SALIENT ABSOLUTE RETURN INSTITUTIONAL FUND FIRST AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST Dated: January 29, 2010
FIRST
AMENDED AND RESTATED
Dated:
January 29, 2010
TABLE OF
CONTENTS
Page
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ARTICLE I — NAME AND
DEFINITIONS
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1
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Section
l.l — Name.
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1
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Section
1.2 — Definitions.
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1
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ARTICLE II —
BENEFICIAL INTEREST
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3
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Section
2.1 — Shares of Beneficial Interest.
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3
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Section
2.2 — Issuance of Shares.
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3
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Section
2.3 — Register of Shares and Share Certificates.
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3
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Section
2.4 — Transfer of Shares.
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4
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Section
2.5 — Treasury Shares.
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4
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Section
2.6 — Establishment of Series and Classes.
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4
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Section
2.7 — Investment in the Trust.
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4
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Section
2.8 — Assets and Liabilities Belonging to Series, etc.
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5
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Section
2.9 — No Preemptive Rights.
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6
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Section
2.10 — Conversion Rights.
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6
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Section
2.11 — Legal Proceedings.
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6
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Section
2.12 — Status of Shares.
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7
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ARTICLE III — THE
TRUSTEES
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7
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Section
3.1 — Management of the Trust.
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7
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Section
3.2 — Term of Office of Trustees.
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8
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Section
3.3 — Vacancies and Appointment of Trustees.
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8
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Section
3.4 — Temporary Absence of Trustee.
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8
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Section
3.5 — Effect of Death, Resignation, Etc. of a Trustee.
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9
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Section
3.6 — Ownership of Assets of the Trust.
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9
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Section
3.7 — No Accounting.
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9
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Section
3.8 — Officers.
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9
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ARTICLE IV — POWERS
OF THE TRUSTEES
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9
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Section
4.1 — Powers.
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9
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Section
4.2 — Issuance and Repurchase of Shares.
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13
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Section
4.3 — Trustees and Officers as Shareholders.
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13
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Section
4.4 — Action by the Trustees and Committees.
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13
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Section
4.5 — Chairman of the Trustees.
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14
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Section
4.6 — Principal Transactions.
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14
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ARTICLE
V — INVESTMENT ADVISER, INVESTMENT SUB-ADVISER,
PRINCIPAL UNDERWRITER,
ADMINISTRATOR, TRANSFER AGENT, SERVICING
AGENT, FUND
ACCOUNTING, CUSTODIAN AND OTHER CONTRACTORS
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14
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Section
5.1 — Certain Contracts.
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14
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ARTICLE VI —
SHAREHOLDER VOTING POWERS AND MEETINGS
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16
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Section
6.1 — Voting.
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16
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Section
6.2 — Meetings.
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16
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Section
6.3 — Quorum and Required Vote.
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17
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Section
6.4 — Action by Written Consent.
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17
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ARTICLE VII —
DISTRIBUTIONS AND REPURCHASES
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17
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Section
7.1 — Distributions.
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17
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Section
7.2 — Transfer of Shares.
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18
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i
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Section
7.3 — Repurchases and Redemptions.
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18
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Section
7.4 — Net Asset Value.
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20
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ARTICLE VIII —
LIMITATION OF LIABILITY AND INDEMNIFICATION
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21
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Section
8.1 — Limitation of Liability.
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21
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Section
8.2 — Indemnification.
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21
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Section
8.3 — Shareholders.
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23
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ARTICLE IX —
MISCELLANEOUS
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23
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Section
9.1 — Trust Not a Partnership.
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23
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Section
9.2 — Trustees’ Good Faith Action, Expert Advice, No Bond or Surety.
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23
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Section
9.3 — Establishment of Record Dates.
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24
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Section
9.4 — Dissolution and Termination of Trust or Series.
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24
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Section
9.5 — Merger, Consolidation, Incorporation.
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25
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Section
9.6 — Filing of Copies, References, Headings, Counterparts.
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25
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Section
9.7 — Applicable Law.
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26
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Section
9.8 — Amendments.
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26
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Section
9.9 — Fiscal Year.
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27
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Section
9.10 — Provisions in Conflict with Law.
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27
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Section
9.11 — Allocation of Certain Expenses.
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27
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ii
FIRST
AMENDED AND RESTATED
THIS
FIRST AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST of Salient
Absolute Return Institutional Fund, a Delaware statutory trust (the “Trust”),
made as of January 29, 2010 by the undersigned Trustees.
WHEREAS,
A. ▇▇▇▇ ▇▇▇▇▇▇▇, as the initial trustee of the Trust, executed that certain
Agreement and Declaration of Trust, dated January 6, 2010 (“Original
Agreement”);
WHEREAS,
the Trustees desire that the beneficial interest in the trust assets be divided
into transferable shares of beneficial interest, as hereinafter provided;
and
WHEREAS,
the Trustees declare that all money and property contributed to the trust
established hereunder shall be held and managed in trust for the benefit of the
holders of the shares of beneficial interest issued hereunder and subject to the
provisions hereof;
WHEREAS,
in consideration of the foregoing, the Trustees declare that all money and
property contributed to the trust hereunder shall be held and managed in trust
under this First Amended and Restated Agreement and Declaration of Trust (“Trust
Instrument”) as herein set forth;
NOW
THEREFORE, the undersigned Trustees, intending to be legally bound, hereby
desire to amend and restate the Original Agreement, and hereby agree, as
follows.
ARTICLE
I —
NAME
AND DEFINITIONS
Section
l.l — Name.
The name
of the trust established hereby is “Salient Absolute Return Institutional Fund”
and the Trustees shall conduct the business of the Trust under that name, or any
other name or names as they may from time to time determine. However,
should the Trustees determine that the use of the name of the Trust is not
advisable, they may select such other name for the Trust as they deem proper and
the Trust may hold its property and conduct its activities under such other
name. Any name change shall become effective upon the execution by a
majority of the then Trustees of an instrument setting forth the new name and
the filing of a certificate of amendment pursuant to Section 3810(b) of the
Act. Any such instrument shall not require the approval of the
Shareholders, but shall have the status of an amendment to this Trust
Instrument. The Trust shall constitute a Delaware statutory trust in
accordance with the Act and this Trust Instrument shall constitute the governing
instrument of the Trust.
Section
1.2 — Definitions.
Wherever
used herein, unless otherwise required by the context or specifically
provided:
(a) “Act”
means the Delaware Statutory Trust Act, 12 Del.
C.
§§ 3801 et
seq., as from time to time amended;
1
(b) “By-laws”
means the By-laws referred to in Section 4.1(e) hereof, if any, as from time to
time amended;
(c) The
terms “Affiliated Person,” “Assignment,” “Commission,” “Interested Person” and
“Principal Underwriter” shall have the meanings given them in the 1940
Act. “Majority Shareholder Vote” shall have the same meaning as the
term “vote of a majority of the outstanding voting securities” is given in the
1940 Act;
(d) “Class”
means any division of Shares within a Series, which Class is or has been
established in accordance with the provisions of Article II.
(e) “Net
Asset Value” means the net asset value of each Series or Class of the Trust
determined in the manner provided in Section 7.4 hereof;
(f) “Outstanding
Shares” means those Shares recorded from time to time in the books of the Trust
or its transfer agent as then issued and outstanding, but shall not include
Shares which have been redeemed or repurchased by the Trust and which are at the
time held in the treasury of the Trust;
(g) “Series”
means a series of Shares of the Trust established in accordance with the
provisions of Section 2.6 hereof;
(h) “Shareholder”
means a record owner of Outstanding Shares of the Trust;
(i) “Shares”
means the equal proportionate transferable units of beneficial interest into
which the beneficial interest of each Series of the Trust or Class thereof shall
be divided and may include fractions of Shares as well as whole
Shares;
(j) “Trust”
refers to Salient Absolute Return Institutional Fund and reference to the Trust,
when applicable to one or more Series of the Trust, shall refer to any such
Series;
(k) “Trustee”
or “Trustees” means the person or persons who has or have signed this Trust
Instrument, so long as such person or persons shall continue in office in
accordance with the terms hereof, and all other persons who may from time to
time be duly qualified and serving as Trustees in accordance with the provisions
of Article III hereof, and reference herein to a Trustee or to the Trustees
shall refer to the individual Trustees in their capacity as Trustees
hereunder;
(1) “Trust
Property” means any and all property, real or personal, tangible or intangible,
which is owned or held by or for the account of one or more of the Trust or any
Series, or the Trustees on behalf of the Trust or any Series.
(m) “Valuation
Date” means the date on which the value of Shares being repurchased will be
determined by the Trustees in their sole discretion.
(n) The
“1940 Act” refers to the Investment Company Act of 1940 and the Rules and
Regulations thereunder, all as may be amended from time to time.
2
ARTICLE
II —
BENEFICIAL
INTEREST
Section
2.1 — Shares of Beneficial Interest.
The
beneficial interest in the Trust shall be divided into such transferable Shares
of one or more separate and distinct Series and Classes within a Series as the
Trustees shall from time to time create and establish. The number of Shares of
each Series and Class authorized hereunder is unlimited. Each Share shall have a
par value of $0.001, unless otherwise determined by the Trustees in connection
with the creation and establishment of a Series or Class. All Shares issued
hereunder, including without limitation, Class Shares issued in connection with
a dividend in Shares or a split or reverse split of Shares, shall be fully paid
and nonassessable.
Section
2.2 — Issuance of Shares.
The
Trustees in their discretion may, from time to time, without vote of the
Shareholders, issue Shares of each Series and Class to such party or parties and
for such amount and type of consideration (or for no consideration if pursuant
to a Share dividend or split-up), subject to applicable law, including cash or
securities (including Shares of a different Series or Class), at such time or
times and on such terms as the Trustees may deem appropriate, and may in such
manner acquire other assets (including the acquisitions of assets subject to,
and in connection with, the assumption of liabilities) and businesses. In
connection with any issuance of Shares, the Trustees may issue fractional Shares
and Shares held in the treasury. The Trustees may from time to time divide or
combine the Shares into a greater or lesser number without thereby changing the
proportionate beneficial interests in the Trust. The Trustees may classify or
reclassify any unissued Shares or any Shares previously issued and reacquired of
any Series or Class into one or more Series or Classes that may be established
and designated from time to time.
Any
Trustee, officer or other agent of the Trust, and any organization in which any
such person is interested, may acquire, own, hold and dispose of Shares of any
Series or Class of the Trust to the same extent as if such person were not a
Trustee, officer or other agent of the Trust; and the Trust may issue and sell
or cause to be issued and sold and may repurchase Shares of any Series or Class
from any such person or any such organization subject only to the general
limitations, restrictions or other provisions applicable to the sale or purchase
of Shares of such Series or Class generally.
Section
2.3 — Register of Shares and Share Certificates.
A
register shall be kept at the principal office of the Trust or an office of the
Trust’s transfer agent or other agent which shall contain the names and
addresses of the Shareholders of each Series and Class, the number of Shares of
that Series and Class thereof held by them respectively and a record of all
transfers thereof. As to Shares for which no certificate has been issued, such
register shall be conclusive as to who are the holders of the Shares and who
shall be entitled to receive dividends or other distributions or otherwise to
exercise or enjoy the rights of Shareholders. No Shareholder shall be entitled
to receive payment of any dividend or other distribution, nor to have notice
given to him as herein or in any By-laws provided, until he has given his
address to the transfer agent or such other officer or agent of the Trust as
shall keep the said register for entry thereon. The Trustees, in their
discretion, may authorize the issuance of share certificates and promulgate
appropriate rules and regulations as to their use. In the event that one or more
certificates are issued, which for the avoidance of doubt need not be issued,
whether in the name of a Shareholder or a nominee, such certificate or
certificates shall constitute evidence of ownership of Shares for all purposes,
including transfer, assignment or sale of such Shares, subject to such
limitations as the Trustees may, in their discretion, prescribe.
3
Section
2.4 — Transfer of Shares.
Except as
otherwise provided by the Trustees, Shares shall be transferable on the records
of the Trust only in accordance with Section 7.2 herein and only by the record
holder thereof or by his agent thereunto duly authorized in writing, upon
delivery to the Trustees or the Trust’s transfer agent of a duly executed
instrument of transfer, together with a Share certificate, if one is
outstanding, and such evidence of the genuineness of each such execution and
authorization and of such other matters as may be required by the
Trustees. Upon such delivery the transfer shall be recorded on the
register of the Trust. Until such record is made, the Shareholder of
record shall be deemed to be the holder of such Shares for all purposes
hereunder and neither the Trustees nor the Trust, nor any transfer agent or
registrar nor any officer, employee or agent of the Trust shall be affected by
any notice of the proposed transfer.
Section
2.5 — Treasury Shares.
Shares
held in the treasury shall, until reissued pursuant to Section 2.2 hereof, not
confer any voting rights on the Trustees, nor shall such Shares be entitled to
any dividends or other distributions declared with respect to the
Shares.
Section
2.6 — Establishment of Series and Classes.
The Trust
shall consist of one or more Series and Classes and separate and distinct
records shall be maintained by the Trust for each Series and
Class. The Trustees shall have full power and authority, in their
sole discretion, and without obtaining any prior authorization or vote of the
Shareholders of any Series or Class of the Trust, to establish and designate and
to change in any manner any initial or additional Series or Classes and to fix
such preferences, voting powers, rights and privileges of such Series or Classes
as the Trustees may from time to time determine, to divide or combine the Shares
or any Series or Classes into a greater or lesser number, to classify or
reclassify any issued Shares or any Series or Classes into one or more Series or
Classes of Shares, and to take such other action with respect to the Shares as
the Trustees may deem desirable. Unless another time is specified by the
Trustees, the establishment and designation of any Series or Class shall be
effective upon the adoption of a resolution by the Trustees setting forth such
establishment and designation and the preferences, powers, rights and privileges
of the Shares of such Series or Class, whether directly in such resolution or by
reference to, or approval of, another document that sets forth such relative
rights and preferences of such Series (or Class) including, without limitation,
any registration statement of the Trust, or as otherwise provided in such
resolution. The Trust may issue any number of Shares of each Series
or Class and need not issue certificates for any Shares.
All
references to Shares in this Trust Instrument shall be deemed to be Shares of
any or all Series or Classes as the context may require. All provisions herein
relating to the Trust shall apply equally to each Series and Class of the Trust
except as the context otherwise requires.
All
Shares of each Class of a particular Series shall represent an equal
proportionate interest in the assets belonging to that Series (subject to the
liabilities belonging to the Series, and, in the case of each Class, to the
liabilities belonging to that Class), and each Share of any Class of a
particular Series shall be equal to each other Share of that Class; but the
provisions of this sentence shall not restrict any distinctions permissible
under this Section 2.6.
Section
2.7 — Investment in the Trust.
The
Trustees shall accept investments in any Series of the Trust or Class, if the
Series has been divided into Classes, from such persons and on such terms as
they may from time to time authorize. At
4
the
Trustees’ discretion, such investments, subject to applicable law, may be in the
form of cash or securities in which the affected Series is authorized to invest,
valued as provided in Section 7.4 hereof. Unless the Trustees otherwise
determine, investments in a Series shall be credited to each Shareholder’s
account in the form of full Shares at the Net Asset Value per Share next
determined after the investment is received. Without limiting the generality of
the foregoing, the Trustees may, in their sole discretion: (a) fix the Net
Asset Value per Share of the initial investment; (b) impose sales or other
charges upon investments in the Trust; or (c) issue fractional
Shares.
Section
2.8 — Assets and Liabilities Belonging to Series, etc.
All
consideration received by the Trust for the issue or sale of Shares of a
particular Series, together with all assets in which such consideration is
invested or reinvested, all income, earnings, profits, and proceeds thereof,
including any proceeds derived from the sale, exchange or liquidation of such
assets, and any funds or payments derived from any reinvestment of such proceeds
in whatever form the same may be, shall be held and accounted for separately
from the other assets of the Trust and of every other Series and may be referred
to herein as “assets belonging to” that Series. The assets belonging to a
particular Series shall belong to that Series for all purposes, and to no other
Series, subject only to the rights of creditors of that Series. In addition, any
assets, income, earnings, profits or funds, or payments and proceeds with
respect thereto, which are not readily identifiable as belonging to any
particular Series shall be allocated by the Trustees between and among one or
more of the Series in such manner as the Trustees, in their sole discretion,
deem fair and equitable. If there are classes of Shares within a
Series, the assets belonging to the Series shall be further allocated to each
Class in the proportion that the “assets belonging to” the Class (calculated in
the same manner as with determination of assets “belonging to” the Series) bears
to the assets of all Classes within the Series. Each such allocation
shall be conclusive and binding upon the Shareholders of all Series and Classes
for all purposes, and such assets, income, earnings, profits or funds, or
payments and proceeds with respect thereto shall be assets belonging to that
Series or Class, as the case may be. The assets belonging to a particular Series
and Class shall be so recorded upon the books of the Trust, and shall be held by
the Trustees in trust for the benefit of the holders of Shares of that Series or
Class, as the case may be.
The
assets belonging to each Series shall be charged with the liabilities of that
Series and all expenses, costs, charges and reserves attributable to that
Series. Any general liabilities, expenses, costs, charges or reserves
of the Trust which are not readily identifiable as belonging to any particular
Series shall be allocated and charged by the Trustees between or among any one
or more of the Series in such manner as the Trustees in their sole discretion
deem fair and equitable. Each such allocation shall be conclusive and
binding upon the Shareholders of all Series for all purposes. The
liabilities, expenses, costs, charges and reserves allocated and so charged to a
Series are herein referred to as “liabilities belonging to” that
Series. Except as provided in the next sentence or otherwise required
or permitted by applicable law or any rule or order of the Commission, the
“liabilities belonging to” such Series shall be allocated to each Class of a
Series in the proportion that the assets belonging to such Class bear to the
assets belonging to all Classes in the Series. To the extent
permitted by rule or order of the Commission, the Trustees may allocate all or a
portion of any liabilities belonging to a Series to a particular Class or
Classes (collectively, “Class Expenses”) as the Trustees may from time to time
determine is appropriate. In addition, all liabilities, expenses, costs, charges
and reserves belonging to a Class shall be allocated to such Class.
Without
limitation of the foregoing provisions of this Section 2.8, but subject to the
right of the Trustees in their discretion to allocate general liabilities,
expenses, costs, charges or reserves as herein provided, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to a particular Series shall be enforceable against the assets belonging
to such Series only, and not against the assets of the Trust generally or any
other Series. Notice of this limitation on inter-
5
Series
liabilities shall be set forth in the certificate of trust of the Trust (whether
originally or by amendment) as filed or to be filed in the Office of the
Secretary of State of the State of Delaware pursuant to the Act, and upon the
giving of such notice in the certificate of trust, the statutory provisions of
Section 3804 of the Act relating to limitations on inter-Series liabilities (and
the statutory effect under Section 3804 of setting forth such notice in the
certificate of trust) shall become applicable to the Trust and each
Series. Any person extending credit to, contracting with or having
any claim against any Series may satisfy or enforce any debt, liability,
obligation or expense incurred, contracted for or otherwise existing with
respect to that Series from the assets of that Series only. No
Shareholder or former Shareholder of any Series shall have a claim on or any
right to any assets allocated or belonging to any other Series.
Similarly,
the debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to a particular Class shall be enforceable
against the assets belonging to such Class only, and not against the assets of
the Series or the Trust generally or any other Class.
Section
2.9 — No Preemptive Rights.
Shareholders
shall have no preemptive or other similar rights to subscribe to any additional
Shares or other securities issued by the Trust or the Trustees, whether of the
same or another Series or Class.
Section
2.10 — Conversion Rights.
The
Trustees shall have the authority to provide from time to time that the holders
of Shares of any Series or Class shall have the right to convert or exchange
said Shares for or into Shares of one or more other Series or Classes in
accordance with such requirements and procedures as may be established from time
to time by the Trustees.
Section
2.11 — Legal Proceedings.
No
person, other than a Trustee, who is not a Shareholder of a particular Series or
Class shall be entitled to bring any derivative action, suit or other proceeding
on behalf of or with respect to such Series or Class. No Shareholder of a Series
or a Class may maintain a derivative action with respect to such Series or Class
unless holders of a least ten percent (10%) of the outstanding Shares of such
Series or Class join in the bringing of such action. Except as otherwise
provided in Section 3816 of the Act and the foregoing provisions of this Section
2.11, all matters relating to the bringing of derivative actions in the right of
the Trust shall be governed by the General Corporation Law of the State of
Delaware relating to derivative actions, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation and the Shareholders
were shareholders of a Delaware corporation.
In
addition to the requirements set forth in Section 3816 of the Act, a Shareholder
may bring a derivative action on behalf of the Trust with respect to a Series or
Class only if the following conditions are met: (a) the Shareholder or
Shareholders must make a pre-suit demand upon the Trustees to bring the subject
action unless an effort to cause the Trustees to bring such an action is not
likely to succeed; and a demand on the Trustees shall only be deemed not likely
to succeed and therefore excused if a majority of the Trustees, or a majority of
any committee established to consider the merits of such action, has a personal
financial interest in the transaction at issue, and a Trustee shall not be
deemed interested in a transaction or otherwise disqualified from ruling on the
merits of a Shareholder demand by virtue of the fact that such Trustee receives
remuneration for his service as a Trustee of the Trust or as a trustee or
director of one or more investment companies that are under common management
with or otherwise affiliated with the Trust; and (b) unless a demand is not
required under clause (a) of this paragraph, the Trustees must be afforded a
reasonable amount of time to consider such shareholder request and
to
6
investigate
the basis of such claim; and the Trustees shall be entitled to retain counsel or
other advisers in considering the merits of the request and shall require an
undertaking by the Shareholders making such request to reimburse the Trust for
the expense of any such advisers in the event that the Trustees determine not to
bring such action. For purposes of this Section 2.11, the Trustees may designate
a committee of one Trustee to consider a Shareholder demand if necessary to
create a committee with a majority of Trustees who do not have a personal
financial interest in the transaction at issue.
Section
2.12 — Status of Shares.
Shares
shall be deemed to be personal property giving only the rights provided in this
instrument. Every Shareholder by virtue of having become a Shareholder shall be
held to have expressly assented and agreed to the terms hereof. The
death of a Shareholder during the continuance of the Trust shall not operate to
terminate the Trust nor entitle the representative of any deceased Shareholder
to an accounting or to take any action in court or elsewhere against the Trust
or the Trustees, but only to the rights of said decedent under this
Trust. Ownership of Shares shall not entitle the Shareholder to any
title in or to the whole or any part of the Trust Property or right to call for
a partition or division of the same or for an accounting, nor shall the
ownership of Shares constitute the Shareholders partners.
ARTICLE
III —
THE
TRUSTEES
Section
3.1 — Management of the Trust.
The
Trustees shall have exclusive and absolute control over the Trust Property and
over the business of the Trust to the same extent as if the Trustees were the
sole owners of the Trust Property and business in their own right, but with such
powers of delegation as may be permitted by this Trust
Instrument. The Trustees shall have power to conduct the business of
the Trust and carry on its operations in any and all of its branches and
maintain offices both within and without the State of Delaware, in any and all
states of the United States of America, in the District of Columbia, in any and
all commonwealths, territories, dependencies, colonies, or possessions of the
United States of America, and in any foreign jurisdiction and to do all such
other things and execute all such instruments as they deem necessary, proper or
desirable in order to promote the interests of the Trust although such things
are not herein specifically mentioned. To effectuate such power to
conduct the business, (1) each Trustee is vested with the same duties, powers
and authority on behalf of the Trust as are customarily vested in each director
of a Delaware corporation and (2) each Independent Trustee is vested with the
same duties, powers and authority on behalf of the Trust as are customarily
vested in each director who is not an “interested person” (as that term is
defined in the ▇▇▇▇ ▇▇▇) of a closed-end, management investment company
registered under the 1940 Act that is organized as a Delaware corporation, with
the exercise of such duties, powers and authority on behalf of the Trust to be
interpreted consistent with judicial principles applicable to directors of a
Delaware corporation, to the extent not inconsistent with the provisions
herein. Any determination as to what is in the interests of the Trust
made by the Trustees in good faith shall be conclusive. In construing
the provisions of this Trust Instrument, the presumption shall be in favor of a
grant of power to the Trustees.
The
enumeration of any specific power in this Trust Instrument shall not be
construed as limiting the aforesaid power. The powers of the Trustees
may be exercised without order of or resort to any court.
Except
for the Trustees named herein, or Trustees appointed to fill vacancies pursuant
to Section 3.3 hereof, the Trustees shall be elected by the Shareholders owning
of record a plurality of the Shares voting at a meeting of
Shareholders.
7
Prior to
a public offering of Shares there may be a sole Trustee. Thereafter,
the number of Trustees shall be determined by a written instrument signed by a
majority of the Trustees then in office, provided that the number of Trustees
shall be no less than 3 or more than 14. No reduction in the number
of Trustees shall have the effect of removing any Trustee from office prior to
the expiration of his term unless the Trustee is specifically removed pursuant
to Section 3.2(b) and (d) hereof at the time of decrease. An
individual nominated as a Trustee shall be at least 21 years of age at the time
of nomination and not under legal disability. Trustees need not own
Shares and may succeed themselves in office.
Section
3.2 — Term of Office of Trustees.
Each
Trustee shall hold office during the existence of this Trust, and until its
termination as herein provided; except that: (a) any Trustee may resign his
trust by written instrument signed by him and delivered to the Chairman,
President, Secretary, or other Trustee of the Trust, which shall take effect
upon such delivery or upon such later date as is specified therein; (b) any
Trustee may be removed, with or without cause, at any time by written
instrument, signed by a majority of the Trustees prior to such removal,
specifying the date when such removal shall become effective; (c) any
Trustee who requests in writing to be retired or who has died, become physically
or mentally incapacitated by reason of disease or otherwise, or is otherwise
unable to serve, may be retired by written instrument signed by a majority of
the other Trustees, specifying the date of his retirement; and (d) a
Trustee may be removed, with or without cause, at any meeting of the
Shareholders of the Trust by a vote of Shareholders owning at least two-thirds
of the outstanding Shares of all Series.
Section
3.3 — Vacancies and Appointment of Trustees.
In case
of the declination to serve, death, resignation, retirement, removal, physical
or mental incapacity by reason of disease or otherwise of a Trustee, or a
Trustee is otherwise unable to serve, or an increase in the number of Trustees,
a vacancy shall occur. Whenever a vacancy in the Board of Trustees
shall occur, until such vacancy is filled, the other Trustees shall have all the
powers hereunder and the certificate of the other Trustees of such vacancy shall
be conclusive. In the case of an existing vacancy, the remaining
Trustee or Trustees shall fill such vacancy by appointing such other person as
such Trustee or Trustees in their discretion shall see fit consistent with the
limitations under the 1940 Act, unless such Trustee or Trustees determine, in
accordance with Section 3.5, to decrease the size of the Board to the number of
remaining Trustees.
An
appointment of a Trustee may be made by the Trustees then in office in
anticipation of a vacancy to occur by reason of retirement, resignation or
increase in number of Trustees effective at a later date, provided that said
appointment shall become effective only at or after the effective date of said
retirement, resignation or increase in number of Trustees.
An
appointment of a Trustee shall be effective upon the acceptance of the person so
appointed to serve as Trustee, except that any such appointment in anticipation
of a vacancy shall become effective at or after the date such vacancy
occurs.
Section
3.4 — Temporary Absence of Trustee.
Any
Trustee may, by power of attorney, delegate his power for a period not exceeding
six months at any one time to any other Trustee or Trustees, provided that in no
case shall less than two Trustees personally exercise the other powers hereunder
except as herein otherwise expressly provided or unless there is only one or two
Trustees.
8
Section
3.5 — Effect of Death, Resignation, Etc. of a Trustee.
The
declination to serve, death, resignation, retirement, removal, incapacity, or
inability of the Trustees, or any one of them, shall not operate to terminate
the Trust or to revoke any existing agency created pursuant to the terms of this
Trust Instrument.
Section
3.6 — Ownership of Assets of the Trust.
Legal
title in and beneficial ownership of all of the assets of the Trust shall at all
times be considered as vested in the Trust, except that the Trustees may cause
legal title in and beneficial ownership of any Trust Property to be held by, or
in the name of one or more of the Trustees acting for and on behalf of the
Trust, or in the name of any person as nominee acting for and on behalf of the
Trust. No Shareholder shall be deemed to have a severable ownership interest in
any individual asset of the Trust or of any Series or Class, or any right of
partition or possession thereof, but each Shareholder shall have, except as
otherwise provided for herein, a proportionate undivided beneficial interest in
each Series or Class the Shares of which are owned by such Shareholders. The
Shares shall be personal property giving only the rights specifically set forth
in this Trust Instrument. The Trust, or at the determination of the Trustees,
one or more of the Trustees or a nominee acting for and on behalf of the Trust,
shall be deemed to hold legal title and beneficial ownership of any income
earned on securities of the Trust issued by any business entities formed,
organized, or existing under the laws of any jurisdiction, including the laws of
any foreign country.
Section
3.7 — No Accounting.
Except to
the extent required by the 1940 Act or, if determined to be necessary or
appropriate by the other Trustees under circumstances which would justify his or
her removal for cause, no person ceasing to be a Trustee for reasons including,
but not limited to, death, resignation, retirement, removal or incapacity (nor
the estate of any such person) shall be required to make an accounting to the
Shareholders or remaining Trustees upon such cessation.
Section
3.8 — Officers.
The
Trustees shall elect a President, a Secretary, a Treasurer, and a Chief
Compliance Officer, and may elect a Chairman or other officer of the Trust as
the Trustees deemed appropriate who shall serve at the pleasure of the Trustees
or until their successors are elected. The Trustees may elect or
appoint or may authorize the Chairman, if any, or President to appoint such
other officers or agents with such powers as the Trustees may deem to be
advisable. A Chairman shall, and any of the President, Secretary or
Treasurer may, but need not, be a Trustee.
ARTICLE
IV —
POWERS
OF THE TRUSTEES
Section
4.1 — Powers.
The
Trustees in all instances shall act as principals for and on behalf of the Trust
and their acts shall bind the Trust, and are and shall be free from the control
of the Shareholders. The business and affairs of the Trust shall be
managed by the Trustees and they shall have full power and authority to do any
and all acts and to make and execute any and all contracts and instruments that
they may consider necessary or appropriate in connection with the management of
the Trust. The Trustees shall have the full power and authority to
adopt such accounting and tax accounting practices as they consider appropriate
for the Trust and for any Class or Series.
9
The
Trustees shall have full authority and power to make any and all investments
which they, in their sole discretion, shall deem proper to accomplish the
purpose of this Trust. Subject to any applicable limitation in this
Trust Instrument, the Trustees shall have power and authority:
(a) To
invest and reinvest cash and other property, and to hold cash or other property
uninvested, and to sell, exchange, lend, pledge, mortgage, hypothecate, write
options on and lease any or all of the assets of the Trust;
(b) To
operate as and carry on the business of an investment company, and exercise all
the powers necessary and appropriate to the conduct of such operators, including
the power to invest all or any part of its assets in the securities of another
investment company;
(c) To
borrow money and in this connection issue notes or other evidence of
indebtedness; to secure borrowings by mortgaging, pledging or otherwise
subjecting as security the Trust Property; to endorse, guarantee, or undertake
the performance of an obligation, liability or engagement of any person and to
lend Trust Property;
(d) To
provide for the distribution of interests of the Trust either through a
Principal Underwriter in the manner hereinafter provided for or by the Trust
itself, or both, or otherwise pursuant to a plan of distribution of any
kind;
(e) To
adopt By-laws not inconsistent with this Trust Instrument providing for the
conduct of the business of the Trust and to amend and repeal them to the extent
that they do not reserve that right to the Shareholders, which By-laws shall be
deemed a part of this Trust Instrument and are incorporated herein by
reference;
(f) To
elect and remove such officers and appoint and terminate such agents and
contractors as they consider appropriate, any of whom may be a Trustee, and may
provide for the compensation of all of the foregoing;
(g) To
employ one or more banks, trust companies or companies that are members of a
national securities exchange or such other entities as custodians of any assets
of the Trust, subject to the 1940 Act and to any conditions set forth in this
Trust Instrument;
(h) To
retain one or more transfer agents and shareholder servicing agents, or
both;
(i) To
set record dates in the manner provided herein or in the By-laws;
(j) To
delegate such authority (which delegation may include the power to subdelegate)
as they consider desirable to any officers of the Trust and to any investment
adviser, manager, administrator, custodian, underwriter or other agent or
independent contractor;
(k) To
join with other holders of any securities or debt instruments in acting through
a committee, depository, voting trustee or otherwise, and in that connection to
deposit any security or debt instrument with, or transfer any security or debt
instrument to, any such committee, depository or trustee, and to delegate to
them such power and authority with relation to any security or debt instrument
(whether or not so deposited or transferred) as the Trustees shall deem proper
and to agree to pay, and to pay, such portion of the expenses and compensation
of such committee, depository or trustee as the Trustees shall deem
proper;
10
(1) To
enter into joint ventures, general or limited partnerships and any other
combinations or associations;
(m) To
pay pensions for faithful service, as deemed appropriate by the Trustees, and to
adopt, establish and carry out pension, profit-sharing, share bonus, share
purchase, savings, thrift and other retirement, incentive and benefit plans,
trusts and provisions, including the purchasing of life insurance and annuity
contracts as a means of providing such retirement and other benefits, for any or
all of the Trustees, officers, employees and agents of the Trust;
(n) To
the extent permitted by law, indemnify any person with whom the Trust or any
Series or Class has dealings;
(o) To
engage in and to prosecute, defend, compromise, abandon, or adjust by
arbitration, or otherwise, any actions, suits, proceedings, disputes, claims and
demands relating to the Trust, and out of the assets of the Trust or any Series
or Class thereof to pay or to satisfy any debts, claims or expenses incurred in
connection therewith, including those of litigation, and such power shall
include without limitation the power of the Trustees or any appropriate
committee thereof, in the exercise of their or its good faith business judgment,
to dismiss any action, suit, proceeding, dispute, claim or demand, derivative or
otherwise, brought by any person, including a Shareholder in its own name or the
name of the Trust, whether or not the Trust or any of the Trustees may be named
individually therein or the subject matter arises by reason of business for or
on behalf of the Trust;
(p) To
purchase and pay for entirely out of Trust Property such insurance as they may
deem necessary or appropriate for the conduct of the business of the Trust,
including, without limitation, insurance policies insuring the Trust Property
and payment of distributions and principal on its investments, and insurance
policies insuring the Shareholders, Trustees, officers, representatives,
employees, agents, investment advisers, managers, administrators, custodians,
underwriters, or independent contractors of the Trust individually against all
claims and liabilities of every nature arising by reason of holding, being or
having held any such office or position, or by reason of any action alleged to
have been taken or omitted by any such person in such capacity, including any
action taken or omitted that may be determined to constitute negligence, whether
or not the Trust would have the power to indemnify such person against such
liability;
(q) To
sell, exchange, lend, pledge, mortgage, hypothecate, write options on and lease
any or all of the assets of the Trust, subject to the provisions of Section
9.4(b) hereof;
(r) To
vote or give assent, or exercise any rights of ownership, with respect to stock
or other securities, debt instruments or property; and to execute and deliver
powers of attorney to such person or persons as the Trustees shall deem proper,
granting to such person or persons such power and discretion with relation to
securities, debt instruments or property as the Trustees shall deem
proper;
(s) To
exercise powers and rights of subscription or otherwise which in any manner
arise out of ownership of securities or debt instruments;
(t) To
hold any security or property in a form not indicating any trust, whether in
bearer, book entry, unregistered or other negotiable form; or either in the name
of the Trustees or of the Trust or in the name of a custodian, subcustodian or
other depository or a nominee or nominees or otherwise;
(u) To
establish separate and distinct Series with separately defined investment
objectives and policies and distinct investment purposes in accordance with the
provisions of Article II hereof and to
11
establish
Classes thereof having relative rights, powers and duties as they may provide
consistent with applicable law;
(v) To
consent to or participate in any plan for the reorganization, consolidation or
merger of any corporation, issuer or concern, any security or debt instrument of
which is held in the Trust; to consent to any contract, lease, mortgage,
purchase or sale of property by such corporation, issuer or concern, and to pay
calls or subscriptions with respect to any security or debt instrument held in
the Trust;
(w) To
litigate, compromise, arbitrate, or otherwise adjust claims in favor of or
against the Trust or any matter in controversy including, but not limited to,
claims for taxes;
(x) To
make distributions of income and of capital gains to Shareholders in the manner
herein provided;
(y) To
establish, from time to time, a minimum investment for Shareholders in the Trust
or in one or more Series or Classes, and to require the repurchase of the Shares
of any Shareholders whose investment is less than such minimum upon giving
notice to such Shareholder;
(z) To
cause each Shareholder, or each Shareholder of any particular Series of Class,
to pay directly, in advance or arrears, for charges of the Trust’s custodian or
transfer, shareholder servicing or similar agent, an amount fixed from time to
time by the Trustees, by setting off such charges due from such Shareholder from
declared but unpaid dividends owed such Shareholder and/or by reducing the
number of Shares in the account of such Shareholder by that number of full
and/or fractional Shares which represents the outstanding amount of such charges
due from such Shareholder;
(aa) To
establish one or more committees comprised of one or more of the Trustees, and
to delegate any of the powers of the Trustees to said committees;
(bb) To
interpret the investment policies, practices or limitations of any Series or
Class;
(cc) To
establish a registered office and have a registered agent in the State of
Delaware;
(dd) To
compensate or provide for the compensation of the Trustees, officers, advisers,
administrators, custodians, other agents, consultants, contractors and employees
of the Trust or the Trustees on such terms as they deem
appropriate;
(ee) To
invest part or all of the Trust Property (or part or all of the assets of any
Series), or to dispose of part or all of the Trust Property (or part or all of
the assets of any Series) and invest the proceeds of such disposition, in
interests issued by one or more other investment companies or pooled portfolios
(including investment by means of transfer of part or all of the Trust Property
in exchange for an interest or interests in such one or more investment
companies or pooled portfolios) all without any requirement of approval by
Shareholders. Any such other investment company or pooled portfolio may (but
need not) be a trust (formed under the laws of any state or jurisdiction) which
is classified as a partnership for federal income tax purposes; and
(ff) In
general, to carry on any other business in connection with or incidental to any
of the foregoing powers, to do everything necessary, suitable or proper for the
accomplishment of any purpose or the attainment of any object or the furtherance
of any power herein set forth, either alone or in association with others, and
to do every other act or thing incidental or appurtenant to or growing out of or
connected with the aforesaid business or purposes, objects or
powers.
12
The
foregoing clauses shall be construed both as objects and powers, and the
foregoing enumeration of specific powers shall not be held to limit or restrict
in any manner the general powers of the Trustees. Any action by one or more of
the Trustees in their capacity as such hereunder shall be deemed an action on
behalf of the Trust or the applicable Series or Class, and not an action in an
individual capacity.
No one
dealing with the Trustees shall be under any obligation to make any inquiry
concerning the authority of the Trustees, or to see to the application of any
payments made or property transferred to the Trustees or upon their
order.
Section
4.2 — Issuance and Repurchase of Shares.
The
Trustees shall have the power to issue, sell, repurchase, redeem, retire,
cancel, acquire, hold, resell, reissue, dispose of, exchange, and otherwise deal
in Shares and, subject to the provisions set forth in Article II and Article
VII, to apply to any such repurchase, retirement, cancellation or acquisition of
Shares any funds or property of the Trust, or the particular Series or Class of
the Trust, with respect to which such Shares are issued.
Section
4.3 — Trustees and Officers as Shareholders.
Any
Trustee, officer or other agent of the Trust may acquire, own and dispose of
Shares to the same extent as if such person were not a Trustee, officer or
agent; and the Trustees may issue and sell or cause to be issued and sold Shares
to and buy such Shares from any such person or any firm or company in which such
person invested, subject to the general limitations herein contained as to the
sale and purchase of such Shares.
Section
4.4 — Action by the Trustees and Committees.
The
Trustees (and any committee thereof) may act at a meeting held in person or in
whole or in part by conference telecommunications equipment, by means of which
all persons participating in the meeting can hear each other; participation in a
meeting pursuant to any such communications system shall constitute presence in
person at such meeting.
One-third,
but not less than two in number, of the Trustees shall constitute a quorum at
any meeting unless there is only one Trustee. Except as the Trustees
may otherwise determine, one-third of the members of any committee shall
constitute a quorum at any meeting. The vote of a majority of the
Trustees (or committee members) present at a meeting at which a quorum is
present shall be the act of the Trustees (or any committee
thereof).
Except as
otherwise limited by the 1940 Act, the Trustees (and any committee thereof) may
also act by written consent signed by a majority of the Trustees (or committee
members). Such consent shall be treated for all purposes as a vote
taken at a meeting of Trustees or committee members, as the case may
be.
Regular
meetings of the Trustees may be held at such places and at such times as the
Trustees may from time to time determine. Special meetings of the
Trustees (and meetings of any committee thereof) may be called orally or in
writing by the Chairman of the Board of Trustees (or the chairman of any
committee thereof) or by any two other Trustees. Notice of the time,
date and place of all meetings of the Trustees (or any committee thereof) shall
be given by the party calling the meeting to each Trustee (or committee member)
by telephone, telefax, telegram or other electronic means sent to the person’s
home or business address at least twenty-four hours in advance of the meeting or
by written notice mailed to the
13
person’s
home or business address at least seventy-two hours in advance of the
meeting. Notice of all proposed written consents of Trustees (or
committees thereof) shall be given to each Trustee (or committee member) by
telephone, telefax, telegram or other electronic means, or first class mail sent
to the person’s home or business address. Notice need not be given to
any person who attends a meeting without objecting to the lack of notice or who
executes a written consent or a written waiver of notice with respect to a
meeting. Written consents or waivers may be executed in one or more
counterparts. Execution of a written consent or waiver and delivery
thereof may be accomplished by telefax or other electronic means approved by the
Trustees. Waiver of any notice may be effected by record of such
waiver noted in the minutes of any meeting.
Section
4.5 — Chairman of the Trustees.
The
Trustees may appoint one of their number to be Chairman of the Board of
Trustees. The Chairman shall preside at all meetings of the Trustees
at which he is present and may be (but is not required to be) the chief
executive officer of the Trust.
Section
4.6 — Principal Transactions.
Except to
the extent prohibited by applicable law, the Trustees may, on behalf of the
Trust, buy any securities from or sell any securities to, or lend any assets of
the Trust to, any Trustee or officer of the Trust or any firm of which any such
Trustee or officer is a member acting as principal, or have any such dealings
with any Affiliated Person of the Trust, investment adviser, investment
sub-adviser, distributor or transfer agent for the Trust or with any Interested
Person of such Affiliated Person or other person; and the Trust may employ any
such Affiliated Person or other person, or firm or company in which such
Affiliated Person or other person is an Interested Person, as broker, legal
counsel, registrar, investment adviser, investment sub-adviser, distributor,
transfer agent, dividend disbursing agent, custodian or in any other capacity
upon customary terms.
ARTICLE
V —
INVESTMENT
ADVISER, INVESTMENT SUB-ADVISER, PRINCIPAL UNDERWRITER,
ADMINISTRATOR,
TRANSFER AGENT, SERVICING AGENT, FUND ACCOUNTING,
CUSTODIAN
AND OTHER CONTRACTORS
Section
5.1 — Certain Contracts.
Subject
to compliance with the provisions of the 1940 Act, but notwithstanding any
limitations of present and future law or custom in regard to delegation of
powers by trustees generally, the Trustees may, at any time and from time to
time and without limiting the generality of their powers and authority otherwise
set forth herein, enter into one or more contracts with any one or more
corporations, trusts, associations, partnerships, limited partnerships, other
type of organizations, or individuals to provide for the performance and
assumption of some or all of the following services, duties and responsibilities
to, for or of the Trust and/or the Trustees, and to provide for the performance
and assumption of such other services, duties and responsibilities in addition
to those set forth below as the Trustees may determine to be
appropriate:
(a) Investment
Adviser and Investment Sub-Adviser. The Trustees may in their
discretion, from time to time, enter into an investment advisory or management
contract or contracts with respect to the Trust or any Series whereby the other
party or parties to such contract or contracts shall undertake to furnish the
Trust with such management, investment advisory, statistical and research
facilities and services and such other facilities and services, if any, and all
upon such terms and conditions, as the Trustees may in their discretion
determine. Notwithstanding any other provision of this
14
Trust
Instrument, the Trustees may authorize any investment adviser (subject to such
general or specific instructions as the Trustees may from time to time adopt) to
effect purchases, sales or exchanges of portfolio securities, other investment
instruments of the Trust, or other Trust Property on behalf of the Trustees, or
may authorize any officer, agent, or Trustee to effect such purchases, sales or
exchanges pursuant to recommendations of the investment adviser (and all without
further action by the Trustees). Any such purchases, sales and exchanges shall
be deemed to have been authorized by the Trustees.
The
Trustees may authorize, subject to applicable requirements of the 1940 Act, the
investment adviser to employ, from time to time, one or more sub-advisers to
perform such of the acts and services of the investment adviser, and upon such
terms and conditions, as may be agreed upon between the investment adviser and
sub-adviser. Any reference in this Trust Instrument to the investment adviser
shall be deemed to include such sub-advisers, unless the context otherwise
requires.
(b) Principal
Underwriter. The Trustees may in their discretion from time to
time enter into an exclusive or non-exclusive underwriting contract or contracts
providing for the sale of Shares, whereby the Trust may either agree to sell
Shares to the other party to the contract or appoint such other party its sales
agent for such Shares. In either case, the contract may also provide for the
repurchase or sale of Shares by such other party as principal or as agent of the
Trust.
(c) Administrator. The
Trustees may in their discretion from time to time enter into one or more
contracts whereby the other party or parties shall undertake to furnish the
Trust with administrative services. The contract or contracts shall be on such
terms and conditions as the Trustees may in their discretion
determine.
(d) Transfer
Agent. The Trustees may in their discretion from time to time
enter into one or more transfer agency and Shareholder service contracts whereby
the other party or parties shall undertake to furnish the Trustees with transfer
agency and Shareholder services. The contract or contracts shall be on such
terms and conditions as the Trustees may in their discretion
determine.
(e) Servicing
Agent. The Trustees may in their discretion from time to time
enter into one or more contracts whereby the other party or parties shall
undertake to furnish the Trust with Trust and/or Shareholder services. The
contract or contracts shall be on such terms and conditions as the Trustees may
in their discretion determine.
(f) Fund
Accounting. The Trustees may in their discretion from time to
time enter into one or more contracts whereby the other party or parties
undertakes to handle all or any part of the Trust’s accounting responsibilities,
whether with respect to the Trust’s properties, Shareholders or
otherwise.
(g) Custodian
and Depository. The Trustees may in their discretion from time
to time enter into one or more contracts whereby the other party or parties
undertakes to act as depository for and to maintain custody of the property of
the Trust or any Series or Class and accounting records in connection
therewith.
(h) Parties
to Contract. Any contract described in this Article V hereof
may be entered into with any corporation, firm, partnership, trust or
association, although one or more of the Trustees or officers of the Trust may
be an officer, director, trustee, shareholder, or member of such other party to
the contract, and no such contract shall be invalidated or rendered void or
voidable by reason of the existence of any relationship, nor shall any person
holding such relationship be disqualified from voting on or executing the same
in his capacity as Shareholder and/or Trustee, nor shall any person holding such
relationship be liable merely by reason of such relationship for any loss or
expense to the Trust under or by reason of said contract or accountable for any
profit realized directly or indirectly therefrom, provided
15
that the
contract when entered into was not inconsistent with the provisions of this
Article V. The same person (including a firm, corporation, partnership, trust,
or association) may be the other party to contracts entered into pursuant to
this Article V, and any individual may be financially interested or otherwise
affiliated with persons who are parties to any or all of the contracts mentioned
in this Section 5.1.
ARTICLE
VI —
SHAREHOLDER
VOTING POWERS AND MEETINGS
Section
6.1 — Voting.
The
Shareholders shall have power to vote only: (a) for the election of one or more
Trustees in order to comply with the provisions of the 1940 Act (including
Section 16(a) thereof); (b) with respect to any contract entered into pursuant
to Article V to the extent required by the 1940 Act; (c) with respect to
termination of the Trust or a Series or Class thereof to the extent required by
applicable law; and (d) with respect to such additional matters relating to the
Trust as may be required by this Trust Instrument, any By-laws or any
registration of the Trust or Series as an investment company under the 1940 Act
with the Commission (or any successor agency) or as the Trustees may consider
necessary or desirable.
On each
matter submitted to a vote of Shareholders, unless the Trustees determine
otherwise, all Shares of all Series and Classes shall vote as a single class;
provided, however, that: (a) as to any matter with respect to which a separate
vote of any Series or Class is required by the 1940 Act or other applicable law
or is required by attributes applicable to any Series or Class, such
requirements as to a separate vote by that Series or Class shall apply; (b)
unless the Trustees determine that this clause (b) shall not apply in a
particular case, to the extent that a matter referred to in clause (a) above
affects more than one Series or Class and the interests of each such Series or
Class in the matter are identical, then the Shares of all such affected Series
or Classes shall vote as a single class; and (c) as to any matter which does not
affect the interests of a particular Series or Class, only the holders of Shares
of the one or more affected Series or Classes shall be entitled to
vote. Each whole Share shall be entitled to one vote as to any matter
on which it is entitled to vote, and each fractional Share shall be entitled to
a proportionate fractional vote. There shall be no cumulative voting
in the election of Trustees. Shares may be voted in person or by
proxy or in any manner provided for by the Trustees or in any
By-laws. A proxy may be given in writing, by telefax, other
electronic means or in any other manner provided for by the Trustees or in any
By-laws. Anything in this Trust Instrument to the contrary
notwithstanding, in the event a proposal by anyone other than the officers or
Trustees of the Trust is submitted to a vote of the Shareholders of the Trust or
one or more Series or Classes thereof, or in the event of any proxy contest or
proxy solicitation or proposal in opposition to any proposal by the officers or
Trustees of the Trust, Shares may be voted only in person or by written
proxy. Until Shares are issued, the Trustees may exercise all rights
of Shareholders and may take any action required or permitted by law, this Trust
Instrument or any of the By-laws of the Trust to be taken by
Shareholders.
Section
6.2 — Meetings.
Meetings
of Shareholders (including meetings involving only the holders of Shares of one
or more but less than all Series or Classes) may be called by the Trustees from
time to time to be held at such place within or without the State of Delaware,
and on such date as may be designated in the call thereof for the purpose of
taking action upon any matter as to which the vote or authority of the
Shareholders is required or permitted as provided in Section
6.1. Special meetings of the Shareholders of any Series may be called
by the Trustees. To the extent required by the 1940 Act, special
meetings of the Shareholders for the purpose of removing one or more Trustees
shall be called by the Trustees upon the written request of Shareholders owning
at least 10 percent (10%) of the Outstanding Shares entitled to
16
vote. Notice
shall be sent, postage prepaid, by mail or such other means determined by the
Trustees, at least 7 days prior to any such meeting.
In the
event the Trust or any Series invests in another investment company pursuant to
Section 12(d)(1)(E) of the 1940 Act, and such other investment company holds a
meeting of its investors, the Trust or Series shall seek instructions from its
Shareholders, without the necessity of holding a meeting or obtaining a quorum
of Shareholders, and vote all of the Trust's or any Series' shares or interests
in such other investment company proportionately to the instructions received
from the Shareholders of the Trust or such Series. For the avoidance
of doubt, any such seeking of Shareholder instructions by the Trust or any
Series also may, but need not be, sought through means of a meeting of the
Shareholders or use of a proxy, or both.
Section
6.3 — Quorum and Required Vote.
Unless a
larger percentage is required by law, by any provision of this Trust Instrument
or by the Trustees, one-third of the Shares entitled to vote in person or by
proxy on a particular matter shall be a quorum for the transaction of business
at a Shareholders’ meeting with respect to that matter. Any lesser number shall
be sufficient for adjournments. Any adjourned session or sessions may
be held without the necessity of further notice. Except when a larger
vote is required by law, by any provision of this Trust Instrument or by the
Trustees, a majority of the Shares voted in person or by proxy on a particular
matter at a meeting at which a quorum is present shall decide any questions with
respect to that matter and a plurality shall elect a Trustee.
Section
6.4 — Action by Written Consent.
Subject
to the provisions of the 1940 Act and other applicable law, any action taken by
Shareholders may be taken without a meeting if a majority of the Shares entitled
to vote on the matter (or such larger proportion thereof as shall be required by
law, by any provision of this Trust Instrument or by the Trustees) consent to
the action in writing. Such consent shall be treated for all purposes as a vote
taken at a meeting of Shareholders. The Trustees may adopt additional
rules and procedures regarding the taking of Shareholder action by written
consents.
ARTICLE
VII —
DISTRIBUTIONS
AND REPURCHASES
Section
7.1 — Distributions.
(a) The
Trustees may from time to time declare and pay dividends or other distributions
with respect to any Series or Class. The amount of such dividends or
distributions and the payment of them and whether they are in cash or any other
Trust Property shall be wholly in the discretion of the Trustees.
(b) Dividends
and other distributions may be paid or made to the Shareholders of record at the
time of declaring a dividend or other distribution or among the Shareholders of
record at such other date or time or dates or times as the Trustees shall
determine, which dividends or distributions, at the election of the Trustees,
may be paid pursuant to a standing resolution or resolutions adopted only once
or with such frequency as the Trustees may determine. All dividends and other
distributions on Shares of a particular Class shall be distributed pro rata to
the Shareholders of that Series or Class in proportion to the number of Shares
of that Series or Class they held on the record date established for such
payment, except that in connection with any dividend or distribution program or
procedure the Trustees may determine that no dividend or distribution shall be
payable on Shares as to which the Shareholder’s purchase order
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and/or
payment in the prescribed form has not been received by the time or times
established by the Trustees under such program or procedure. The Trustees may
adopt and offer to Shareholders such dividend reinvestment plans, cash dividend
payout plans or related plans as the Trustees shall deem
appropriate.
(c) Anything
in this Trust Instrument to the contrary notwithstanding, the Trustees may at
any time declare and distribute a stock dividend pro rata among the Shareholders
of a particular Series, or Class thereof, as of the record date of that Series
or Class fixed as provided in Section (b) hereof. The Trustees shall have full
discretion, to the extent not inconsistent with the 1940 Act, to determine which
items shall be treated as income and which items as capital; and each such
determination and allocation shall be conclusive and binding upon the
Shareholders.
Section
7.2 — Transfer of Shares.
(a) Any
Shares held by a Shareholder may be transferred only: (1) by operation of law
pursuant to the death, bankruptcy, insolvency, adjudicated incompetence, or
dissolution of the Shareholder; or (2) under certain limited instances set out
in this Trust Instrument, with the consent of the Trustees (which may be
withheld in the Trustees’ sole and absolute discretion). If a
Shareholder transfers Shares with the approval of the Trustees, the Trustees
will promptly take all necessary actions so that each transferee or successor to
whom or to which the Shares are transferred is admitted to the Trust as a
Shareholder. The admission of any transferee as a substituted
Shareholder will be effective upon the execution and delivery by, or on behalf
of, the substituted Shareholder of an investor application form. Each
Shareholder and transferee agrees to pay all expenses, including attorneys’ and
accountants’ fees, incurred by the Trust in connection with any
transfer. In connection with any request to transfer Shares, the
Trust may require the Shareholder requesting the transfer to obtain, at the
Shareholder’s expense, an opinion of counsel selected by the Trustees as to such
matters as the Trustees may reasonably request. If a Shareholder
transfers all of its Shares, it will not cease to be a Shareholder unless and
until the transferee is admitted to the Trust as a substituted Shareholder in
accordance with this Section 7.2(a). Any transfer of Shares permitted
under this Section 7.2(a) will be effected in accordance with the provisions of
Section 2.4 hereof. Pursuant to Section 4.1(j) hereof, the Trustees
hereby delegate to the officers of the Trust all power and authority to approve
and effect transfers of Shares pursuant to this Section 7.2(a).
(b) Each
Shareholder will indemnify and hold harmless the Trust, the Trustees, each other
Shareholder and any Affiliated Person of the Trust, the Trustees, the investment
adviser, any sub-adviser and each of the other Shareholders against all losses,
claims, damages, liabilities, costs and expenses (including legal or other
expenses incurred in investigating or defending against any losses, claims,
damages, liabilities, costs and expenses or any judgments, fines and amounts
paid in settlement), joint or several, to which these Persons may become subject
by reason of or arising from: (1) any transfer made by the Shareholder in
violation of this Section 7.2; and (2) any misrepresentation by the
transferring Shareholder or substituted Shareholder in connection with the
transfer. A Shareholder transferring Shares may be charged reasonable
expenses, including attorneys’ and accountants’ fees, incurred by the Trust in
connection with the transfer, by setting off such charges due from such
Shareholder from declared but unpaid dividends or distributions owed such
Shareholder and/or by reducing the number of shares in the account of such
Shareholder by that number of full and/or fractional Shares which represents the
outstanding amount of such charges due from such Shareholder.
Section
7.3 — Repurchases and Redemptions.
(a)
Except as otherwise provided in this Trust Instrument, no Shareholder or other
person holding Shares will have the right to withdraw or tender Shares to the
Trust for repurchase. The Trustees
18
may, from
time to time, in their complete and exclusive discretion and on terms and
conditions as they may determine, cause the Trust to repurchase Shares in
accordance with written tenders. In determining whether to cause the
Trust to repurchase Shares, pursuant to written tenders, the Trustees will
consider the following factors, among others:
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(i)
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the
recommendation of any investment
adviser;
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(ii)
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whether
any Shareholders have requested to tender Shares or portions thereof to
the Trust;
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(iii)
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the
liquidity of the Trust’s assets (including fees and costs associated with
withdrawing from investments);
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(iv)
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the
investment plans and working capital requirements of the
Trust;
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(v)
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the
relative economies of scale with respect to the size of the
Trust;
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(vi)
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the
history of the Trust in repurchasing Shares or portions
thereof;
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(vii)
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the
availability of information as to the value of the Trust’s
assets;
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(viii)
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the
economic condition of the securities markets and the economy generally as
well as political, national or international developments or current
affairs; and
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(ix)
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the
anticipated tax consequences to the Trust of any proposed repurchases of
Shares or portions thereof.
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The
Trustees will cause the Trust to repurchase Shares in accordance with written
tenders only on terms fair to the Trust and to all Shareholders.
(b) The
Trustees may cause the Trust to repurchase or redeem Shares of a Shareholder or
any person acquiring Shares from or through a Shareholder, on terms fair to the
Trust and to the Shareholder or person acquiring Shares from or through such
Shareholder, in the event that the Trustees, in their sole discretion, determine
or have reason to believe that:
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(i)
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the
Shares have been transferred in violation of Section 7.2 of this Trust
Instrument, or the Shares have vested in any person other than by
operation of law as the result of the death, dissolution, bankruptcy,
insolvency or adjudicated incompetence of the
Shareholder;
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(ii)
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ownership
of the Shares by a Shareholder or other person is likely to cause the
Trust to be in violation of, or require registration of any Shares under,
or subject the Trust to additional registration or regulation under, the
securities, commodities or other laws of the United States or any other
relevant jurisdiction;
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(iii)
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continued
ownership of the Shares may be harmful or injurious to the business or
reputation of the Trust, the Trustees or the investment adviser or any of
their Affiliated Persons, or may subject the Trust or any of
the
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19
Shareholders
to an undue risk of adverse tax or other fiscal or regulatory
consequences;
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(iv)
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any
of the representations and warranties made by a Shareholder or other
person in connection with the acquisition of the Shares was not true when
made or has ceased to be true; or
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(v)
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it
would be in the best interests of the Trust, as determined by the
Trustees, for the Trust to repurchase the
Shares.
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(c) Shares
will be repurchased at their Net Asset Value determined as of the Valuation
Date. Shareholders tendering Shares for repurchase will be asked to
give written notice of their intent to do so by the date specified in the notice
describing the terms of the applicable repurchase offer (a “Repurchase
Notice”). Shareholders who tender may not have all of the tendered
Shares repurchased by the Trust. If over-subscriptions occur, the
Trustees may, in their complete and absolute discretion, elect to repurchase
less than the full amount that a Shareholder requests to be
repurchased. If a repurchase offer is oversubscribed, the Trust may
repurchase only a pro rata portion of the amount tendered by each
Shareholder. The Trustees, in their complete and absolute discretion,
may under certain circumstances elect to postpone, suspend or terminate an offer
to repurchase Shares.
(d) The
Trust will pay the value of the Shares to be repurchased within the time
described in the Repurchase Notice. Payment of the purchase price for
Shares will generally consist of cash in an amount equal to a percentage, as may
be determined by the Trustees, of the estimated unaudited net asset value of the
Shares repurchased by the Trust determined as of the Valuation Date (after
adjusting for fees, expenses, reserves or other allocations or redemption
charges). This amount will be subject to adjustment after completion
of the annual audit of the Trust’s financial statements for the fiscal year in
which the repurchase is effected. Any balance due shall be determined
and paid after the completion of the Trust’s annual
audit. Notwithstanding anything to the contrary in this Section 7.3,
the Trustees, in their discretion, may cause the Trust to pay all or any portion
of the repurchase price in Securities in kind (or any combination of Securities
in kind and cash) having a value, determined as of the Valuation Date, equal to
the amount of the repurchase price so paid. All repurchases of Shares
will be subject to any and all conditions as the Trustees may impose in their
sole discretion. The Trustees may, in their discretion, cause the
Trust to repurchase all of a Shareholder’s Shares, if the Net Asset Value of the
Shareholder’s Shares, as a result of repurchase or transfer requests by the
Shareholder, is less than any minimum amount established by the Trustees from
time to time in their sole discretion. Subject to the procedures of
this Section 7.3, the amount due to any Shareholder whose Shares are repurchased
will be equal to the Net Asset Value of the Shareholder’s Shares as of the
Valuation Date. If all of a Shareholder’s Shares are repurchased,
that Shareholder will cease to be a Shareholder.
(e) Notwithstanding
the foregoing, the Trust may postpone payment of the repurchase price and may
suspend repurchases during any period or at any time when and to the extent
permissible under the 1940 Act.
(f) In
the event that a Shareholder shall submit a request for the repurchase of a
greater number of Shares than are then allocated to such Shareholder, such
request shall not be honored.
Section
7.4 — Net Asset Value.
The Net
Asset Value per Share (including of any Series or Class thereof) shall be the
quotient obtained by dividing the value of the net assets of the Trust (or the
applicable Series or Class (being the value of the assets belonging to that
Series or Class less the liabilities belonging to that Series or
Class))
20
by the
total number of Shares of the Trust or that Series or Class outstanding, all
determined in accordance with the methods and procedures, including without
limitation those with respect to rounding, established by the Trustees from time
to time.
ARTICLE
VIII —
LIMITATION
OF LIABILITY AND INDEMNIFICATION
Section
8.1 — Limitation of Liability.
Neither a
Trustee nor an officer of the Trust, when acting in such capacity, shall be
personally liable to any person other than the Trust or a beneficial owner for
any act, omission or obligation of the Trust, any Trustee or any officer of the
Trust. Neither a Trustee nor an officer of the Trust shall be liable
for any act or omission in his capacity as Trustee or as an officer of the
Trust, or for any act or omission of any other officer or any employee of the
Trust or of any other person or party, provided that nothing contained herein or
in the Act shall protect any Trustee or officer against any liability to the
Trust or to Shareholders to which he would otherwise be subject by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the office of Trustee or the duties of such
officer hereunder.
Section
8.2 — Indemnification.
(a) To
the fullest extent permitted by law, the Trust will, subject to Section 8.2(c)
of this Trust Instrument, indemnify each investment adviser (including for this
purpose each officer, director, member, partner, principal, employee or agent
of, or any person who controls, is controlled by or is under common control
with, an investment adviser or partner of the investment adviser, and their
executors, heirs, assigns, successors or other legal representatives) and each
Trustee (and his executors, heirs, assigns, successors or other legal
representatives) (each such person being referred to as an “indemnitee”) against
all losses, claims, damages, liabilities, costs and expenses arising by reason
of being or having been an investment adviser or Trustee of the Trust, or the
past or present performance of services to the Trust by the indemnitee, except
to the extent that the loss, claim, damage, liability, cost or expense has been
finally determined in a judicial decision on the merits from which no further
right to appeal may be taken in any such action, suit, investigation or other
proceeding to have been incurred or suffered by the indemnitee by reason of
willful misfeasance, bad faith, gross negligence, or reckless disregard of the
duties involved in the conduct of the indemnitee’s office. These losses, claims,
damages, liabilities, costs and expenses include, but are not limited to,
amounts paid in satisfaction of judgments, in compromise, or as fines or
penalties, and counsel fees and expenses incurred in connection with the defense
or disposition of any action, suit, investigation or other proceeding, whether
civil or criminal, before any judicial, arbitral, administrative or legislative
body, in which the indemnitee may be or may have been involved as a party or
otherwise, or with which such indemnitee may be or may have been threatened,
while in office or thereafter. The rights of indemnification provided under this
Section 8.2 are not to be construed so as to provide for indemnification of an
indemnitee for any liability (including liability under U.S. federal securities
laws which, under certain circumstances, impose liability even on persons that
act in good faith) to the extent (but only to the extent) that indemnification
would be in violation of applicable law, but will be construed so as to
effectuate the applicable provisions of this Section 8.2.
(b) Expenses,
including counsel fees and expenses, incurred by any indemnitee (but excluding
amounts paid in satisfaction of judgments, in compromise, or as fines or
penalties) may be paid from time to time by the Trust in advance of the final
disposition of any action, suit, investigation or other proceeding upon receipt
of an undertaking by or on behalf of the indemnitee to repay to the Trust
amounts paid if a determination is made that indemnification of the expenses is
not authorized under Section 8.2(a) of this Trust Instrument, so long as (1) the
indemnitee provides security for the undertaking, (2) the Trust
21
is
insured by or on behalf of the indemnitee against losses arising by reason of
the indemnitee’s failure to fulfill his, her or its undertaking, or (3) a
majority of the Independent Trustees (excluding any Trustee who is either
seeking advancement of expenses under this Trust Instrument or is or has been a
party to any other action, suit, investigation or other proceeding involving
claims similar to those involved in the action, suit, investigation or
proceeding giving rise to a claim for advancement of expenses under this Trust
Instrument) or independent legal counsel in a written opinion determines, based
on a review of readily available facts (as opposed to a full trial-type
inquiry), that reason exists to believe that the indemnitee ultimately will be
entitled to indemnification.
(c) As
to the disposition of any action, suit, investigation or other proceeding
(whether by a compromise payment, pursuant to a consent decree or otherwise)
without an adjudication or a decision on the merits by a court, or by any other
body before which the proceeding has been brought, that an indemnitee is liable
to the Trust or its Shareholders by reason of willful misfeasance, bad faith,
gross negligence, or reckless disregard of the duties involved in the conduct of
the indemnitee’s office, indemnification will be provided in accordance with
Section 8.2(a) of this Trust Instrument if (1) approved as in the best
interests of the Trust by a majority of the Independent Trustees (excluding any
Trustee who is either seeking indemnification under this Trust Instrument or is
or has been a party to any other action, suit, investigation or proceeding
involving claims similar to those involved in the action, suit, investigation or
proceeding giving rise to a claim for indemnification under this Trust
Instrument) upon a determination, based upon a review of readily available facts
(as opposed to a full trial-type inquiry), that the indemnitee acted in good
faith and in the reasonable belief that the actions were in the best interests
of the Trust and that the indemnitee is not liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross negligence, or
reckless disregard of the duties involved in the conduct of the indemnitee’s
office, or (2) the Trustees secure a written opinion of independent legal
counsel, based upon a review of readily available facts (as opposed to a full
trial-type inquiry), to the effect that indemnification would not protect the
indemnitee against any liability to the Trust or its Shareholders to which the
indemnitee would otherwise be subject by reason of willful misfeasance, bad
faith, gross negligence, or reckless disregard of the duties involved in the
conduct of the indemnitee’s office.
(d) Any
indemnification or advancement of expenses made in accordance with this Section
8.2 will not prevent the recovery from any indemnitee of any amount if the
indemnitee subsequently is determined in a final judicial decision on the merits
in any action, suit, investigation or proceeding involving the liability or
expense that gave rise to the indemnification or advancement of expenses to be
liable to the Trust or its Shareholders by reason of willful misfeasance, bad
faith, gross negligence, or reckless disregard of the duties involved in the
conduct of the indemnitee’s office. In any suit brought by an
indemnitee to enforce a right to indemnification under this Section 8.2, it will
be a defense that the indemnitee has not met the applicable standard of conduct
described in this Section 8.2. In any suit in the name of the Trust
to recover any indemnification or advancement of expenses made in accordance
with this Section 8.2, the Trust will be entitled to recover the expenses upon a
final adjudication from which no further right of appeal may be
taken. In any suit brought to enforce a right to indemnification or
to recover any indemnification or advancement of expenses made in accordance
with this Section 8.2, the burden of proving that the indemnitee is not entitled
to be indemnified, or to any indemnification or advancement of expenses, under
this Section 8.2 will be on the Trust (or any Shareholder acting derivatively or
otherwise on behalf of the Trust or its Shareholders).
(e) An
indemnitee may not satisfy any right of indemnification or advancement of
expenses granted in this Section 8.2 or to which he, she or it may otherwise be
entitled except out of the assets of the Trust, and no Shareholders will be
personally liable with respect to any such claim for indemnification or
advancement of expenses.
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(f) The
rights of indemnification provided in this Section 8.2 will not be exclusive of
or affect any other rights to which any person may be entitled by contract or
otherwise under law. Nothing contained in this Section 8.2 will
affect the power of the Trust to purchase and maintain liability insurance on
behalf of any Trustee, the investment adviser or other person.
Section
8.3 — Shareholders.
No
Shareholder of the Trust or of any Series or Class shall be personally liable
for the debts, liabilities, obligations and expenses incurred by, contracted
for, or otherwise existing with respect to, the Trust or by or on behalf of any
Series or Class. The Trustees shall have no power to bind any
Shareholder personally or to call upon any Shareholder for the payment of any
sum of money or assessment whatsoever other than such as the Shareholder may at
any time personally agree to pay pursuant to terms hereof or by way of
subscription for any Shares or otherwise.
In case
any Shareholder or former Shareholder of any Series or Class shall be held to be
personally liable solely by reason of his being or having been a Shareholder of
such Series or Class and not because of his acts or omissions or for some other
reason, the Shareholder or former Shareholder (or his heirs, executors,
administrators or other legal representatives, or, in the case of a corporation
or other entity, its corporate or other general successor) shall be entitled out
of the assets belonging to the applicable Series or Class to be held harmless
from and indemnified against all loss and expense arising from such
liability. The Trust, on behalf of the affected Series, shall, upon
request by the Shareholder, assume the defense of any claim made against the
Shareholder for any act or obligation of the Series or Class and satisfy any
judgment thereon from the assets of the Series or Class. The
indemnification and reimbursement required by the preceding sentence shall be
made only out of assets of the one or more Series or Classes whose Shares were
held by said Shareholder at the time the act or event occurred which gave rise
to the claim against or liability of said Shareholder. The rights
accruing to a Shareholder under this Section shall not impair any other right to
which such Shareholder may be lawfully entitled, nor shall anything herein
contained restrict the right of the Trust or any Series or Class thereof to
indemnify or reimburse a Shareholder in any appropriate situation even though
not specifically provided herein.
ARTICLE
IX —
MISCELLANEOUS
Section
9.1 — Trust Not a Partnership.
It is
hereby expressly declared that a trust and not a partnership is created
hereby. All persons extending credit to, contracting with or having
any claim against any Series of the Trust or any Class within any Series shall
look only to the assets of such Series or Class for payment under such credit,
contract or claim; and neither the Shareholders nor the Trustees, nor any of the
Trust’s officers, employees or agents, whether past, present or future, shall be
personally liable therefor. Every note, bond, contract or other
undertaking issued by or on behalf of the Trust or the Trustees relating to the
Trust or to a Series or Class shall include a recitation limiting the
obligations represented thereby to the Trust or to one or more Series or Classes
and its or their assets (but the omission of such a recitation shall not operate
to bind any Shareholder, Trustee, officer, employee or agent of the
Trust).
Section
9.2 — Trustees’ Good Faith Action, Expert Advice, No Bond or
Surety.
The
exercise by the Trustees of their powers and discretions hereunder shall be
binding upon everyone interested. Subject to the provisions of Article VIII: (i)
the Trustees shall not be responsible or liable in any event for any neglect or
wrongdoing of any officer, agent, employee, consultant, adviser, administrator,
distributor or principal underwriter, custodian or transfer, dividend
disbursing, Shareholder
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servicing
or accounting agent of the Trust, nor shall any Trustee be responsible for the
act or omission of any other Trustee; (ii) the Trustees may take advice of
counsel or other experts with respect to the meaning and operation of this Trust
Instrument and their duties as Trustees, and shall be under no liability for any
act or omission in accordance with such advice or for failing to follow such
advice; and (iii) in discharging their duties, the Trustees, when acting in good
faith, shall be entitled to rely upon the books of account of the Trust and upon
written reports made to the Trustees by any officer appointed by them, any
independent public accountant, and (with respect to the subject matter of the
contract involved) any officer, partner or responsible employee of a contracting
party appointed by the Trustees. The Trustees as such shall not be
required to give any bond or surety or any other security for the performance of
their duties.
Section
9.3 — Establishment of Record Dates.
The
Trustees may close the Share transfer books of the Trust for a period not
exceeding one hundred twenty (120) days preceding the date of any meeting of
Shareholders, or the date for the payment of any dividends or other
distributions, or the date for the allotment of rights, or the date when any
change or conversion or exchange of Shares shall go into effect; or in lieu of
closing the stock transfer books as aforesaid, the Trustees may fix in advance a
date, not exceeding one hundred twenty (120) days preceding the date of any
meeting of Shareholders, or the date for payment of any dividend or other
distribution, or the date for the allotment of rights, or the date when any
change or conversion or exchange of Shares shall go into effect, as a record
date for the determination of the Shareholders entitled to notice of, and to
vote at, any such meeting, or entitled to receive payment of any such dividend
or other distribution, or to any such allotment of rights, or to exercise the
rights in respect of any such change, conversion or exchange of Shares, and in
such case such Shareholders and only such Shareholders as shall be Shareholders
of record on the date so fixed shall be entitled to such notice of, and to vote
at, such meeting, or to receive payment of such dividend or other distribution,
or to receive such allotment or rights, or to exercise such rights, as the case
may be, notwithstanding any transfer of any Shares on the books of the Trust
after any such record date fixed as aforesaid.
Section
9.4 — Dissolution and Termination of Trust or Series.
(a) This
Trust shall continue without limitation of time but subject to the provisions of
sub-sections (b) and (c) of this Section 9.4.
(b) Notwithstanding
anything in Section 9.5 to the contrary, the Trustees may without Shareholder
approval (unless such approval is required by the ▇▇▇▇ ▇▇▇) in dissolution of
the Trust or an applicable Series or Class liquidate, reorganize or dissolve the
Trust or an applicable Series or Class in any manner or fashion not inconsistent
with applicable law, including, without limitation:
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(i)
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sell
and convey all or substantially all of the assets of the Trust or any
Series or Class to another trust, partnership, limited liability company,
association or corporation, or to a separate Series or Class of shares
thereof, organized under the laws of any state or jurisdiction, for
adequate consideration which may include the assumption of all outstanding
obligations, taxes and other liabilities, accrued or contingent, of the
Trust or any Series or Class, and which may include shares of beneficial
interest, stock or other ownership interests of such trust, partnership,
limited liability company, association or corporation or of a series
thereof; or
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(ii)
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at
any time sell and convert into money all of the assets of the Trust or any
Series or Class.
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Following
a sale or conversion in accordance with the foregoing sub-section 9.4(b)(i) or
(ii), and upon making reasonable provision, in the determination of the
Trustees, for the payment of all liabilities of the Trust or the affected Series
or Class as required by applicable law, by such assumption or otherwise, the
Shareholders of each Class of a Series involved in such sale or conversion shall
be entitled to receive, as a Class, when and as declared by the Trustees, the
excess of the assets belonging to that Series that are allocated to such Class
over the liabilities belonging to that Series that are allocated to such Class.
The assets so distributable to the Shareholders of any particular Class of a
Series shall be distributed among such Shareholders in proportion to the number
of Shares of that Class held by them and recorded on the books of the Trust. In
the event a Series is not divided into Classes, the foregoing provisions shall
be applied on a Series by Series basis.
(c) Upon
completion of the distribution of the remaining proceeds or the remaining assets
as provided in sub-section (b), the Trust (in the case of a sale or conversion
with respect to the Trust as a whole or the last remaining Series) or any
affected Series or Class shall terminate and the Trustees and the Trust or any
affected Series or Class shall be discharged of any and all further liabilities
and duties hereunder and the right, title and interest of all parties with
respect to the Trust or such affected Series or Class shall be cancelled and
discharged.
Upon
termination of the Trust, following completion of winding up of its business,
the Trustees shall cause a certificate of cancellation of the Trust’s
certificate of trust to be filed in accordance with the Act, which certificate
of cancellation may be signed by any one Trustee.
Section
9.5 — Merger, Consolidation, Incorporation.
Anything
in this Trust Instrument to the contrary notwithstanding, the Trustees, in order
to change the form of organization and/or domicile of the Trust, may, without
prior Shareholder approval: (i) cause the Trust to merge or consolidate
with or into one or more trusts, partnerships, limited liability companies,
associations or corporations which is or are formed, organized or existing under
the laws of a state, commonwealth, possession or colony of the United States; or
(ii) cause the Trust to incorporate under the laws of Delaware. Any
agreement of merger or consolidation or certificate of merger may be signed by a
majority of the Trustees. Pursuant to and in accordance with the provisions of
Section 3815(f) of the Act, and notwithstanding anything to the contrary
contained in this Trust Instrument, an agreement of any merger or consolidation
approved in accordance with this Section 9.5 may effect any amendment to the
Trust Instrument or effect the adoption of a new trust instrument of the Trust
if it is the surviving or resulting trust in the merger or
consolidation. Any merger or consolidation of the Trust other than as
described in the foregoing provisions of this Section 9.5 shall, in addition to
the approval of the Trustees, require a Majority Shareholder Vote, except as
otherwise permitted by the 1940 Act or other applicable laws and
regulations. Nothing in this Section 9.5 shall require, however,
Shareholder approval of any transaction whereby the Trust or any Series thereof
acquires or assumes all or any part of the assets and liabilities of any other
entity.
Section
9.6 — Filing of Copies, References, Headings, Counterparts.
The
original or a copy of this Trust Instrument and of each amendment hereof or
Trust Instrument supplemental hereto shall be kept at the office of the Trust
where it may be inspected by any Shareholder. Anyone dealing with the
Trust may rely on a certificate by an officer or Trustee of the Trust as to
whether or not any such amendments or supplements have been made and as to any
matters in connection with the Trust hereunder, and with the same effect as if
it were the original, may rely on a copy certified by an
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officer
or Trustee of the Trust to be a copy of this Trust Instrument or of any such
amendment or supplemental Trust Instrument. The Trustees hereby
authorize and direct a Certificate of Trust to be executed and filed with the
Office of the Secretary of State of the State of Delaware in accordance with the
Act.
In this
Trust Instrument or in any such amendment or supplemental Trust Instrument,
references to this Trust Instrument, and all expressions like “herein,” “hereof”
and “hereunder,” shall be deemed to refer to this Trust Instrument as amended or
affected by any such supplemental Trust Instrument. All expressions
like “his,” “he” and “him,” shall be deemed to include the feminine and neuter,
as well as masculine, genders.
Headings
are placed herein for convenience of reference only and in case of any conflict,
the text of this Trust Instrument rather than the headings, shall
control.
This
Trust Instrument may be executed in any number of counterparts each of which
shall be deemed an original.
Section
9.7 — Applicable Law.
The trust
set forth in this instrument is made in the State of Delaware, and the Trust and
this Trust Instrument, and the rights and obligations of the Trustees and
Shareholders hereunder, are to be governed by and construed and administered
according to the Act and the laws of said State; provided, however, that there
shall not be applicable to the Trust, the Trustees or this Trust Instrument: (a)
the provisions of Section 3540 of Title 12 of the Delaware Code; or (b) any
provisions of the laws (statutory or common) of the State of Delaware (other
than the Act) pertaining to trusts which relate to or regulate: (i) the filing
with any court or governmental body or agency of trustee accounts or schedules
of trustee fees and charges, (ii) affirmative requirements to post bonds for
trustees, officers, agents or employees of a trust, (iii) the necessity for
obtaining court or other governmental approval concerning the acquisition,
holding or disposition of real or personal property, (iv) fees or other sums
payable to trustees, officers, agents or employees of a trust, (v) the
allocation of receipts and expenditures to income or principal,
(vi) restrictions or limitations on the permissible nature, amount or
concentration of trust investments or requirements relating to the titling,
storage or other manner of holding of trust assets, or (vii) the establishment
of fiduciary or other standards or responsibilities or limitations on the acts
or powers of trustees, which are inconsistent with the limitations or
liabilities or authorities and powers of the Trustees set forth or referenced in
this Trust Instrument. The Trust shall be of the type commonly called
a “statutory trust,” and without limiting the provisions hereof, the Trust may
exercise all powers which are ordinarily exercised by such a trust under
Delaware law. The Trust specifically reserves the right to exercise
any of the powers or privileges afforded to trusts or actions that may be
engaged in by trusts under the Act, and the absence of a specific reference
herein to any such power, privilege or action shall not imply that the Trust may
not exercise such power or privilege or take such actions.
Section
9.8 — Amendments.
Except as
specifically provided herein, the Trustees may, without Shareholder vote, amend
or otherwise supplement this Trust Instrument by making an amendment, a Trust
Instrument supplemental hereto or an amended and restated trust
instrument. Shareholders shall have the right to vote: (i) on any
amendment which would affect their right to vote granted in Section 6.1; (ii) on
any amendment to this Section 9.8; (iii) on any amendment for which such vote is
required by law; and (iv) on any amendment submitted to them by the
Trustees. Any amendment required or permitted to be submitted to
Shareholders which, as the Trustees determine, shall affect the Shareholders of
one or more Series or Classes shall be authorized by vote of the Shareholders of
each Series or Class affected and no vote of
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shareholders
of a Series or Class not affected shall be required. Anything in this
Trust Instrument to the contrary notwithstanding, any amendment to Article VIII
hereof shall not limit the rights to indemnification or insurance provided
therein with respect to action or omission of any persons protected thereby
prior to such amendment.
Section
9.9 — Fiscal Year.
The
fiscal year of the Trust shall end on a specified date as determined from time
to time by the Trustees.
Section
9.10 — Provisions in Conflict with Law.
The
provisions of this Trust Instrument are severable, and if the Trustees shall
determine, with the advice of counsel, that any of such provisions is in
conflict with the 1940 Act, the regulated investment company provisions of the
Internal Revenue Code or with other applicable laws and regulations, the
conflicting provision shall be deemed never to have constituted a part of this
Trust Instrument; provided, however, that such determination shall not affect
any of the remaining provisions of this Trust Instrument or render invalid or
improper any action taken or omitted prior to such determination. If
any provision of this Trust Instrument shall be held invalid or unenforceable in
any jurisdiction, such invalidity or unenforceability shall attach only to such
provision in such jurisdiction and shall not in any manner affect such
provisions in any other jurisdiction or any other provision of this Trust
Instrument in any jurisdiction.
Section
9.11 — Allocation of Certain Expenses.
Each
Shareholder will, at the discretion of the Trustees, indemnify the Trust against
all expenses and losses resulting from indebtedness incurred in connection with
facilitating (i) requests pending receipt of the collected funds from
investments sold on the date of such Shareholder’s redemption request;
(ii) redemption requests from such Shareholder who has also notified the
Trust of its intention to deposit funds in its accounts on the date of said
redemption request; or (iii) the purchase of investments pending receipt of
collected funds from such Shareholder who has notified the Trust of its
intention to deposit funds in its accounts on the date of the purchase of the
investments.
IN
WITNESS WHEREOF, the undersigned, being the Trustees of the Trust, have each
executed this Trust Instrument, as Trustee and not individually as of the 29th
day of January, 2010.
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