CERTIFICATE OF TRUST
OF
SATUIT CAPITAL MANAGEMENT TRUST
THIS CERTIFICATE OF TRUST of Satuit Capital Management Trust
(the "Trust") is being duly executed and filed on behalf of the Trust by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 DEL.C. ss. 3801, eT Seq.) (the "Act").
1. NAME. The name of the business trust formed by this
Certificate of Trust is Satuit
Capital Management Trust.
2. REGISTERED OFFICE; REGISTERED AGENT. The business address
of the Trust's registered office in the State of Delaware is: 1013 Centre Road,
City of Wilmington 19805, County of New Castle. The name of the Trust's
registered agent at such address is Corporation Service Company.
3. INVESTMENT COMPANY. The Trust will be a registered
investment company under the Investment Company Act of 1940, as amended.
4. SERIES. Pursuant to Section 3806(b)(2) of the Act, the
Trust shall issue one or more series of beneficial interests having the rights
and preferences set forth in the governing instrument of the Trust, as the
same may be amended from time to time (each a "Series").
5. NOTICE OF LIMITATION OF LIABILITIES OF EACH SERIES.
Pursuant to Section 3804(a) of the Act, there shall be a limitation on
liabilities of each Series such that (a) the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to a
particular Series shall be enforceable against the assets of such Series only,
and not against the assets of the Trust generally or the assets of any other
Series thereof and (b) none of the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to the Trust
generally or any other Series thereof shall be enforceable against the assets of
such Series.
6. EFFECTIVE DATE. This Certificate of Trust shall be
effective upon filing with the Secretary of State.
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IN WITNESS WHEREOF, the undersigned has duly executed this
Certificate of Trust in accordance with Section 3811(a) of the Act.
By: /S/ ROBERT J. SULLIVAN
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Name: Robert J. Sullivan
Title: Trustee
By: /S/ KEVIN M. HAGGERTY
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Name: Kevin M. Haggerty
Title: Trustee
By: /S/ MICHAEL D. MUFFOLETTO
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Name: Michael D. Muffoletto
Title: Trustee
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SATUIT CAPITAL MANAGEMENT TRUST
DECLARATION OF TRUST
Dated: August 29, 2000
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TABLE OF CONTENTS
Table of Contents
PAGE
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ARTICLE I
NAME AND DEFINITIONS
Section 1.1. Name....................................................1
Section 1.2. Definitions.............................................1
ARTICLE II
TRUSTEES
Section 2.1. Number of Trustees and Qualification....................4
Section 2.2. Term and Election.......................................5
Section 2.3. Resignation and Removal.................................5
Section 2.4. Vacancies...............................................5
Section 2.5. Meetings................................................5
Section 2.6. Officers; Chairman......................................6
Section 2.7. By-Laws.................................................6
ARTICLE III
POWERS OF TRUSTEES
Section 3.1. General.................................................6
Section 3.2. Activities and Investments..............................7
Section 3.3. Legal Title.............................................8
Section 3.4. Sale of Interests; Reclassification.....................9
Section 3.5. Borrowing Money; Pledging Trust Assets;
Lending Property ......................................9
Section 3.6. Delegation; Committees..................................9
Section 3.7. Collection and Payment..................................9
Section 3.8. Expenses...............................................10
Section 3.9. Common Items...........................................10
Section 3.10. Litigation............................................10
Section 3.11. Tax Matters...........................................10
Section 3.12. Miscellaneous Powers..................................11
Section 3.13. Manner of Acting......................................11
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ARTICLE IV
INVESTMENT ADVISORY, ADMINISTRATIVE SERVICES AND PLACEMENT
AGENT ARRANGEMENTS;, CUSTODIAN
Section 4.1. Investment Advisory and Other Arrangements.............11
Section 4.2. Parties to Contract....................................12
Section 4.3. Custodian..............................................12
ARTICLE V
INTERESTS IN THE TRUST
Section 5.1. Interests..............................................12
Section 5.2. Establishment and Designation of Series................13
Section 5.3. Rights of Holders......................................14
Section 5.4. Purchase of or Increase in Interests...................15
Section 5.5. Register of Interests..................................15
Section 5.6. Nontransferability.....................................15
Section 5.7. Notices................................................15
Section 5.8. [Intentionally Omitted]................................15
Section 5.9. No Liability of Holders................................15
Section 5.10. Classes of Interests..................................16
ARTICLE VI
DECREASES AND WITHDRAWALS
Section 6.1. Decreases and Withdrawals..............................16
ARTICLE VII
DETERMINATION OF BOOK CAPITAL ACCOUNT BALANCES, NET INCOME
AND DISTRIBUTIONS
Section 7.1. Book Capital Account Balances..........................16
Section 7.2. Allocations and Distributions to Holders...............17
Section 7.3. Power to Modify Foregoing Procedures...................17
ARTICLE VIII
LIABILITY FOR TRUST OBLIGATIONS
Section 8.1. Liabilities of Series..................................17
Section 8.2. No Personal Liability of Trustees, etc.................18
Section 8.3. Indemnification........................................18
Section 8.4. No Protection Against Certain 1940 Act Liabilities.....19
Section 8.5. No Bond Required of Trustees...........................19
Section 8.6. No Duty of Investigation; Notice
in Trust Instruments, etc...........................19
Section 8.7. Insurance..............................................20
Section 8.8. Reliance on Experts, etc...............................20
Section 8.9. Accounting.............................................20
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ARTICLE IX
HOLDERS
Section 9.1. Meetings of Holders....................................20
Section 9.2. Notice of Meetings.....................................21
Section 9.3. Record Date for Meetings...............................21
Section 9.4. Proxies, etc...........................................21
Section 9.5. Reports................................................22
Section 9.6. Inspection of Records..................................22
Section 9.7. Holder Action by Written Consent.......................22
ARTICLE X
DURATION; TERMINATION OF TRUST OR SERIES; AMENDMENT; MERGERS; ETC.
Section 10.1. Duration..............................................22
Section 10.2. Dissolution of Series or Trust........................22
Section 10.3. Termination of Trust or Series........................22
Section 10.4. Amendment Procedure...................................23
Section 10.5. Merger, Consolidation, Conversion and Sale of Assets..24
ARTICLE XI
MISCELLANEOUS
Section 11.1. Certificate of Trust; Registered Agent................25
Section 11.2. Governing Law.........................................25
Section 11.3. Counterparts..........................................25
Section 11.4. Reliance by Third Parties.............................25
Section 11.5. Provisions in Conflict with Law or Regulations........25
Section 11.6. Trust Only............................................26
SIGNATURE PAGE......................................................27
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DECLARATION OF TRUST of Satuit Capital Management Trust made
as of this 29th day of August, 2000, by Robert J. Sullivan, Kevin M. Haggerty,
and Michael D. Muffoletto, as trustees (such Persons, so long as they shall
continue in office in accordance with the provisions of this Declaration of
Trust, and all other Persons who may hereafter be duly elected or appointed,
qualified and serving as trustees in accordance with the provisions hereof,
being hereinafter called "Trustees").
W I T N E S S E T H:
WHEREAS, the Trustees desire to establish a business trust
under the Delaware Business Trust Act, 12 DEL. C. ' 3801, ET SEQ. (the "Act")
consisting of one or more series for the investment and reinvestment of funds
contributed thereto;
NOW, THEREFORE, the Trustees hereby declare that all money and
property hereafter contributed to each Series of the Trust established hereby
and pursuant to each instrument executed pursuant to Section 5.2 hereof shall be
held and managed in trust for the benefit of the Holders of beneficial interests
issued hereunder with respect to each respective Series from time to time and
subject to the provisions hereof, to wit:
ARTICLE I
NAME AND DEFINITIONS
SECTION 1.1. NAME. The name of the trust established hereby
(the "Trust") is "Satuit Capital Management Trust," and, insofar as may be
practicable, the Trust shall conduct its activities, execute all documents and
sue or be sued under that name, which name (and the word "Trust" wherever herein
used) shall refer to the Trust as a separate legal entity, and shall not refer
to the Trustees, officers, agents, employees or Holders. If the Trustees
determine that the Trust's use of such name is not advisable, the Trustees may
adopt 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 under the Act. Any such instrument shall have the status of an
amendment to this Declaration.
SECTION 1.2. DEFINITIONS. Wherever they are used herein, the
following terms have the respective meanings assigned to them below:
(a) "Act" shall mean the Delaware Business Trust Act, 12 DEL.
C. ' 3801, ET SEQ., as the same may be amended from time to time.
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(b) "Administrator" shall mean any party furnishing services
to the Trust and the Series pursuant to any administrative services
contract described in Section 4.1.
(c) "Affiliated Person" has the meaning assigned to it in
Section 2(a)(3) of the 1940 Act.
(d) "Assets belonging to" a Series shall have the meaning
ascribed in Section 5.2(a).
(e) "Assistant Secretary" means the Person appointed as such
pursuant to Section 2.6.
(f) "Assistant Treasurer" means the Person appointed as such
pursuant to Section 2.6.
(g) "Book Capital Account" shall mean, for any Holder at any
time, the Book Capital Account of the Holder at such time with respect
to such Holder's interest in the Trust Property of any Series,
determined in accordance with generally accepted accounting principles
and the provisions of the 1940 Act, and each Holder shall have a
separate Book Capital Account for each Series in which it holds an
Interest.
(h) "By-Laws" means the By-Laws referred to in Section 2.7
hereof, as amended and in effect from time to time.
(i) "Code" shall mean the Internal Revenue Code of 1986 and
the rules and regulations thereunder, each as amended from time to
time.
(j) "Commission" means the Securities and Exchange Commission.
(k) "Custodian" means the party, other than the Trust or the
Series, to the agreement described in Section 4.3 hereof.
(l) "Declaration" means this Declaration of Trust, as amended
and in effect from time to time. Reference in this Declaration of Trust
to "Declaration," "hereof," "herein," "hereby" and "hereunder" shall be
deemed to refer to this Declaration rather than the article or section
in which such words appear.
(m) "Fundamental Policies" means the investment policies and
restrictions applicable to any Series that are set forth and designated
as fundamental policies in the Registration Statement.
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(n) "Holders" shall mean as of any particular time all holders
of record of beneficial Interests in the Trust Property of any Series
or class at such time.
(o) "Institutional Investor(s)" shall mean any registered
investment company (including a unit investment trust), insurance
company separate account, common or commingled trust fund, group trust
or similar organization or entity that is an "accredited investor"
within the meaning of Regulation D under the Securities Act of 1933.
(p) "Interested Person" has the meaning ascribed to it in
Section 2(a)(19) of the 1940 Act.
(q) "Interest(s)" shall mean the beneficial interest of a
Holder in the Trust Property of any Series or class, including all
rights, powers and privileges accorded to Holders in this Declaration,
which interest may be expressed as a percentage, determined by
calculating, as the Trustees shall from time to time determine, the
ratio of each Holder's Book Capital Account balance in the Trust
Property of any Series or class to the total of all Holders' Book
Capital Account balances in the Trust Property of any such Series or
class. Reference herein to a specific percentage in, or fraction of,
Interests of the Holders means Holders whose combined Book Capital
Accounts represent such specified percentage or fraction of the Book
Capital Accounts of all Holders of the Trust Property of any Series or
class or of the Trust as a whole (as the context may require).
(r) "Investment Adviser" means the party, other than the Trust
or the Series, to any investment advisory contract described in Section
4.1 hereof.
(s) "Liabilities belonging to a Series" shall have the meaning
ascribed in Section 5.2(b).
(t) "1940 Act" means the provisions of the Investment Company
Act of 1940 and the rules and regulations thereunder, as amended from
time to time, and any order or orders thereunder which may from time to
time be applicable to the Trust.
(u) "Person" means and includes individuals, corporations,
partnerships, trusts, associations, joint ventures and other entities,
whether or not legal entities, and governments and agencies and
political subdivisions thereof.
(v) "President" means the Person elected by the Trustees
pursuant to Section 2.6.
(w) "Registered Agent" means the Person appointed as such
pursuant to Section 11.1
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(x) "Registration Statement" means the Trust's currently
effective Registration Statement under the 1940 Act, as it may be
amended or supplemented from time to time.
(y) "Secretary" means the Person elected by the Trustees
pursuant to Section 2.6.
(z) "Series" means each Series of the Trust established and
designated under or in accordance with Sections 3804(a) and 3806(b)(2)
of the Act and the provisions of Article V hereof, each of which shall
be accounted for and maintained as a separate series of the Trust.
(aa) "Special Meetings" means meetings of the Trustees called
in accordance with Section 2.5.
(bb) "Treasurer" means the Person elected by the Trustees
pursuant to Section 2.6.
(cc) "Trust" means the master trust established hereby by
whatever name it may then be known, inclusive of each and every Series
established hereunder.
(dd) "Trust Property" means any and all assets, real or
personal, tangible or intangible, that are owned or held by the Trust,
each and every asset of which shall be allocated and belong to a
specific Series to the exclusion of all other Series.
(ee) "Trustees" means the individual or individuals who have
signed this Declaration, so long as they shall continue in office in
accordance with the provisions hereof, and all other Persons who may
from time to time be duly elected or appointed, qualified and serving
as Trustees in accordance with the provisions hereof, and reference
herein to a Trustee or the Trustees shall refer to such individuals or
Persons in their capacity as trustees hereunder.
(ff) The use herein of the masculine or feminine gender or the
neutral shall be construed to refer to the other gender or the neutral
as well, and the use herein of the singular shall be construed to
include the plural and the plural to include the singular, as the
context may require.
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ARTICLE II
TRUSTEES
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SECTION 2.1. NUMBER OF TRUSTEES AND QUALIFICATION. The number
of Trustees shall initially be four (4) and shall thereafter be such number as
shall be fixed from time to time by a written instrument signed by a majority of
the Trustees then in office, provided, however, that the number of Trustees
shall, subsequent to any sale of Interests other than sales made solely for the
purposes of meeting any applicable seed money requirement under the 1940 Act, in
no event be less than three (3) or more than fifteen (15). Any vacancy created
by an increase in Trustees may be filled by the appointment of any Person having
the qualifications described in this Article made by a written instrument signed
by a majority of the Trustees then in office. Any such appointment shall not
become effective, however, until the Person named in the written instrument of
appointment shall have accepted in writing such appointment and agreed in
writing to be bound by the terms of this Declaration. No reduction in the number
of Trustees shall have the effect of removing any Trustee from office. Whenever
a vacancy in the number of Trustees shall occur, until such vacancy is filled as
provided in this Section and Section 2.4 hereof, the Trustees in office,
regardless of their number, shall have all the powers granted to the Trustees
and shall discharge all the duties imposed upon the Trustees by this
Declaration.
SECTION 2.2. TERM AND ELECTION. Each Trustee named herein, or
elected or appointed prior to the first meeting of the Holders, shall (except in
the event of resignations or removals or vacancies pursuant to Section 2.3 or
2.4 hereof) hold office until his successor has been elected at such meeting and
has qualified to serve as Trustee, as required under the 1940 Act. Beginning
with the Trustees elected at the first meeting of Holders, each Trustee shall
hold office during the lifetime of this Trust and until its termination as
hereinafter provided unless such Trustee resigns or is removed as provided in
Section 2.3 below.
SECTION 2.3. RESIGNATION AND REMOVAL. Any Trustee may resign
(without need for prior or subsequent accounting) by an instrument in writing
signed by him or her and delivered to the other Trustees, and such resignation
shall be effective upon such delivery or at any later date according to the
terms of the instrument. Any of the Trustees may be removed by the action of
two-thirds of the remaining Trustees; provided, that if the removal of one or
more Trustees would have the effect of reducing the number of remaining Trustees
below the minimum number prescribed by Section 2.1 hereof, then subject to
Section 16(a) of the 1940 Act, at the time of the removal of such Trustee or
Trustees, the remaining Trustees shall elect or appoint a number of additional
Trustees at least sufficient to increase the number of Trustees holding office
to the minimum number prescribed by Section 2.1 hereof. Upon the resignation or
removal of a Trustee, or his or her otherwise ceasing to be a Trustee due to
death or legal disability, he or she shall execute and deliver such documents as
the remaining Trustees shall require for the purpose of conveying to the Trust
or the remaining Trustees any Trust Property held in his or her name. Upon the
death or legal disability of any Trustee, his or her legal representative shall
execute and deliver on his or her behalf such documents as the remaining
Trustees shall require as provided in the preceding sentence. However, the
execution and delivery of such documents by a former Trustee or his or her legal
representative shall not be requisite to the vesting of title to the Trust
Property in the remaining Trustees as provided in Section 3.3 hereof
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SECTION 2.4. VACANCIES. The term of office of a Trustee shall
terminate and a vacancy shall occur in the event of such Trustee's death,
resignation, removal, bankruptcy, adjudicated incompetence or other legal
disability to perform the duties of the office of Trustee. No such vacancy shall
operate to annul this Declaration or to revoke any existing obligations created
pursuant to the terms of this Declaration. In the case of a vacancy, the Holders
of at least a majority of the Interests entitled to vote, acting at any meeting
of the Holders held in accordance with Section 9.1 hereof, or, to the extent
permitted by the 1940 Act, a majority vote of the Trustees continuing in office
acting by written instrument or instruments, may fill such vacancy, and any
Trustee so elected by the Trustees or the Holders shall hold office as provided
in this Declaration.
SECTION 2.5. MEETINGS. Regular meetings of the Trustees may be
held on such notice at such place or places and times as may be fixed by the
By-Laws or by resolution of the Trustees. Special Meetings of the Trustees shall
be held upon the call of the Chairman, if any, the president, the secretary or
any two Trustees, by oral or electronic or written notice duly served on or
sent, mailed or sent by telecopy or e-mail to each Trustee not less than one day
before the meeting. No notice need be given to any Trustee who attends in person
or to any Trustee who, in writing signed and filed with the records of the
meeting either before or after the holding thereof, waives notice. Notice or
waiver of notice need not state the purpose or purposes of the meeting. The
Trustees may act with or without a meeting, subject to the requirements of the
1940 Act. A quorum for all meetings of the Trustees shall be a majority of the
Trustees. Unless provided otherwise in this Declaration, any action of the
Trustees may be taken at a meeting by vote of a majority of the Trustees present
(a quorum being present) or without a meeting by written consent of a majority
of the Trustees.
Any committee of the Trustees, including an executive
committee, if any, may act with or without a meeting. A quorum for all meetings
of any such committee shall be a majority of the members thereof. Unless
provided otherwise in this Declaration, any action of any such committee may be
taken at a meeting by vote of a majority of the members present (a quorum being
present) or without a meeting by written consent of a majority of the members.
With respect to actions of the Trustees and any committee of
the Trustees, Trustees who are Interested Persons of the Trust within the
meaning of Section 1.2 hereof or otherwise interested in any action to be taken
may be counted for quorum purposes under this Section 2.5 and shall be entitled
to vote to the extent permitted by the 1940 Act.
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All or any one or more Trustees may participate in a meeting
of the Trustees or any committee thereof by means of a conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and participation in a meeting pursuant to such
communications system shall constitute presence in person at such meeting.
SECTION 2.6. OFFICERS; CHAIRMAN. The Trustees shall, from time
to time, elect a President, a Secretary, and a Treasurer, who shall be deemed
officers of the Trust in accordance with this Declaration. The Trustees may
appoint an Assistant Secretary and an Assistant Treasurer as the Trustees deem
advisable. The Trustees may elect or appoint, from time to time, a Chairman who
shall preside at all meetings of the Trustees and carry out such other duties as
the Trustees shall designate. The Trustees may elect or appoint or authorize the
President to appoint such other officers or agents with such powers as the
Trustees may deem to be advisable. The President, the Secretary and the
Treasurer may, but need not, be Trustees, and shall be agents of the Trust
within the meaning of Section 3806(b)(7) of the Act.
SECTION 2.7. BY-LAWS. The Trustees may adopt By-Laws not
inconsistent with this Declaration for the conduct of activities of the Trust
and may amend or repeal such By-laws to the extent such power is not reserved to
the Holders by express provision of such By-laws. This Declaration and the
By-Laws shall together constitute the "governing instrument" of the Trust within
the meaning of Section 3801(f) of the Act.
ARTICLE III
POWERS OF TRUSTEES
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SECTION 3.1. GENERAL. The Trustees shall have exclusive and
absolute control over the Trust Property and over the activities of the Trust
and each Series to the fullest extent permitted by Section 3806(a) of the Act
and other applicable law, but with such powers of delegation as may be permitted
by this Declaration. The Trustees shall have power to conduct the activities of
the Trust and any Series and to carry on their operations and maintain offices
both within and outside of the State of Delaware, in any and all states of the
United States of America, and in the District of Columbia, in any foreign
country, and in any and all commonwealths, territories, dependencies, colonies,
possessions, agencies or instrumentalities of the United States of America and
of foreign governments, 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 and each Series although such things are not herein
specifically mentioned. Any determination as to what is in the interests of the
Trust or any Series made by the Trustees in good faith shall be conclusive. In
construing the provisions of this Declaration, the presumption shall be in favor
of a grant of power to the Trustees. The Trustees will not be required to obtain
any court order to deal with Trust Property.
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The enumeration of any specific power herein shall not be
construed as limiting the aforesaid powers. Such powers of the Trustees may be
exercised without order of or resort to any court.
SECTION 3.2. ACTIVITIES AND INVESTMENTS. The Trustees shall
have the power with respect to the
Trust and each Series:
(a) to conduct, operate and carry on the activities of an
investment company, and, in connection therewith:
(i) to subscribe for, purchase or otherwise acquire
and invest and reinvest in, to hold for investment or
otherwise, to sell, transfer, assign, negotiate, exchange,
lend or otherwise dispose of, and to turn to account or
realize upon and generally deal in and with, domestic or
foreign securities (which term, "securities," shall include
without limitation any and all bills, notes, bonds, debentures
or other obligations or evidences of indebtedness,
certificates of deposit, bankers acceptances, commercial
paper, repurchase agreements or other money market
instruments; stocks, shares or other equity ownership
interests (including non-publicly traded or illiquid
securities and those securities the disposition of which is
restricted under the Federal securities laws); convertible
securities; mortgage-backed or other asset-backed securities;
and warrants, options or other instruments representing rights
to subscribe for, purchase, receive or otherwise acquire or to
sell, transfer, assign or otherwise dispose of, and scrip,
certificates, receipts or other instruments evidencing any
ownership rights or interests in, any of the foregoing; and
"forward commitment," "when issued" and "delayed delivery"
contracts for securities, issued, guaranteed or sponsored by
any governments, political subdivisions or governmental
authorities, agencies or instrumentalities, by any
individuals, firms, companies, corporations, syndicates,
associations or trusts, or by any other organizations or
entities whatsoever, irrespective of their forms or the names
by which they may be described, whether or not they be
organized and operated for profit, and whether they be
domestic or foreign with respect to the State of Delaware or
the United States of America); and
(ii) to acquire and become the owner of or interested
in any securities by delivering or issuing in exchange or
payment therefor, in any lawful manner, any of the Trust
Property; and
(iii) to exercise while the owner of any securities
or interests therein any and all of the rights, powers and
privileges of ownership of such securities or interests,
including without limitation any and all voting rights and
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rights of assent, consent or dissent pertaining thereto, and
to do any and all acts and things for the preservation,
protection, improvement and enhancement in value thereof; and
(iv) to purchase, sell and hold currencies and enter
into contracts for the future purchase or sale of currencies,
including but not limited to forward foreign currency exchange
contracts; and
(v) to enter into futures and forward contracts, and
to purchase and write put and call options on futures
contracts, securities, currencies and securities indexes; and
(vi) to make loans to the extent provided in the
Registration Statement from time to time; and
(vii) to engage in such other activities as may be
disclosed in the Registration Statement from time to time; and
(b) to conduct, operate and carry on any other lawful
activities which the Trustees, in their sole and absolute discretion,
consider to be (i) incidental to the activities of the Trust and each
Series as an investment company, (ii) conducive to or expedient for the
benefit or protection of the Trust or any Series or the Holders, or
(iii) calculated in any other manner to promote the interests of the
Trust or any Series or the Holders.
The Trustees shall not be limited to investing in securities maturing before the
possible termination of the Trust or any Series, nor shall the Trustees be
limited by any law limiting the investments that may be made by fiduciaries.
Notwithstanding anything to the contrary herein contained but consistent with
the applicable investment objectives, the Trust and each Series shall be managed
in compliance with the requirements of the Code applicable to regulated
investment companies as though such requirements were applied at the Series
level.
SECTION 3.3. LEGAL TITLE. Legal title to all the Trust
Property shall be vested in the Trust as a separate legal entity, except that
the Trustees shall have power to cause legal title to any Trust Property to be
held by or in the name of one or more of the Trustees or in the name of any
Series of the Trust, or in the name of any other Person as nominee, on such
terms as the Trustees may determine, provided, that the interest of the Trust or
any Series therein is appropriately protected. The right, title and interest of
the Trustees in the Trust Property shall vest automatically in each Person who
may hereafter become a Trustee. Upon the termination of the term of office of a
Trustee as provided in Section 2.2 or 2.4 hereof, such Trustee shall
automatically cease to have any right, title or interest in any of the Trust
Property, and all right, title and interest of such Trustee in the Trust
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Property shall vest automatically in the remaining Trustees. Such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered as provided in Section 2.3 hereof.
SECTION 3.4. SALE OF INTERESTS; RECLASSIFICATION. Subject to
more detailed provisions set forth in Article V and the Trustees' duty of
impartiality to the Holders, the Trustees shall have the power to permit Persons
to purchase Interests and to add to or reduce, in whole or in part, their
Interests in any Series or class, provided that from and after the commencement
of the private placement of Interests, Interests shall be sold only to Eligible
Investors as set forth in each Series' Prospectus ("Eligible Investors"). The
Trustees shall also have the power to acquire, hold, resell, dispose of,
transfer, classify, reclassify and otherwise deal in Interests of the Trust or
any Series or class. The Trustees may hold as treasury Interests (without such
Interests being deemed to be canceled), re-issue for such consideration and on
such terms as they determine, or cancel, in their discretion from time to time,
any Interests of any Series or class thereof reacquired by the Trust.
SECTION 3.5. BORROWING MONEY; PLEDGING TRUST ASSETS; LENDING
PROPERTY. Subject to any applicable Fundamental Policies of the Trust or any
Series or any applicable provision of the By-Laws, the Trustees shall have the
power, on behalf of the Trust or any Series, to borrow money or otherwise obtain
credit and to secure the same by mortgaging, pledging or otherwise subjecting as
security any of the Trust Property, to endorse, guarantee or undertake the
performance of any obligation, contract or engagement of any other Person and to
lend Trust Property; provided that Trust Property belonging to a Series shall
not be pledged, encumbered or subject to liabilities belonging to any other
Series.
SECTION 3.6. DELEGATION; COMMITTEES. The Trustees shall have
the power, consistent with their continuing exclusive authority over the
management of the Trust, each Series and the Trust Property, to delegate from
time to time to such committee or committees as they may from time to time
appoint from among their own number or to such officers, employees or agents of
the Trust as they may from time to time designate the doing of such things and
the execution of such instruments either in the name of the Trust or any Series
or the names of the Trustees or otherwise as the Trustees may deem expedient.
SECTION 3.7. COLLECTION AND PAYMENT. The Trustees shall have
the power to collect all property due to the Trust or any Series; to pay all
claims, including taxes, against the Trust Property; to prosecute, defend,
compromise or abandon any claims relating to the Trust Property; to foreclose
any security interest securing any obligations by virtue of which any property
is owed to the Trust or any Series; and to enter into releases, agreements and
other instruments.
SECTION 3.8. EXPENSES. The Trustees shall have the power to
incur and pay, out of the income or the principal of the Trust Property of the
Series, any expenses which, in the opinion of the Trustees, are necessary or
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incidental to carrying out any of the purposes of this Declaration, and to pay
reasonable compensation from the funds of the Trust to themselves as Trustees;
provided that no Series will be liable for the debts and obligations of any
other Series, and expenses, fees, charges, taxes and liabilities incurred or
arising in connection with a particular Series, or in connection with the
management thereof, shall be paid out of the Trust Property belonging to that
Series and not out of the Trust Property belonging to any other Series. The
Trustees shall not be obligated to account to the Holders for the retention of
compensation, and each Holder agrees that compliance with the accounting
requirements of the 1940 Act and of this Declaration shall constitute
satisfactory accounting with respect to all acts of the Trustees. The Trustees
shall fix the compensation of all officers, employees and Trustees of the Trust
and may pay such compensation out of the Trust Property without reduction of the
Trustees' compensation.
SECTION 3.9. COMMON ITEMS. All expenses and other items of the
Trust that are common to each Series of the Trust shall be borne by or allocated
to each Series proportionately based upon the relative net asset values of each
Series. Such common items shall include, but not be limited to, Trustees' fees;
1940 Act registration expenses; organizational expenses of the Trust, exclusive
of organizational expenses attributable to any specific Series; and accounting
expenses relating to the Trust that are not attributable to any specific Series.
SECTION 3.10. LITIGATION. The Trustees shall have the power 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 or any Series or the Trust Property, and, out of
the Trust Property, 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,
consenting to dismiss any action, suit, proceeding, dispute, claim or demand,
brought by any Person, including, to the extent permitted by applicable law, a
Holder in such Holder's own name or in the name of the Trust or any Series,
whether or not the Trust, a Series 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 or any Series.
SECTION 3.11. TAX MATTERS. The Trustees shall have the
exclusive power, authority and responsibility with respect to the Trust and the
Series regarding (i) preparation and filing of tax returns; (ii) providing
reports to the Holders regarding tax information necessary to the filing of
their respective tax returns; (iii) making any and all available elections with
respect to the tax treatment of the Series and their investments; (iv)
representing the Series before the Internal Revenue Service and/or any state
taxing authority and exercising the powers and authorities of a tax matters
partner under the Code with respect to the Series' partnership tax returns; (v)
exercising such responsibility as may be imposed by law with respect to
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withholding from a Holder's share of income or distributions; (vi) providing to
the accountants of the Series such instructions regarding allocations of
realized income, gains and losses as may be necessary or appropriate to assure
compliance with applicable provisions of the Code and Treasury Regulations; and
(vii) any and all other tax matters.
SECTION 3.12. MISCELLANEOUS POWERS. The Trustees shall have
the power to: (a) employ or contract with such Persons as the Trustees may deem
desirable for the transaction of the activities of the Trust or any Series and
eliminate such employees or contractual relationships as they consider
appropriate; (b) enter into joint ventures, partnerships and any other
combinations or associations; (c) remove Trustees or fill vacancies in or add to
their number, subject to and in accordance with Sections 2.3 and 2.4 hereof;
elect and remove at will such officers and appoint and terminate such agents or
employees as they consider appropriate; and appoint from their own number and
terminate at will any one or more committees that may exercise some or all of
the power and authority of the Trustees as the Trustees may determine; (d)
purchase, and pay for out of Trust Property, insurance policies insuring the
Trust Property, and, to the extent permitted by law and not inconsistent with
any applicable provision of this Declaration or the By-Laws, insuring the
Investment Adviser, Administrator, placement agent, Holders, Trustees, officers,
employees, agents or independent contractors of the Trust or any Series against
all claims arising by reason of holding any such position or by reason of any
action taken or omitted to be taken by any such Person in such capacity, whether
or not constituting negligence, or whether or not the Trust or any Series would
have the power to indemnify such Person against such liability; (e) indemnify
any person with whom the Trust or any Series has dealings, including the
Holders, Trustees, officers, employees, agents, Investment Adviser,
Administrator, placement agent and independent contractors of the Trust or any
Series, to such extent permitted by law and not inconsistent with the applicable
provisions of this Declaration; (f) subject to applicable Fundamental Policies,
guarantee indebtedness or contractual obligations of others; (h) determine and
change the fiscal year of the Trust or any Series and the method by which its
accounts shall be kept; and (g) adopt a seal for the Trust or any Series, but
the absence of such seal shall not impair the validity of any instrument
executed on behalf of the Trust or Series.
SECTION 3.13. MANNER OF ACTING. Except as otherwise provided
herein, in the By-laws, in the 1940 Act or in any other applicable provision of
law, any action to be taken by the Trustees may be taken in the manner set forth
in Section 2.5 hereof.
ARTICLE IV
INVESTMENT ADVISORY, ADMINISTRATIVE SERVICES
--------------------------------------------
AND PLACEMENT AGENT ARRANGEMENTS; CUSTODIAN
-------------------------------------------
SECTION 4.1. INVESTMENT ADVISORY AND OTHER ARRANGEMENTS. The
Trustees may in their discretion, from time to time, cause the Series to
separately enter into investment advisory and administrative services contracts
or placement agent agreements whereby the other party to such contract or
agreement shall undertake to furnish to the Series specified therein such
investment advisory, administrative, placement agent and/or other services as
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the Trustees shall, from time to time, consider desirable with respect to such
Series and all upon such terms and conditions as the Trustees may in their
discretion determine. Notwithstanding any other provisions of this Declaration,
the Trustees may authorize any Investment Adviser (subject to such general or
specific instructions as the Trustees may, from time to time, adopt) to effect
purchases, sales, loans or exchanges of Trust Property on behalf of any Series
or may authorize any officer, employee or Trustee to effect such purchases,
sales, loans or exchanges pursuant to recommendations of any such Investment
Adviser (and all without further action by the Trustees). Any such purchase,
sales, loans and exchanges shall be deemed to have been authorized by all of the
Trustees. The Trust hereby appoints Satuit Capital Management, LLC as the
initial Investment Advisor.
SECTION 4.2. PARTIES TO CONTRACT. Any contract of the
character described in Section 4.1 of this Article IV or in the By-Laws of the
Trust may be entered into with any corporation, firm, 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 voidable by reason of the
existence of any such relationship, nor shall any person holding such
relationship be liable merely by reason of such relationship for any loss or
expense to the Trust or any Series under or by reason of said contract or
accountable for any profit realized directly or indirectly therefrom, provided
that the contract when entered into was reasonable and fair and not inconsistent
with the provisions of this Article IV or the By-Laws. The same Person
(including a firm, corporation, trust or association) may be the other party to
contracts entered into pursuant to Section 4.1 above or the By-Laws of the
Trust, 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 4.2.
SECTION 4.3. CUSTODIAN. The Trustees may appoint one or more
banks or trust companies as custodian of the securities and cash belonging to
the Series. The agreement providing for such appointment shall contain such
terms and conditions as the Trustees in their discretion determine to be not
inconsistent with this Declaration, the applicable provisions of the 1940 Act
and any applicable provisions of the By-Laws of the Trust. One or more
subcustodians may be appointed in a manner not inconsistent with this
Declaration, the applicable provisions of the 1940 Act and any applicable
provisions of the By-Laws of the Trust.
ARTICLE V
INTERESTS IN THE TRUST
----------------------
SECTION 5.1. INTERESTS. Subject to the limitations contained
in Section 5.8 relating to the number of permitted Holders, the beneficial
interests in the Trust Property shall consist of an unlimited number of
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nontransferable Interests that shall be denominated in dollars corresponding to
the value of such Interests determined by reference to the corresponding Book
Capital Accounts. All Interests shall be validly issued, fully paid and
nonassessable when issued for such consideration as the Trustees shall
determine. The Trustees may permit the purchase of Interests (for cash or other
consideration acceptable to the Trustees, subject to the requirements of the
1940 Act) but only if the purchaser is an Institutional Investor, except as set
forth in each Series' Prospectus. Subject to applicable law, the provisions
hereof and such restrictions as may be adopted by the Trustees, a Holder may
increase its Interest by contributions or decrease its Interest by withdrawals
without limitation.
Pursuant to Section 3806(b)(2) of the Act, the Trustees shall
have authority, from time to time, to establish Interests of a Series, each of
which shall be separate and distinct from the Interests in any other Series. The
Series shall include, without limitation, those Series specifically established
and designated in Section 5.2 hereof, and such other Series as the Trustees may
deem necessary or desirable. The Trustees shall have exclusive power without the
requirement of Holder approval to establish and designate such separate and
distinct Series, and, subject to the provisions of this Declaration and the 1940
Act, to fix and determine the rights of Holders of Interests in such Series,
including with respect to the price, terms and manner of purchase and
redemption, dividends and other distributions, rights on liquidation, sinking or
purchase fund provisions, conversion rights and conditions under which the
Holders of the several Series shall have separate voting rights or no voting
rights.
The Trust is a series trust pursuant to Sections 3804(a) and
3806(b)(2) of the Act, and each Series shall be a separate series of the Trust
within the meaning of Section 3806(b)(2) of the Act. As such, separate and
distinct records shall be maintained for each Series and the assets of the Trust
associated with each Series shall be held and accounted for separately from the
other assets of the Trust or any other Series. The debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to each Series shall be enforceable against the assets of such Series
only, and not against the assets of the Trust generally or the assets of any
other Series, nor shall the assets of any Series be charged with the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to another Series or, except as otherwise provided herein,
the Trust generally.
SECTION 5.2. ESTABLISHMENT AND DESIGNATION OF SERIES. The
establishment and designation of any Series shall be effective upon the
execution by the Secretary or an Assistant Secretary of the Trust, pursuant to
authorization by a majority of the Trustees, of an instrument setting forth such
establishment and designation and the relative rights and preferences of the
Interests of such Series, or as otherwise provided in such instrument. At any
time the Trustees may by resolution adopted by a majority of their number, and
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evidenced by an instrument executed by the Secretary or an Assistant Secretary
of the Trust, abolish that Series and the establishment and designation thereof
and redeem the Interests therein. Each instrument referred to in this paragraph
shall have the status of an amendment to this Declaration of Trust.
Without limiting the authority of the Trustees set forth above
to establish and designate further Series, the Trustees hereby establish and
designate the Satuit Capital Management Micro Cap Fund as the sole Series of the
Trust. The Interests of this Series and any Interests of any subsequent Series
that may from time to time be established and designated by the Trustees shall
(unless the Trustees otherwise determine with respect to some further Series at
the time of establishing and designating the same) have the following relative
rights and preferences:
(a) ASSETS BELONGING TO SERIES. All consideration received by
the Trust for the issue or sale of Interests 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 by the
Trustees in a separate account for the benefit of the Holders of
Interests of that Series and shall irrevocably belong to that Series
for all purposes, and shall be so recorded upon the books of account of
the Trust.
Such consideration, assets, 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, are herein referred to as "assets belonging to" that
Series. No Series shall have any right to or interest in the assets
belonging to any other Series, and no Holder shall have any right or
interest with respect to the assets belonging to any Series in which it
does not hold an Interest.
(b) LIABILITIES BELONGING TO SERIES. The assets belonging to
each particular Series shall be charged with the liabilities in respect
of that Series and all expenses, costs, charges and reserves
attributable to that Series. The liabilities, expenses, costs, charges
and reserves so charged to a Series are herein referred to as
"liabilities belonging to" that Series. Subject to Section 8.1 hereof,
no Series shall be liable for or charged with the liabilities belonging
to any other Series.
(c) VOTING. On each matter submitted to a vote of the Holders,
each Holder of an Interest in each Series shall be entitled to a vote
proportionate to its Interest in such Series as recorded on the books
of the Trust and all Holders of Interests in each Series shall vote as
a separate class except as to voting for Trustees and as otherwise
required by the 1940 Act, in which case all Holders shall vote together
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as a single class. As to any matter that does not affect the interest
of a particular Series or class, only the Holders of Interests of the
one or more affected Series or class shall be entitled to vote.
SECTION 5.3. RIGHTS OF HOLDERS. The ownership of the Trust
Property of every description and the right to conduct any activities
hereinbefore described shall be vested exclusively in the Trust, and the Holders
shall have no interest therein other than the beneficial interest conferred by
their Interests, and they shall have no right to call for any partition or
division of any property, profits, rights or interests of the Trust or any
Series. No Holder shall have any interest in or rights with respect to any
Series in which it does not hold an Interest. The Interests shall be personal
property giving only the rights specifically set forth in this Declaration. The
Holders shall have no right to demand payment for their Interests or any other
rights of dissenting shareholders in the event the Trust participates in any
transaction that would give rise to appraisal or dissenter's rights by a
shareholder of a corporation organized under the General Corporation Law of the
State of Delaware or otherwise. Holders shall have no preemptive or other rights
to subscribe for additional Interests or other securities issued by the Trust.
No action may be brought by a Holder on behalf of the Trust or any Series
thereof unless Holders owning, in the aggregate, not less than 25% of the
then-outstanding Interests of the Trust or such Series join in the bringing of
such action. All Persons, by virtue of acquiring an Interest in the Trust and
being registered as a Holder in accordance with Section 5.5 hereof, shall be
deemed to have assented to, and shall be bound by, this Declaration to the same
extent as if such Person was a party hereto.
SECTION 5.4. PURCHASE OF OR INCREASE IN INTERESTS. The
Trustees, in their discretion, may, from time to time, without a vote of the
Holders, permit the purchase of additional Interests of any Series by such
Person or Persons (including existing Holders), subject to the provisions of
Section 5.1 hereof, and for such type of consideration, including cash or
property, at such time or times (including, without limitation, each business
day), and on such terms as the Trustees may deem best, and may in such manner
acquire other assets (including the acquisition of assets subject to, and in
connection with the assumption of, liabilities) and businesses.
SECTION 5.5. REGISTER OF INTERESTS. A register shall be kept
by the Trustees or an officer of the Trust, on behalf of the Trust, that shall
contain the names and addresses of the Holders and the Book Capital Account
balances of each Holder in each Series. Each such register shall be conclusive
as to who the Holders are and who shall be entitled to payments of distributions
or otherwise to exercise or enjoy the rights of Holders. No Holder shall be
entitled to receive payment of any distribution, nor to have notice given to it
as herein provided, until it has given its address to such officer or agent of
the Trust as shall keep the said register for entry thereon.
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SECTION 5.6. NONTRANSFERABILITY. To the fullest extent
permitted by law, Interests shall not be transferable and no transferee shall be
recognized as a Holder except with the prior written consent of all of the
Trustees and all remaining Holders of Interests.
SECTION 5.7. NOTICES. Any and all notices to which any Holder
hereunder may be entitled and any and all communications shall be deemed duly
served or given if mailed, postage prepaid, addressed to any Holder of record at
its last known address as recorded on the register of the Trust or transmitted
to the Holders by any other method permitted by law.
SECTION 5.8. [Intentionally Omitted].
SECTION 5.9. NO LIABILITY OF HOLDERS. All Interests, when
issued in accordance with this Declaration, shall be fully paid and
nonassessable. Holders shall be entitled to the full protection against personal
liability for the obligations of the Trust under Section 3803(a) of the Act. The
Trust shall indemnify and hold each Holder harmless from and against any claim
or liability to which such Holder may become subject solely by reason of his or
her being or having been a Holder and not because of such Holder's acts or
omissions or for some other reason, and shall reimburse such Holder for all
legal and other expenses reasonably incurred by him or her in connection with
any such claim or liability (upon proper and timely request by the Holder);
provided, however, that no Holder shall be entitled to indemnification by any
Series unless such Holder is a Holder of Interests of such Series.
SECTION 5.10. CLASSES OF INTERESTS. The Trustees may, without
approval of the Holders of any Interests, establish and designate classes of
Interests of any Series or divide Interests of any previously established Series
into two or more classes, Interests of each class having such preferences and
special or relative rights and privileges (including conversion rights, if any)
as the Trustees may determine in their sole discretion. The fact that a Series
shall have initially been established without classes (i.e., that all Interests
of such Series are initially of a single class), or that a Series shall have
more than one established class, shall not limit the authority of the Trustees
to establish separate classes, or one or more further classes, of such Series
without approval of the Holders of the initial class thereof, or previously
established class or classes thereof.
The establishment and designation of any class of Interests
shall be effective upon the execution by the Secretary or an Assistant Secretary
of the Trust, pursuant to authorization by a majority of the Trustees, of an
instrument setting forth such establishment and designation and the relative
rights and preferences of such class. The Trustees may amend the By-laws
providing for class votes and meetings and related matters. Notwithstanding
anything set forth in Section 5.10, classes of Interests within a Series shall
not be required to vote or receive distributions on a pro rata basis unless
required by applicable law or the terms of the instrument establishing such
class.
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ARTICLE VI
DECREASES AND WITHDRAWALS
-------------------------
SECTION 6.1. DECREASES AND WITHDRAWALS. A Holder shall have
the right on any day the New York Stock Exchange is open to decrease its
Interest in any Series, and to withdraw completely from any Series, at the next
determined net asset value attributable to the Interest (or portion thereof)
being withdrawn, and an appropriate adjustment therefor shall be made to such
Holder's Book Capital Account. The rights of a Holder upon withdrawal from a
Series shall be limited to the assets belonging to the Series from which the
withdrawal is made. The Trust may, subject to compliance with the 1940 Act,
charge fees for effecting such decrease or withdrawal, at such rates as the
Trustees may establish, and may at any time and from time to time, suspend such
right of decrease or withdrawal. The procedures for effecting decreases or
withdrawals shall be as determined by the Trustees from time to time, subject to
the requirements of the 1940 Act.
ARTICLE VII
DETERMINATION OF BOOK CAPITAL ACCOUNT BALANCES,
-----------------------------------------------
NET INCOME AND DISTRIBUTIONS
----------------------------
SECTION 7.1. BOOK CAPITAL ACCOUNT BALANCES. The Book Capital
Account balances of Holders of the Trust with respect to each Series shall be
determined on such days and at such time or times as the Trustees may determine,
consistent with the requirements of the 1940 Act, with income, gains and losses
of each Series or class thereof determined in accordance with generally accepted
accounting principles to be allocated among the Holders of such Series or class
thereof in accordance with their Interests. The power and duty to make
calculations of the Book Capital Account balances of the Holders may be
delegated by the Trustees to the Investment Adviser, Administrator, Custodian or
such other person as the Trustees may determine.
SECTION 7.2. ALLOCATIONS AND DISTRIBUTIONS TO HOLDERS. In
compliance with the Treasury Regulations promulgated under applicable provisions
of the Code, the Trustees shall (i) allocate items of taxable income, gain, loss
and deduction with respect to each Series to Holders of the Interests in such
Series, provided that, except as may otherwise be specifically provided in the
Treasury Regulations, in all cases allocations of specific types of income shall
be proportionate to the Interests of the Holders in that Series or class
thereof; and (ii) upon liquidation of a Series, make final distribution of the
net assets of such Series among the Holders of the Interests in such Series in
accordance with their respective Book Capital Accounts. The Trustees shall
provide each Holder that is a regulated investment company, as defined in
Section 851(a) of the Code, information that will enable it to take into account
its share of items of taxable income, gain, loss and deduction as they are taken
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into account by the Series in order to facilitate compliance with Code Section
4982. Any income tax withholding or other withholding of taxes required by law
with respect to the allocable share of income of, or distributions to, a Holder
shall be accounted for as a distribution to and charged to the Book Capital
Account of such Holder at the time of payment of such taxes to the applicable
taxing authority. The Trustees may always retain from the assets belonging to a
Series such amount as they may deem necessary to pay the liabilities belonging
to that Series.
SECTION 7.3. POWER TO MODIFY FOREGOING PROCEDURES.
Notwithstanding any of the foregoing provisions of this Article VII the Trustees
may prescribe, in their absolute discretion, such other bases and times for
determining the net income and net assets of the Trust and of each Series as
they may deem necessary or desirable to enable the Trust to comply with any
provision of the 1940 Act, any rule or regulation thereunder, or any order of
exemption issued by said Commission, all as in effect now or hereafter amended
or modified.
ARTICLE VIII
LIABILITY FOR TRUST OBLIGATIONS
-------------------------------
SECTION 8.1. LIABILITIES OF SERIES. Without limitation of the
provisions of Section 5.2(b) hereof, but subject to the right of the Trustees in
their discretion to allocate general liabilities, expenses, costs, charges or
services 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 of such Series only, and not
against the assets of any other Series or the Trust generally. Notice of this
limitation on interseries 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
Section 3810 of the Act, and upon the giving of such notice in the certificate
of trust, the statutory provisions of Section 3804(a) of the Act relating to
limitations on interseries liabilities (and the statutory effect under Section
3804(a) of setting forth such notice in the certificate of trust) shall become
applicable to the Trust and each Series. Every note, bond, contract or other
undertaking issued by or on behalf of a particular Series shall include a
recitation limiting the obligation represented thereby to that Series and its
assets.
SECTION 8.2. NO PERSONAL LIABILITY OF TRUSTEES, ETC.
---------------------------------------------------
(a) TRUSTEES. The Trustees shall be entitled to the protection
against personal liability for the obligations of the Trust under
Section 3803(b) of the Act. No Trustee shall be liable to the Trust,
its Holders or to any Trustee, officer, employee or agent thereof for
any action or failure to act (including, without limitation, the
failure to compel in any way any former or acting Trustee to redress
any breach of trust) except for his own bad faith, willful misfeasance,
gross negligence or reckless disregard of his duties.
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(b) OFFICERS, EMPLOYEES OR AGENTS OF THE TRUST. The officers,
employees and agents of the Trust shall be entitled to the protection
against personal liability for the obligations of the Trust under
Section 3803(c) of the Act. No officer, employee or agent of the Trust
shall be liable to the Trust, its Holders or to any Trustee, officer,
employee or agent thereof for any action or failure to act (including,
without limitation, the failure to compel in any way any former or
acting Trustee to redress any breach of trust) except for his own bad
faith, willful misfeasance, gross negligence or reckless disregard of
his duties.
(c) The provisions of this Declaration, to the extent that
they expand or restrict the duties and liabilities of the Trustees,
officers, employees or agents of the Trust otherwise existing at law or
in equity, are agreed by the Holders to modify to that extent such
other duties and liabilities.
SECTION 8.3. INDEMNIFICATION. The Trust shall indemnify each
of its Trustees, officers, employees and agents (including persons who serve at
its request as directors, officers or trustees of another organization in which
it has any interest, as a shareholder, creditor or otherwise) against all
liabilities and expenses (including amounts paid in satisfaction of judgments,
in compromise, as fines and penalties, and as counsel fees) reasonably incurred
by him in connection with the defense or disposition of any action, suit or
other proceeding, whether civil or criminal, in which he may be involved or with
which he may be threatened, while in office or thereafter, by reason of his
being or having been such a Trustee, officer, employee or agent, except with
respect to any matter as to which he shall have been adjudicated to have acted
in bad faith, willful misfeasance, gross negligence or reckless disregard of his
duties, such liabilities and expenses being liabilities belonging to the Series
out of which such claim for indemnification arises; provided, however, that as
to any matter disposed of by a compromise payment by such Person, pursuant to a
consent decree or otherwise, no indemnification either for said payment or for
any other expenses shall be provided unless there has been a determination that
such Person did not engage in willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of his office by the
court or other body approving the settlement or other disposition or, in the
absence of a judicial determination, by a reasonable determination, based upon a
review of readily available facts (as opposed to a full trial-type inquiry),
that he did not engage in such conduct, which determination shall be made by a
majority of a quorum of Trustees who are neither Interested Persons of the Trust
nor parties to the action, suit or proceeding, or by written opinion from
independent legal counsel approved by the Trustees. The rights accruing to any
Person under these provisions shall not exclude any other right to which he may
be lawfully entitled; provided that no Person may satisfy any right of indemnity
or reimbursement granted herein or to which he may be otherwise entitled except
out of the Trust Property. The Trust may make advance payments in connection
with indemnification under this Section 8.3; provided that any advance payment
of expenses by the Trust to any Trustee, officer, employee or agent shall be
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made only upon the undertaking by such Trustee, officer, employee or agent to
repay the advance unless it is ultimately determined that he is entitled to
indemnification as above provided, and only if one of the following conditions
is met:
(i) the Trustee, officer, employee or agent to be indemnified
provides a security for his undertaking;
(ii) the Trust shall be insured against losses arising by reason of
any lawful advances; or
(iii) there is a determination, based on a review of readily
available facts, that there is reason to believe that the
Trustee, officer, employee or agent to be indemnified
ultimately will be entitled to indemnification, which
determination shall be made by a majority of a quorum of
Trustees who are neither Interested Persons of the Trust nor
parties to the Proceedings, or an independent legal counsel in
a written opinion.
SECTION 8.4. NO PROTECTION AGAINST CERTAIN 1940 ACT
LIABILITIES. Nothing contained in Sections 8.1, 8.2 or 8.3 hereof shall protect
any Trustee or officer of the Trust from any liability to the Trust or its
Holders 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 his office. Nothing contained in Sections 8.1, 8.2 or 8.3 hereof or
in any agreement of the character described in Section 4.1 or 4.2 hereof shall
protect any Investment Adviser to the Trust or any Series against any liability
to the Trust or any Series to which he would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of his or
its duties to the Trust or Series, or by reason of his or its reckless disregard
to his or its obligations and duties under the agreement pursuant to which he
serves as Investment Adviser to the Trust or any Series.
SECTION 8.5. NO BOND REQUIRED OF TRUSTEES. No Trustee shall be
obligated to give any bond or other security for the performance of any of his
duties hereunder.
SECTION 8.6. NO DUTY OF INVESTIGATION; NOTICE IN TRUST
INSTRUMENTS, ETC. No purchaser, lender, seller or other Person dealing with the
Trustees or with any officer, employee or agent of the Trust shall be bound to
make any inquiry concerning the validity of any transaction purporting to be
made by the Trustees or by said officer, employee or agent or be liable for the
application of money or property paid, lent or delivered to or on the order of
the Trustees or of said officer, employee or agent. Every contract, undertaking,
instrument, certificate, interest or obligation or other security of the Trust,
and every other act or thing whatsoever executed in connection with the Trust,
shall be conclusively presumed to have been executed or done by the executors
thereof only in their capacity as Trustees under this Declaration or in their
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capacity as officers, employees or agents of the Trust. Every written
obligation, contract, instrument, certificate or other interest or undertaking
of the Trust made or sold by the Trustees or by any officer, employee or agent
of the Trust, in his capacity as such, may contain an appropriate recital to the
effect that the Holders, Trustees, officers, employees and agents of the Trust
shall not personally be bound by or liable thereunder, nor shall resort be had
to their private property for the satisfaction of any obligation or claim
thereunder, and appropriate references shall be made therein to the Declaration,
and may contain any further recital that they may deem appropriate, but the
omission of such recital shall not operate to impose personal liability on any
of the Holders, Trustees, officers, employees or agents of the Trust.
SECTION 8.7. INSURANCE. The Trustees may maintain insurance
for the protection of the Trust Property, its Holders, Trustees, officers,
employees and agents in such amount as the Trustees shall deem adequate to cover
possible tort liability, and such other insurance as the Trustees in their sole
judgment shall deem advisable.
SECTION 8.8. RELIANCE ON EXPERTS, ETC. Each Trustee, officer
or employee of the Trust shall, in the performance of his duties, be fully and
completely justified and protected with regard to any act or any failure to act
resulting from reliance in good faith upon the books of account or other records
of the Trust, upon an opinion of counsel, or upon reports made to the Trust by
any of its officers or employees or by any Investment Adviser, the
Administrator, accountant, appraiser or other expert or consultant selected with
reasonable care by the Trustees, officers or employees of the Trust, regardless
of whether such counsel or expert may also be a Trustee; provided that nothing
in this Section shall be deemed to exonerate the Trustees from their duties of
reasonable care, diligence and prudence or any other duties imposed by the 1940
Act.
SECTION 8.9. ACCOUNTING. The Trustees shall not be required to
file any inventory or accounting with any court or officer of any court, unless
specifically ordered to do so on the application of the Trustees or on the
application of the Holders of Interests of the Trust, or on the court's own
motion.
ARTICLE IX
HOLDERS
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SECTION 9.1. MEETINGS OF HOLDERS. Meetings of the Holders may
be called at any time by a majority of the Trustees and shall be called by any
Trustee upon written request of Holders holding, in the aggregate, not less than
10% of the Interests of a Series (if the meeting relates solely to that Series),
or not less than 10% of the Interests of the Trust (if the meeting relates to
the Trust and not solely to a particular Series), such request specifying the
purpose or purposes for which such meeting is to be called. Any such meeting
shall be held within or outside of the State of Delaware on such day and at such
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time as the Trustees shall designate. Holders of at least one-third of the
Interests of the Series (if the meeting relates solely to that Series) or
Holders of at least one-third of the Interests of the Trust (if the meeting
relates to the Trust and not solely to a particular Series), present in person
or by proxy, shall constitute a quorum for the transaction of any business,
except as may otherwise be required by the 1940 Act or other applicable law or
by this Declaration or the By-Laws of the Trust. If a quorum is present at a
meeting, an affirmative vote by the Holders present, in person or by proxy,
holding more than 50% of the total Interests of the Holders present, either in
person or by proxy, at such meeting constitutes the action of the Holders,
unless the 1940 Act, other applicable law, this Declaration or the By-Laws of
the Trust require a greater number of affirmative votes.
SECTION 9.2. NOTICE OF MEETINGS. Notice of all meetings of the
Holders stating the time, place and purposes of the meeting shall be given by
the Trustees by mail to each Holder of the Series or class thereof or the Trust,
as the case may be, at his registered address or transmitted to the Holders by
any other method permitted by law, sent at least 10 days and not more than 90
days before the meeting. At any such meeting, any business properly before the
meeting may be considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further notice.
SECTION 9.3. RECORD DATE FOR MEETINGS. For the purpose of
determining Holders who are entitled to notice of and to vote at any meeting, or
to participate in any distribution, or for the purpose of any other action, the
Trustees may from time to time fix a date, not more than 90 days prior to the
date of any meeting of the Holders or payment of distributions or other action,
as the case may be, as a record date for the determination of the Persons to be
treated as Holders of record of a particular Series or the Trust for such
purposes.
SECTION 9.4. PROXIES, ETC. At any meeting of Holders, any
Holder entitled to vote thereat may vote by proxy, provided that no proxy shall
be voted at any meeting unless it shall have been placed on file with the
Secretary, or with such other officer or agent of the Trust as the Secretary may
direct, for verification prior to the time at which such vote shall be taken.
Pursuant to a resolution of a majority of the Trustees, proxies may be solicited
in the name of one or more Trustees or one or more of the officers of the Trust.
Only Holders of record shall be entitled to vote. Each Holder shall be entitled
to vote proportionate to his Interest in the Trust or in any Series (as the
context may require). When Interests are held jointly by several persons, any
one of them may vote at any meeting in person or by proxy in respect of such
Interest, but if more than one of them shall be present at such meeting in
person or by proxy, and such joint owners or their proxies so present disagree
as to any vote to be cast, such vote shall not be received in respect of such
Interest. A proxy purporting to be executed by or on behalf of a Holder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. If the Holder is a minor or a
person of unsound mind, and subject to guardianship or to the legal control of
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any other person as regards the charge or management of his Interest, he may
vote by his guardian or such other person appointed or having such control, and
such vote may be given in person or by proxy.
SECTION 9.5. REPORTS. The Trustees shall cause to be prepared,
at least annually, a report of operations containing a balance sheet and
statement of income and undistributed income of each Series prepared in
conformity with generally accepted accounting principles and an opinion of an
independent public accountant on such financial statements. The Trustees shall,
in addition, furnish to the Holders at least semiannually interim reports
containing an unaudited balance sheet as of the end of such period and an
unaudited statement of income and surplus for the period from the beginning of
the current fiscal year to the end of such period.
SECTION 9.6. INSPECTION OF RECORDS. Subject to such
restrictions as the Trustees may reasonably impose, the records of the Trust
shall be open to inspection by Holders during normal business hours for any
purpose not harmful to the Trust.
SECTION 9.7. HOLDER ACTION BY WRITTEN CONSENT. Any action that
may be taken by Holders may be taken without a meeting if Holders holding, in
the aggregate, more than 50% of the total Interests entitled to vote (or such
larger proportion thereof as shall be required by any express provision of this
Declaration) shall consent to the action in writing or by any other method
permitted by law and evidence of the consents are filed with the records of the
meetings of Holders. Such consent shall be treated for all purposes as a vote
taken at a meeting of Holders.
ARTICLE X
DURATION; TERMINATION OF
------------------------
TRUST OR SERIES; AMENDMENT; MERGERS; ETC.
-----------------------------------------
SECTION 10.1. DURATION. Subject to possible dissolution or
termination in accordance with Sections 10.2 and 10.3, respectively, the Trust
created hereby shall have perpetual existence.
SECTION 10.2. DISSOLUTION OF SERIES OR TRUST. Any Series shall
be dissolved by unanimous consent/resolution adopted by a majority of the
Trustees by notice of dissolution to the Holders of the Interests of the Series.
The Trust shall be dissolved upon the dissolution of the last remaining Series.
SECTION 10.3. TERMINATION OF TRUST OR SERIES.
(a) Upon an event of dissolution of the Trust or a Series, the
Trust or Series shall be terminated in accordance with the following
provisions:
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(i) The Trust (or Series, as applicable) shall
thereafter carry on no business except for the purpose of
winding up its affairs.
(ii) The Trustees shall proceed to wind up the
affairs of the Trust (or Series, as applicable) in accordance
with Section 3808 of the Act, and all of the powers of the
Trustees under this Declaration shall continue until the
affairs of the Trust (or Series, as applicable) shall have
been wound up, including the power to fulfill or discharge the
contracts of the Trust (or Series, as applicable), collect its
assets, sell, convey, assign, exchange, transfer or otherwise
dispose of all or any part of the remaining Trust Property (or
assets belonging to the Series, as applicable) to one or more
persons at public or private sale for consideration that may
consist in whole or in part of cash, securities or other
property of any kind, discharge or pay its liabilities, and to
do all other acts appropriate to liquidate its business.
(iii) After paying or adequately providing for the
payment of all liabilities belonging to the Series subject of
termination and upon receipt of such releases, indemnities and
refunding agreements as they deem necessary for their
protection, the Trustees may distribute the remaining Trust
Property or assets belonging to such Series, in cash or in
kind or partly each, among the Holders of such Series
according to their Book Capital Accounts in such Series. In
all cases, as herein provided, the rights of Holders of
Interests in a Series upon termination and liquidation of that
Series shall be limited to the assets belonging to that
Series.
(b) After termination of the Trust or Series and distribution
to the Holders as herein provided, a majority of the Trustees shall
execute and lodge among the records of the Trust an instrument in
writing setting forth the fact of such termination. Upon termination of
the Trust, the Trustees shall file a certificate of cancellation in
accordance with Section 3810 of the Act and such Trustees shall,
subject to Section 3808 of the Act, thereupon be discharged from all
further liabilities and duties hereunder, and the rights and interests
of all Holders shall thereupon cease.
SECTION 10.4. AMENDMENT PROCEDURE.
----------------------------------
(a) Two-thirds (2/3) of the Trustees then in office may amend
this Declaration at any time for any purpose without the approval of
the Holders of Interests; provided, that the vote or a written or other
legally permissible form of consent of Holders holding, in the
aggregate, more than 50% of the total outstanding Interests or of
Holders of 67% or more of the Interests voting or consenting, if
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Holders of at least 50% of such Interests vote or consent, shall be
necessary to approve any amendment whenever such vote or consent is
required under the 1940 Act.
(b) Nothing contained in this Declaration shall permit the
amendment of this Declaration to impair the exemption from personal
liability of Holders, Trustees, officers, employees and agents of the
Trust.
(c) A certificate signed by a Trustee or by the Secretary or
any Assistant Secretary of the Trust, setting forth an amendment and
reciting that it was duly adopted by the Holders or by the Trustees as
aforesaid or a copy of the Declaration, as amended, certified by a
Trustee or the Secretary or any Assistant Secretary of the Trust,
certifying that such Declaration is a true and correct copy of the
Declaration as amended, shall be conclusive evidence of such amendment
when lodged among the records of the Trust.
Notwithstanding any other provision hereof, until such time as
Interests are first sold to an Institutional Investor, this Declaration may be
terminated or amended in any respect by vote or written consent of the Trustees.
SECTION 10.5. MERGER, CONSOLIDATION, CONVERSION AND SALE OF ASSETS.
-------------------------------------------------------------------
(a) The Trust may convert or merge into or consolidate with
any corporation, association, other trust or other organization or the
Trust or any Series thereof may sell, lease or exchange all or
substantially all of the Trust Property belonging to such Series,
including its good will, upon such terms and conditions and for such
consideration when and as authorized by vote or written or other
legally permissible form of consent of two-thirds (2/3) of the Trustees
then in office; provided that any sale, conveyance, assignment,
exchange, transfer or other disposition of all or substantially all of
the Trust Property or substantially all of the assets belonging to a
particular Series other than for cash, shall require approval of the
principal terms of the transaction and the nature and amount of the
consideration by the vote at a meeting, or by written consent, of
Holders holding, in the aggregate, more than 50% of the total
outstanding Interests of the Trust or Series, as the case may be,
entitled to vote. In accordance with Section 3815(f) of the Act, an
agreement of merger or consolidation may effect any amendment to this
Declaration or the By-Laws or effect the adoption of a new declaration
or by-laws of the Trust if the Trust is the surviving or resulting
entity.
(b) The Trustees may cause to be organized or assist in
organizing a corporation or corporations under the laws of any
jurisdiction or any other trust, partnership, association or other
organization to take over all of the Trust Property, or Series thereof
or to carry on any business in which the Trust shall directly or
indirectly have any interest, and to sell, convey and transfer the
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Trust Property or Series thereof to any such corporation, trust,
association or organization in exchange for the equity interests
thereof or otherwise, and to lend money to, subscribe for the equity
interests of, and enter into any contracts with any such corporation,
trust, partnership, association or organization, or any corporation,
partnership, trust, association or organization in which the Trust
holds or is about to acquire equity interests. The Trustees may also
cause a merger or consolidation between the Trust or any successor
thereto and any such corporation, trust, partnership, association or
other organization if and to the extent permitted by law, as provided
under the law then in effect. Nothing contained herein shall be
construed as requiring approval of the Holders for the Trustees to
organize or assist in organizing one or more corporations, trusts,
partnerships, associations or other organizations and selling,
conveying or transferring a portion of the Trust Property to such
organizations or entities.
ARTICLE XI
MISCELLANEOUS
-------------
SECTION 11.1. CERTIFICATE OF TRUST; REGISTERED AGENT.
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(a) The initial Trustees are hereby authorized and directed to
execute and deliver, and shall file a certificate of trust in
accordance with Section 3810 of the Act.
(b) The Trust shall comply with Section 3807(b) of the Act by
having and maintaining a registered office in Delaware and by designating a
registered agent for service of process on the Trust, which agent shall have the
same business office as the Trust's registered office. The Trust initially
appoints Corporation Service Company as the Registered Agent of the Trust.
SECTION 11.2. GOVERNING LAW. This Declaration is executed by
all of the Trustees and delivered with reference to the Act and the laws of the
State of Delaware, and the rights of all parties and the validity and
construction of every provision hereof shall be governed by, subject to and
construed according to the Act and the laws of the State of Delaware (unless and
to the extent otherwise provided for and/or preempted by the 1940 Act or other
applicable federal securities laws); provided, however, that there shall not be
applicable to the Trust, the Trustees, the Holders or this Declaration (a) the
provisions of Section 3540 of Title 12 of the Delaware Code or (b) any
provisions of the laws (statutory or common) of the State of Delaware (other
than the Act) pertaining to trusts that are inconsistent with the rights,
duties, powers, limitations or liabilities of the Trustees or the Holders set
forth or referenced in this Declaration.
SECTION 11.3. COUNTERPARTS. The Declaration may be
simultaneously executed in several counterparts, each of which shall be deemed
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to be an original, and such counterparts, together, shall constitute one and the
same instrument, which shall be sufficiently evidenced by any such original
counterpart.
SECTION 11.4. RELIANCE BY THIRD PARTIES. Any certificate
executed by an individual who, according to the records of the Trust, appears to
be a Trustee hereunder, or Secretary, Assistant Secretary, Treasurer or
Assistant Treasurer of the Trust, certifying to: (a) the number or identity of
Trustees or Holders, (b) the due authorization of the execution of any
instrument or writing, (c) the form of any vote passed at a meeting of Trustees
or Holders, (d) the fact that the number of Trustees or Holders present at any
meeting or executing any written instrument satisfies the requirements of this
Declaration, (e) the form of any By-Laws adopted by or the identity of any
officers elected by the Trustees, or (f) the existence of any fact or facts that
in any manner relate to the affairs of the Trust, shall be conclusive evidence
as to the matters so certified in favor of any Person dealing with the Trustees
and their successors.
SECTION 11.5. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS.
-------------------------------------------------------------
(a) The provisions of this Declaration are severable, and if
the Trustees shall determine, with the advice of counsel, that any of
such provisions are in conflict with the 1940 Act, the regulated
investment company provisions of the Code, the Act or, consistent with
Section 11.2, any other applicable Delaware law regarding
administration of trusts, or with other applicable laws and
regulations, the conflicting provisions shall be deemed superseded by
such law or regulation to the extent necessary to eliminate such
conflict; provided, however, that such determination shall not affect
any of the remaining provisions of this Declaration or render invalid
or improper any action taken or omitted prior to such determination.
(b) If any provision of this Declaration shall be held invalid
or unenforceable in any jurisdiction, such invalidity or
unenforceability shall pertain only to such provision in such
jurisdiction and shall not in any manner affect such provision in any
other jurisdiction or any other provision of this Declaration in any
jurisdiction.
SECTION 11.6. TRUST ONLY. It is the intention of the Trustees
to create only a business trust under the Act with the relationship of trustee
and beneficiary between the Trustees and each Holder from time to time. It is
not the intention of the Trustees to create a general partnership, limited
partnership, joint stock association, corporation, bailment or any form of legal
relationship other than a Delaware business trust except to the extent such
trust is deemed to constitute a partnership under the Code and applicable state
tax laws. Nothing in this Declaration shall be construed to make the Holders,
either by themselves or with the Trustees, partners or members of a joint stock
association.
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IN WITNESS WHEREOF, the undersigned have executed this instrument as of
this 29th day of August, 2000.
By: /S/ ROBERT J. SULLIVAN
Name: Robert J. Sullivan
Title: Trustee
By: /S/ KEVIN M. HAGGERTY
Name: Kevin M. Haggerty
Title: Trustee
By: /S/ MICHAEL D. MUFFOLETTO
Name: Michael D. Muffoletto
Title: Trustee
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