1/3%) of the Shares entitled to vote
shall constitute a quorum at a Shareholders meeting and (ii) when any one or
more Series (or Classes) is to vote as a single class separate from any other
Shares, thirty-three and one-third percent (33-1/3%) of the Shares of each such
Series (or Class) entitled to vote shall constitute a quorum at a Shareholders
meeting of that Series (or Class). Except when a larger vote is required by any
provision of this Declaration of Trust or the By-Laws or by applicable law, when
a quorum is present at any meeting, a majority of the Shares voted shall decide
any questions and a plurality of the Shares voted shall elect a Trustee,
provided that where any provision of law or of this Declaration of Trust
requires that the holders of any Series shall vote as a Series (or that holders
of a Class shall vote as a Class), then a majority of the Shares of that Series
(or Class) voting on the matter (or a plurality with respect to the election of
a Trustee) shall decide that matter insofar as that Series (or Class) is
concerned.
Section 3. Additional Provisions. The By-Laws may include further
provisions for Shareholders votes and meetings and related matters.
ARTICLE VI
Net Asset Value, Distributions and Redemptions
Section 1. Determination of Net Asset Value, Net Income, and
Distributions. Subject to applicable law and Article III, Section 6 hereof, the
Trustees, in their absolute discretion, may prescribe and shall set forth in the
Registration Statement of the Trust as filed on Form N-2 or any successor form
with the Commission (the "Registration Statement of the Trust") such bases and
time or times for determining the net asset value of the Shares of any Series or
Class, the net income attributable to the Shares of any Series or Class, or the
declaration and payment of dividends and distributions on the Shares of any
Series or Class, as they may deem necessary or desirable from time to time.
11
Section 2. Redemptions and Repurchases.
(a) Except as otherwise provided in this Declaration of Trust, no
Shareholder or other person holding Shares shall have the right to require the
Trust to redeem its Shares. The Board of Trustees from time to time, in its
complete and exclusive discretion and on such terms and conditions as it may
determine (subject to the 1940 Act and other applicable law), may cause the
Trust to offer to repurchase Shares pursuant to written tenders. Each such
tender offer my be limited to Shares of one or more Series or Classes and may be
limited in amount (for example, to not more than 10% of the outstanding Shares
of a particular Series or Class). In determining whether to cause the Trust to
offer to make such repurchases, the Board of Trustees shall consider the
recommendation of the Manager of the relevant Series, and shall also consider
various business, market and economic conditions, which may include:
(i) whether any Shareholders have requested to tender Shares of a
Series or a Class to the Trust,
(ii) the liquidity of the assets of the Series or Class, including
fees and costs associated with disposing of assets managed by the
Manager,
(iii) the investment plans and working capital requirements of the
Series or Class,
(iv) the relative economies of scale of the tender offer with
respect to the size of the Series or Class,
(v) the history of the Trust in making such repurchases,
(vi) the existing conditions of the securities markets and the
economy generally, as well as political, national or international
developments or current affairs, and
(vii) the anticipated tax consequences to the Series or Class of
any such proposed repurchases.
The Board of Trustees shall cause the Trust to repurchase Shares only
pursuant to written tender offers and only on terms it determines to be fair to
the Trust and to all Shareholders, as applicable.
(b) A Shareholder who tenders for repurchase only a portion of such
Shareholder's Shares shall be required to maintain a Share balance as to the
relevant Series or Class with a net asset value equal to at least U.S.$50,000
(or such lower amount equal to the Shareholder's initial Share balance as to the
relevant Series or Class net of placement fees) after giving effect to the
repurchase. If a Shareholder tenders an amount that would cause the
Shareholder's Share balance as to a Series or Class to fall below the required
minimum following completion of the repurchase, the administrator of the Trust
(as authorized by the Board of Trustees) shall have the right either to reduce
the amount to be purchased from the Shareholder pursuant to the tender so that
the required minimum balance is maintained or to cause the Trust to repurchase
all of the Shareholder's Shares in the particular Series or Class.
(c) If the Trustees shall, at any time and in good faith, determine
that direct or indirect ownership of Shares of any Series or Class has or may
become concentrated in any Person to an extent that would disqualify any Series
as a regulated investment company under the Internal Revenue Code of 1986, as
amended (or any successor statute thereto), then the Trustees shall have the
power (but not the obligation) by such means as they deem equitable (i) to
involuntarily repurchase or redeem any number, or principal amount, of Shares of
such Person sufficient to maintain or bring the direct or indirect ownership of
Shares into conformity with the requirements for such qualification, and (ii) to
refuse to transfer or issue Shares to any Person whose acquisition of the Shares
in question would result in such disqualification. Any such repurchase or
redemption shall be effected at the redemption price provided in this Article
VI.
12
(d) 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 or regulatory authority.
(e) Subject to the requirements of the 1940 Act, the Board of Trustees
may cause the Trust to repurchase or redeem, at the price provided in this
Article VI, Shares of any Series or Class held by any Person (i) if such Person
is no longer qualified to hold such Shares in accordance with such
qualifications as may be established by the Trustees, (ii) if the net asset
value of such Shares is below the minimum investment amount which is set forth
in the Registration Statement of the Trust, (iii) if the Shares have been
transferred in violation of this Declaration of Trust or the By-Laws or have
vested in any person other than by operation of law as the result of the death,
bankruptcy, insolvency, adjudicated incompetence or dissolution of the
Shareholder, (iv) if ownership of such Shares by a Shareholder or other Person
is likely to cause the Trust or Series or Class to be in violation of, or
subject the Trust or Series or Class to additional registration or regulation
under, the securities, commodities or other laws of the United States or any
other relevant jurisdiction, (v) if continued ownership of the Shares by a
Shareholder may be harmful or injurious to the business or reputation of the
Trust, any Series or Class, the Board of Trustees, the Manager or any of their
affiliates, or may subject the Trust, the Series or Class or any Shareholder to
an undue risk of adverse tax or other fiscal or regulatory consequences, (vi) if
any of the representations and warranties made by a Shareholder or other person
in connection with the acquisition of Shares was not true when made or has
ceased to be true, (vii) with respect to a Shareholder subject to special
regulatory or compliance requirements, such as those imposed by the Bank Holding
Company Act of 1956, certain Federal Communications Commission regulations or
ERISA regulations ("Special Laws or Regulations"), if such Shareholder is likely
to be subject to additional regulatory or compliance requirements under these
Special Laws or Regulations by virtue of continuing to hold Shares, or (viii) if
otherwise deemed by the Trustees to be in the best interest of the Trust or that
particular Series or Class as a whole.
(f) Repurchases shall be effective after receipt and acceptance by the
Trust of all eligible written tenders of Shares from Shareholders and, unless
otherwise determined by the Board of Trustees from time to time, shall be
subject to the following repurchase procedures:
(i) Shareholders choosing to tender Shares for repurchase must do
so by a date specified in the notice describing the terms of the
repurchase offer (the "Notice Date"). The Notice Date generally will be
the 25th calendar day of the month prior to that containing the date as
of which the Shares to be repurchased are valued (the "Valuation
Date"). (For example, the Notice Date for a repurchase offer having a
December 31 repurchase date would be November 25.) Tenders generally
are not revocable following the Notice Date;
(ii) Promptly after accepting any tender, the Trust will give to
each Shareholder a promissory note (the "Promissory Note") entitling
the Shareholder to be paid an amount equal to the value, determined as
of the Valuation Date, of the Shareholder's Shares accepted for
repurchase; and
(iii) The Promissory Note will be non-interest bearing and
nontransferable. Payment in respect of the Promissory Note will be made
within 30 days after the Valuation Date. Although the amounts required
to be paid by the Trust under the Promissory Note will generally be
paid in cash, the Trust may under certain limited circumstances pay all
or a portion of the amounts due by an in-kind distribution of
securities.
If modification of the Trust's repurchase procedures as described above
is deemed necessary or appropriate, the Board of Trustees will adopt revised
procedures reasonably designed to provide Shareholders substantially the same
liquidity for Shares as would be available under the procedures described above.
13
ARTICLE VII
Compensation and Limitation of Liability of Trustees
Section 1. Compensation. The Trustees as such shall be entitled to
reasonable compensation from the Trust, and they may fix the amount of such
compensation. Nothing herein shall in any way prevent the employment of any
Trustee for advisory, management, legal, accounting, investment banking or other
services and payment for the same by the Trust.
Section 2. Indemnification and Limitation of Liability. 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. The Trustees shall not be responsible or liable in any event for any
neglect or wrongdoing of any officer, agent, employee, Manager or selling agent
of the Trust. The Trust (i) may indemnify an agent of the Trust or any Person
who is serving or has served at the Trust's request as an agent of another
organization in which the Trust has any interest as a shareholder, creditor or
otherwise and (ii) shall indemnify each Person who is, or has been, a Trustee,
officer or employee of the Trust and any Person who is serving or has served at
the Trust's request as a director, officer, trustee, or employee of another
organization in which the Trust has any interest as a shareholder, creditor or
otherwise, in the case of (i) and (ii), to the fullest extent consistent with
the 1940 Act and in the manner provided in the By-Laws; provided that such
indemnification shall not be available to any of the foregoing Persons in
connection with a claim, suit or other proceeding by any such Person against the
Trust or a Series (or Class) thereof.
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
appropriate Series (or Class thereof if the Trustees have included a Class
limitation on liability in the agreement with such person as provided below),
or, if the Trustees have yet to establish Series, 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 the 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 of the State of Delaware and
that a statutory limitation on liability of Series exists 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 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 or a Series thereof,
and may contain such further recital as such Person or Persons may deem
appropriate including, without limitation, a requirement, in any note, bond,
contract, instrument, certificate or undertaking made with respect to one or
more Classes of any Series that the parties thereto look only to the assets of
such Class or Classes in satisfaction of the liabilities arising thereunder. The
omission of any such notice or recital shall in no way operate to bind any
Trustees, officers or Shareholders individually.
Section 3. Trustee's Good Faith Action; Expert Advice; No Bond or
Surety. The exercise by the Trustees of their powers and discretions hereunder
shall be binding upon everyone interested. A Trustee shall be liable to the
Trust and to any Shareholder solely for her or his own willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee, and shall not be liable for errors of judgment
or mistakes of fact or law. The Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this Declaration 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.
14
Section 4. Insurance. The Trustees shall be entitled and empowered to
the fullest extent permitted by law to purchase with Trust assets insurance for
liability and for all expenses reasonably incurred or paid or expected to be
paid by a Trustee, officer, employee or agent of the Trust in connection with
any claim, action, suit or proceeding in which she or he becomes involved by
virtue of her or his capacity or former capacity with the Trust.
ARTICLE VIII
Miscellaneous
Section 1. Liability of Third Persons Dealing with Trustees. No Person
dealing with the Trustees shall be bound to make any inquiry concerning the
validity of any transaction made or to be made by the Trustees or to see to the
application of any payments made or property transferred to the Trust or upon
its order.
Section 2. Termination of Trust or Series.
(a) Unless dissolved as provided herein, the Trust shall continue
without limitation of time. The Trust may be dissolved at any time by the
Trustees by written notice to the affected Shareholders or by vote of at least
two-thirds (?) of the Shares of each Series entitled to vote, voting separately
by Series. Any Series of Shares (or Class thereof) may be dissolved at any time
by the Trustees by written notice to the affected Shareholders or by vote of at
least two-thirds (?) of the Shares of such Series or Class entitled to vote.
(b) Upon the requisite Shareholder vote or action by the Trustees to
dissolve the Trust or any one or more Series of Shares (or any Class thereof),
after paying or otherwise providing for all charges, taxes, expenses and
liabilities, whether due or accrued or anticipated (including actual or
anticipated liquidation expenses), of the Trust or of the particular Series (or
any Class 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 or of the affected Series or Class to
distributable form in cash or Shares (if any Series remain) or other securities,
or any combination thereof, and distribute the proceeds to the Shareholders of
the Series or Classes involved, ratably according to the number of Shares of
such Series or Class held by the several Shareholders of such Series or Class on
the date of distribution. Thereupon, the Trust or any affected Series (or Class
thereof) 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 or such Series or Class 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.
Section 3. Reorganization.
(a) Notwithstanding anything else herein, the Trustees may, without any
Shareholder approval or vote unless such approval or vote is required by
applicable law, in order to change the form or jurisdiction of organization of
the Trust or for any other purpose (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),
(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 reorganize
under the laws of any state or other political subdivision of the United States,
if such action is determined by the Trustees to be in the best interests of the
Trust.
(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 of Article VIII may
effect any amendment to the governing instrument of the Trust or effect the
adoption of a new trust instrument of the Trust if the Trust is the surviving or
resulting trust in the merger or consolidation.
15
(c) The Trustees may, without any Shareholder approval or vote unless
such approval or vote is required by applicable law, create one or more
statutory trusts to which all or any part of the assets, liabilities, profits or
losses of the Trust or any Series or Class thereof may be transferred and may
provide for the conversion of Shares in the Trust or any Series or Class thereof
into beneficial interests in any such newly created trust or trusts or any
series or classes thereof.
(d) Notwithstanding anything else herein, the Trustees may, without
Shareholder approval (unless required by the 1940 Act), invest all or a portion
of the Trust Property of any Series, or dispose of all or a portion of the Trust
Property of any Series, 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 not need) be a trust (formed under
the laws of the State of Delaware or any other state or jurisdiction) (or series
thereof) which is classified as a partnership for federal income tax purposes.
Notwithstanding anything else herein, the Trustees may, without Shareholder
approval unless such approval is required by the 1940 Act, cause a Series that
is organized in the master/feeder fund structure to withdraw or redeem its Trust
Property from the master fund and cause such Series to invest its Trust Property
directly in securities and other financial instruments or in another master
fund.
Section 4. Amendments. Except as specifically provided in this Section
4 of Article VIII, the Trustees may, without Shareholder vote, restate, amend or
otherwise supplement this Declaration of Trust. Shareholders shall have the
right to vote (i) on any amendment that would materially affect their right to
vote granted in Article V, Section 1 hereof, (ii) on any material amendment to
this Section 4 of Article VIII, (iii) on any amendment that may be required to
be approved by Shareholders by applicable law or by the Trust's registration
statement filed with the Commission, and (iv) on any amendment submitted to them
by the Trustees. Any amendment required or permitted to be submitted to the
Shareholders that, as the Trustees determine, shall affect the Shareholders of
one or more Series (or Classes thereof) shall be authorized by a vote of the
Shareholders of each Series or Class affected and no vote of Shareholders of a
Series or Class not affected shall be required. Notwithstanding anything else
herein, no amendment hereof without the unanimous written consent of the
Shareholders (and, to the extent required by the 1940 Act, approval by a
majority of the Trustees) shall limit the rights to insurance provided by
Article VII, Section 4 with respect to any acts or omissions of Persons covered
thereby prior to such amendment nor shall any such amendment limit the rights to
indemnification referenced in Article VII, Section 2 hereof as provided in the
By-Laws with respect to any actions or omissions of Persons covered thereby
prior to such amendment. Also notwithstanding anything else herein, no amendment
that would reduce a Shareholder's claim on the assets of the relevant Series (or
Class) may be made without the written consent of any Shareholder adversely
affected by the amendments, unless each such Shareholder has received written
notice of the amendment and any such Shareholder objecting to the amendment has
been allowed a reasonable opportunity (pursuant to any procedures as may be
prescribed by the Board of Trustees) to tender all of his, her or its Shares for
repurchase by the Trust.
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. In this instrument and in any such restatements and/or
amendments, references to this instrument, and all expressions such as "herein,"
"hereof" and "hereunder," shall be deemed to refer to this instrument as amended
or affected by 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.
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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 statutory
trust, and without limiting the provisions hereof, the Trust specifically
reserves the right to exercise any of the powers or privileges afforded to
statutory trusts or actions that may be engaged in by statutory 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 a
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 to trustees, officers, agents or employees of
a trust, (v) the allocation of receipts and expenditures to income or principal,
(vi) restrictions or limitations on the permissible nature, amount or
concentration of trust investments or requirements relating to the titling,
storage or other manner of holding of trust assets, or (vii) the establishment
of fiduciary or other standards or responsibilities or limitations on the acts
or powers of trustees 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) This Declaration of Trust is not intended to, and does not, set
forth the substantive provisions contained in the 1940 Act and the Registration
Statement of the Trust that affect numerous aspects of the conduct of the
Trust's business and of the rights, privileges and obligations of the
Shareholders. Each provision of this Declaration of Trust shall be subject to
and interpreted in a manner consistent with the applicable provisions of the
1940 Act and the Registration Statement of the Trust.
(b) The provisions of the 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, the regulated investment company
provisions of the Internal Revenue Code of 1986, as amended (or any successor
statute thereto), and the regulations thereunder, with the Delaware Act or with
other applicable laws and regulations, the conflicting provision shall be deemed
never to have constituted a part of the Declaration of Trust; provided, however,
that such determination shall not affect any of the remaining provisions of the
Declaration of Trust or render invalid or improper any action taken or omitted
prior to such determination.
(c) If any provision of the Declaration of Trust shall be held invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of the
Declaration of Trust in any jurisdiction.
Section 8. Statutory Trust Only. It is the intention of the Trustees to
create a statutory trust pursuant to the Delaware Act. It is not the intention
of the Trustees to create a general partnership, limited partnership, joint
stock association, corporation, bailment, or any form of legal relationship
other than a statutory trust pursuant to the Delaware Act. Nothing in this
Declaration 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
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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, or 10% of the
outstanding Shares of the Series or Class to which such action relates, shall
join in the request for the Trustees to commence such action.
(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 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.
IN WITNESS WHEREOF, the Initial Trustee named below does hereby make
and enter into this Declaration of Trust as of April 18, 2006.
INITIAL TRUSTEE
/s/
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▇▇▇▇ ▇▇▇▇▇, as Initial Trustee
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