Exhibit (a)(i) under Form N-1A
Exhibit 3(i) under Item 601/Reg. S-K
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
of
MTB GROUP OF FUNDS
a Delaware Statutory Trust
ARTICLE I. Name and Definitions 1
Section 1. Name 2
Section 2. Registered Agent and Registered Office; Principal
Place of Business 2
(a) Registered Agent and Registered Office 2
(b) Principal Place of Business 2
Section 3. Definitions 2
(a) "1940 Act" 2
(b) "Affiliate" 2
(c) "Board of Trustees" 2
(d) "By-Laws" 2
(e) "Certificate of Trust" 2
(f) "Code" 2
(g) "Commission" 2
(h) "DSTA" 2
(i) "Declaration of Trust" 2
(j) "General Liabilities" 2
(k) "Interested Person" 2
(l) "Investment Adviser" or "Adviser" 2
(m) "Person" 2
(n) "Principal Underwriter" 2
(o) "Series" 2
(p) "Shares" 2
(q) "Shareholder" 2
(r) "Trust" 2
(s) "Trust Property" 2
(t) "Trustee" or "Trustees" 2
ARTICLE II. Purpose of Trust 2
ARTICLE III. Shares 2
Section 1. Division of Beneficial Interest 2
Section 2. Ownership of Shares 2
Section 3. Investments in the Trust 2
Section 4. Status of Shares and Limitation of Personal
Liability 2
Section 5. Power of Board of Trustees to Change Provisions
Relating to Shares 2
Section 6. Establishment and Designation of Series 2
(a) Assets Held with Respect to a Particular Series 2
(b) Liabilities Held with Respect to a Particular
Series or Class 2
(c) Dividends, Distributions, Redemptions and
Repurchases 2
(d) Voting 2
(e) Equality 2
(f) Fractions 2
(g) Exchange Privilege 2
(h) Combination of Series or Class 2
(i) Elimination of Series or Class 2
ARTICLE IV. The Board of Trustees 2
Section 1. Number, Election and Tenure 2
Section 2. Effect of Death, Resignation, Removal, etc. of a
Trustee 2
Section 3. Powers 2
Section 4. Payment of Fees and Expenses by the Trust 2
Section 5. Payment of Fees and Expenses by Shareholders 2
Section 6. Ownership of Trust Property 2
Section 7. Service Contracts 2
Section 8. Compensation 2
ARTICLE V. Shareholders' Voting Powers and Meetings 2
Section 1. Voting Powers 2
Section 2. Meetings 2
Section 3. Quorum and Required Vote 2
Section 4. Shareholder Action by Written Consent without a
Meeting 2
Section 5. Record Dates 2
Section 6. Additional Provisions 2
ARTICLE VI. Net Asset Value, Distributions and Redemptions 2
Section 1. Determination of Net Asset Value, Net Income and
Distributions 2
Section 2. Redemptions at the Option of a Shareholder 2
Section 3. Redemptions at the Option of the Trust 2
ARTICLE VII. Limitation of Liability; Indemnification 2
Section 1. Trustees, Shareholders, etc. Not Personally Liable 2
Section 2. Officers and Trustees' Good Faith Action, Expert
Advice, No Bond or Surety 2
Section 3. Indemnification of Shareholders 2
Section 4. Indemnification of Trustees, Officers, etc. 2
Section 5. Compromise Payment 2
Section 6. Indemnification Not Exclusive, etc. 2
Section 7. Insurance 2
Section 8. Liability of Third Persons Dealing with Trustees 2
Section 9. Derivative Actions 22
ARTICLE VIII. Miscellaneous 2
Section 1. Dissolution and Liquidation of Trust, Series, or
Class 2
Section 2. Merger and Consolidation; Conversion 2
(a) Merger and Consolidation. 2
(b) Conversion 2
Section 3. Reorganization 2
Section 4. Amendments 2
Section 5. Filing of Copies, References, Headings 2
Section 6. Applicable Law 2
Section 7. Provisions in Conflict with Law or Regulations 2
Section 8. Statutory Trust Only 2
Section 9. Use of the Trademark "MTB Group of Funds" 26
AGREEMENT AND DECLARATION OF TRUST
OF
MTB GROUP OF FUNDS
AGREEMENT AND DECLARATION OF TRUST made as of this 15th day of
August. 2003, by the Trustees hereunder, and by the holders of shares of
beneficial interest to be issued hereunder as hereinafter provided. This
Agreement and Declaration of Trust shall be effective upon the filing of
the Certificate of Trust in the office of the Secretary of State of the
State of Delaware.
W I T N E S S E T H:
WHEREAS this Trust has been formed to carry on the business of an
investment company; and
WHEREAS this Trust is authorized to issue its shares of beneficial
interest in separate Series, and to issue classes of Shares of any Series
or divide Shares of any Series into two or more classes, all in accordance
with the provisions hereinafter set forth; and
WHEREAS the Trustees have agreed to manage all property coming into
their hands as trustees of a Delaware statutory trust in accordance with
the provisions of the Delaware Statutory Trust Act (12 Del. C. ss.3801, et
seq.), as from time to time amended and including any successor statute of
similar import (the "DSTA"), and the provisions hereinafter set forth.
NOW, THEREFORE, the Trustees hereby declare that they will hold all
cash, securities and other assets which they may from time to time acquire
in any manner as Trustees hereunder IN TRUST to manage and dispose of the
same upon the following terms and conditions for the benefit of the
holders from time to time of shares of beneficial interest in this Trust
and the Series created hereunder as hereinafter set forth.
ARTICLE I.
Name and Definitions
Section 1. Name. This Trust shall be known as "MTB Group of Funds"
and the Trustees shall conduct the business of the Trust under that name,
or any other name as they may from time to time determine.
Section 2. Registered Agent and Registered Office; Principal Place
of Business.
(a) Registered Agent and Registered Office. The name of the
registered agent of the Trust and the address of the registered office of
the Trust are as set forth on the Certificate of Trust.
(b) Principal Place of Business. The principal place of business
of the Trust is 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, 00000-0000
or such other location within or outside of the State of Delaware as the
Board of Trustees may determine from time to time.
Section 3. Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) "1940 Act" shall mean the Investment Company Act of 1940 and
the rules and regulations thereunder, all as adopted or amended from time
to time;
(b) "Affiliate" shall have the meaning given to it in Section
2(a)(3) of the 1940 Act when used with reference to a specified Person;
(c) "Board of Trustees" shall mean the governing body of the
Trust, which is comprised of the Trustees of the Trust;
(d) "By-Laws" shall mean the By-Laws of the Trust, as amended from
time to time in accordance with Article IX of the By-Laws, and
incorporated herein by reference;
(e) "Certificate of Trust" shall mean the certificate of trust
filed with the Office of the Secretary of State of the State of Delaware
as required under the DSTA to form the Trust;
(f) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the rules and regulations thereunder;
(g) "Commission" shall have the meaning given it in Section
2(a)(7) of the 1940 Act;
(h) "DSTA" shall mean the Delaware Statutory Trust Act (12 Del. C.
ss.3801, et seq.), as amended from time to time;
(i) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust, as amended or restated from time to time;
(j) "General Liabilities" shall have the meaning given it in
Article III, Section 6(b) of this Declaration Trust;
(k) "Interested Person" shall have the meaning given it in Section
2(a)(19) of the 1940 Act;
(l) "Investment Adviser" or "Adviser" shall mean a party
furnishing services to the Trust pursuant to any contract described in
Article IV, Section 7(a) hereof;
(m) "Person" shall include a natural person, partnership, limited
partnership, trust, estate, association, corporation, custodian, nominee
or any other individual or entity in its own or any representative
capacity;
(n) "Principal Underwriter" shall have the meaning given to it in
Section 2(a)(29) of the 1940 Act;
(o) "Series" shall refer to each Series of Shares established and
designated under or in accordance with the provisions of Article III and
shall mean an entity such as that described in Section 18(f)(2) of the
1940 Act, and subject to Rule 18f-2 thereunder;
(p) "Shares" shall mean the outstanding shares of beneficial
interest into which the beneficial interest in the Trust shall be divided
from time to time, and shall include fractional and whole shares;
(q) "Shareholder" shall mean a record owner of Shares;
(r) "Trust" shall refer to the Delaware statutory trust
established by this Declaration of Trust, as amended from time to time;
(s) "Trust Property" shall mean any and all property, real or
personal, tangible or intangible, which is owned or held by or for the
account of the Trust or one or more of any Series, including, without
limitation, the rights referenced in Article VIII, Section 2 hereof; and
(t) "Trustee" or "Trustees" shall refer to each signatory to this
Declaration of Trust as a trustee, so long as such signatory continues in
office in accordance with the terms hereof, and all other Persons who may,
from time to time, be duly elected or appointed, qualified and serving on
the Board of Trustees in accordance with the provisions hereof. Reference
herein to a Trustee or the Trustees shall refer to such Person or Persons
in their capacity as trustees hereunder.
ARTICLE II.
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on the
business of a registered management investment company registered under
the 1940 Act through one or more Series investing primarily in securities
and, in addition to any authority given by law, to exercise all of the
powers and to do any and all of the things as fully and to the same extent
as any private corporation organized for profit under the general
corporation law of the State of Delaware, now or hereafter in force,
including, without limitation, the following powers:
(a) To invest and reinvest cash, to hold cash uninvested, and to
subscribe for, invest in, reinvest in, purchase or otherwise acquire, own,
hold, pledge, sell, assign, mortgage, transfer, exchange, distribute,
write options on, lend or otherwise deal in or dispose of contracts for
the future acquisition or delivery of fixed income or other securities,
and securities or property of every nature and kind, including, without
limitation, all types of bonds, debentures, stocks, preferred stocks,
negotiable or non-negotiable instruments, obligations, evidences of
indebtedness, certificates of deposit or indebtedness, commercial paper,
repurchase agreements, bankers' acceptances, and other securities of any
kind, issued, created, guaranteed, or sponsored by any and all Persons,
including, without limitation, states, territories, and possessions of the
United States and the District of Columbia and any political subdivision,
agency, or instrumentality thereof, any foreign government or any
political subdivision of the U.S. Government or any foreign government, or
any international instrumentality, or by any bank or savings institution,
or by any corporation or organization organized under the laws of the
United States or of any state, territory, or possession thereof, or by any
corporation or organization organized under any foreign law, or in "when
issued" contracts for any such securities, and to change the investments
of the assets of the Trust;
(b) To exercise any and all rights, powers and privileges with
reference to or incident to ownership or interest, use and enjoyment of
any of such securities and other instruments or property of every kind and
description, including, but without limitation, the right, power and
privilege to own, vote, hold, purchase, sell, negotiate, assign, exchange,
lend, transfer, mortgage, hypothecate, lease, pledge or write options with
respect to or otherwise deal with, dispose of, use, exercise or enjoy any
rights, title, interest, powers or privileges under or with reference to
any of such securities and other instruments or property, the right to
consent and otherwise act with respect thereto, with power to designate
one or more Persons, to exercise any of said rights, powers, and
privileges in respect of any of said instruments, and to do any and all
acts and things for the preservation, protection, improvement and
enhancement in value of any of such securities and other instruments or
property;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate, lease
or write options with respect to or otherwise deal in any property rights
relating to any or all of the assets of the Trust or any Series, subject
to any requirements of the 1940 Act;
(d) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property; and to execute and
deliver proxies or powers of attorney to such person or persons as the
Trustees shall deem proper, granting to such person or persons such power
and discretion with relation to securities or property as the Trustees
shall deem proper;
(e) To exercise powers and rights of subscription or otherwise
which in any manner arise out of ownership of securities;
(f) To hold any security or property in a form not indicating that
it is trust property, whether in bearer, unregistered or other negotiable
form, or in its own name or in the name of a custodian or subcustodian or
a nominee or nominees or otherwise or to authorize the custodian or a
subcustodian or a nominee or nominees to deposit the same in a securities
depository;
(g) To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation or issuer of
any security which is held in the Trust; to consent to any contract,
lease, mortgage, purchase or sale of property by such corporation or
issuer; and to pay calls or subscriptions with respect to any security
held in the Trust;
(h) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that connection
to deposit any security with, or transfer any security to, any such
committee, depositary or trustee, and to delegate to them such power and
authority with relation to any security (whether or not so deposited or
transferred) as the Trustees shall deem proper, and to agree to pay, and
to pay, such portion of the expenses and compensation of such committee,
depositary or trustee as the Trustees shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims in favor
of or against the Trust or any matter in controversy, including but not
limited to claims for taxes;
(j) To enter into joint ventures, general or limited partnerships
and any other combinations or associations;
(k) To endorse or guarantee the payment of any notes or other
obligations of any Person; to make contracts of guaranty or suretyship, or
otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property such
insurance as the Trustees may deem necessary or appropriate for the
conduct of the business, including, without limitation, insurance policies
insuring the assets of the Trust or payment of distributions and principal
on its portfolio investments, and insurance policies insuring the
Shareholders, Trustees, officers, employees, agents, Investment Advisers,
Principal Underwriters, or independent contractors of the Trust,
individually against all claims and liabilities of every nature arising by
reason of holding Shares, holding, being or having held any such office or
position, or by reason of any action alleged to have been taken or omitted
by any such Person as Trustee, officer, employee, agent, Investment
Adviser, Principal Underwriter, or independent contractor, to the fullest
extent permitted by this Declaration of Trust, the Bylaws and by
applicable law;
(m) To adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of providing
such retirement and other benefits, for any or all of the Trustees,
officers, employees and agents of the Trust;
(n) To purchase or otherwise acquire, own, hold, sell, negotiate,
exchange, assign, transfer, mortgage, pledge or otherwise deal with,
dispose of, use, exercise or enjoy, property of all kinds;
(o) To buy, sell, mortgage, encumber, hold, own, exchange, rent or
otherwise acquire and dispose of, and to develop, improve, manage,
subdivide, and generally to deal and trade in real property, improved and
unimproved, and wheresoever situated; and to build, erect, construct,
alter and maintain buildings, structures, and other improvements on real
property;
(p) To borrow or raise moneys for any of the purposes of the
Trust, and to mortgage or pledge the whole or any part of the property and
franchises of the Trust, real, personal, and mixed, tangible or
intangible, and wheresoever situated;
(q) To enter into, make and perform contracts and undertakings of
every kind for any lawful purpose, without limit as to amount; and
(r) To issue, purchase, sell and transfer, reacquire, hold, trade
and deal in Shares, bonds, debentures and other securities, instruments or
other property of the Trust, from time to time, to such extent as the
Board of Trustees shall, consistent with the provisions of this
Declaration of Trust, determine; and to repurchase, re-acquire and redeem,
from time to time, its Shares or, if any, its bonds, debentures and other
securities.
The Trust shall not be limited to investing in obligations maturing
before the possible dissolution of the Trust or one or more of its
Series. The Trust shall not in any way be bound or limited by any present
or future law or custom in regard to investment by fiduciaries. Neither
the Trust nor the Trustees shall be required to obtain any court order to
deal with any assets of the Trust or take any other action hereunder.
The foregoing clauses shall each be construed as purposes, objects
and powers, and it is hereby expressly provided that the foregoing
enumeration of specific purposes, objects and powers shall not be held to
limit or restrict in any manner the powers of the Trust, and that they are
in furtherance of, and in addition to, and not in limitation of, the
general powers conferred upon the Trust by the DSTA and the other laws of
the State of Delaware or otherwise; nor shall the enumeration of one thing
be deemed to exclude another, although it be of like nature, not expressed.
ARTICLE III.
Shares
Section 1. Division of Beneficial Interest. The beneficial
interest in the Trust shall at all times be divided into Shares, all
without par value. The number of Shares authorized hereunder is
unlimited. The Board of Trustees may authorize the division of Shares
into separate and distinct Series and the division of any Series into
separate classes of Shares. The different Series and classes shall be
established and designated, and the variations in the relative rights and
preferences as between the different Series and classes shall be fixed and
determined by the Board of Trustees without the requirement of Shareholder
approval. If no separate Series or classes shall be established, the
Shares shall have the rights and preferences provided for herein and in
Article III, Section 6 hereof to the extent relevant and not otherwise
provided for herein, and all references to Series and classes shall be
construed (as the context may require) to refer to the Trust. The fact
that a Series shall have initially been established and designated without
any specific establishment or designation of classes (i.e., that all
Shares of such Series are initially of a single class) shall not limit the
authority of the Board of Trustees to establish and designate separate
classes of said Series. The fact that a Series shall have more than one
established and designated class, shall not limit the authority of the
Board of Trustees to establish and designate additional classes of said
Series, or to establish and designate separate classes of the previously
established and designated classes.
The Board of Trustees shall have the power to issue Shares of the
Trust, or any Series or class thereof, from time to time for such
consideration (but not less than the net asset value thereof) and in such
form as may be fixed from time to time pursuant to the direction of the
Board of Trustees.
The Board of Trustees may hold as treasury shares, reissue for such
consideration and on such terms as they may determine, or cancel, at their
discretion from time to time, any Shares of any Series reacquired by the
Trust. The Board of 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. Notwithstanding the foregoing, the Trust
and any Series thereof may acquire, hold, sell and otherwise deal in, for
purposes of investment or otherwise, the Shares of any other Series of the
Trust or Shares of the Trust, and such Shares shall not be deemed treasury
shares or canceled.
Subject to the provisions of Section 6 of this Article III, each
Share shall have voting rights as provided in Article V hereof, and the
Shareholders of any Series shall be entitled to receive dividends and
distributions, when, if and as declared with respect thereto in the manner
provided in Article IV, Section 3 hereof. No Share shall have any
priority or preference over any other Share of the same Series or class
with respect to dividends or distributions paid in the ordinary course of
business or distributions upon dissolution of the Trust or of such Series
or class made pursuant to Article VIII, Section 1 hereof. All dividends
and distributions shall be made ratably among all Shareholders of a
particular class or Series from the Trust Property held with respect to
such Series according to the number of Shares of such class of such Series
held of record by such Shareholders on the record date for any dividend or
distribution. Shareholders shall have no preemptive or other right to
subscribe to new or additional Shares or other securities issued by the
Trust or any Series. The Trustees may from time to time divide or combine
the Shares of any particular Series into a greater or lesser number of
Shares of that Series. Such division or combination may not materially
change the proportionate beneficial interests of the Shares of that Series
in the Trust Property held with respect to that Series or materially
affect the rights of Shares of any other Series.
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 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 purchase
Shares 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 such Shares generally.
Section 2. Ownership of Shares. The ownership of Shares shall be
recorded on the books of the Trust kept by the Trust or by a transfer or
similar agent for the Trust, which books shall be maintained separately
for the Shares of each Series and class thereof that has been established
and designated. No certificates certifying the ownership of Shares shall
be issued except as the Board of Trustees may otherwise determine from
time to time. The Board of Trustees may make such rules not inconsistent
with the provisions of the 1940 Act as it considers appropriate for the
issuance of Share certificates, the transfer of Shares of each Series or
class and similar matters. The record books of the Trust as kept by the
Trust or any transfer or similar agent, as the case may be, shall be
conclusive as to who are the Shareholders of each Series or class thereof
and as to the number of Shares of each Series or class thereof held from
time to time by each such Shareholder.
Section 3. Investments in the Trust. Investments may be accepted
by the Trust from such Persons, at such times, on such terms, and for such
consideration as the Board of Trustees may, from time to time, authorize.
Each investment shall be credited to the individual Shareholder's account
in the form of full and fractional Shares of the Trust, in such Series or
class as the purchaser may select, at the net asset value per Share next
determined for such Series or class after receipt of the investment;
provided, however, that the Principal Underwriter may, in its sole
discretion, impose a sales charge upon investments in the Trust.
Section 4. Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving to Shareholders only
the rights provided in this Declaration of Trust and under applicable
law. Every Shareholder by virtue of having become a Shareholder shall be
held to have expressly assented and agreed to the terms hereof and to have
become a party hereto. The death of a Shareholder during the existence of
the Trust shall not operate to dissolve the Trust or any Series, 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
or any Series, but entitles such representative only to the rights of said
deceased Shareholder under this Declaration of Trust. Ownership of Shares
shall not entitle the Shareholder to any title in or to the whole or any
part of the Trust Property or right to call for a partition or division of
the same or for an accounting, nor shall the ownership of Shares
constitute the Shareholders as partners. Neither the Trust nor the
Trustees, nor any officer, employee or agent of the Trust, shall have any
power to bind personally any Shareholder, nor, except as specifically
provided herein, to call upon any Shareholder for the payment of any sum
of money other than such as the Shareholder may at any time personally
agree to pay. All Shares when issued on the terms determined by the Board
of Trustees shall be fully paid and nonassessable. As provided in the
DSTA, Shareholders of the Trust shall be entitled to the same limitation
of personal liability extended to stockholders of a private corporation
organized for profit under the general corporation law of the State of
Delaware.
Section 5. Power of Board of Trustees to Change Provisions Relating
to Shares. Notwithstanding any other provisions of this Declaration of
Trust and without limiting the power of the Board of Trustees to amend
this Declaration of Trust or the Certificate of Trust as provided
elsewhere herein, the Board of Trustees shall have the power to amend this
Declaration of Trust, or the Certificate of Trust, at any time and from
time to time, in such manner as the Board of Trustees may determine in its
sole discretion, without the need for Shareholder action, so as to add to,
delete, replace or otherwise modify any provisions relating to the Shares
contained in this Declaration of Trust, provided that Shareholder approval
is not otherwise required by the 1940 Act or other applicable law.
The Board of Trustees shall have the power, in its discretion, to
make such elections as to the tax status of the Trust as may be permitted
or required under the Code as presently in effect or as amended, without
the vote of any Shareholder.
Section 6. Establishment and Designation of Series. The
establishment and designation of any Series or class of Shares shall be
effective upon the resolution by a majority of the then Board of Trustees,
adopting a resolution which sets forth such establishment and designation
and the relative rights and preferences of such Series or class. Each
such resolution shall be incorporated herein by reference upon adoption.
Each Series shall be separate and distinct from any other Series and
shall maintain separate and distinct records on the books of the Trust,
and the assets and liabilities belonging to any such Series shall be held
and accounted for separately from the assets and liabilities of the Trust
or any other Series.
Shares of each Series or class established pursuant to this Section
6, unless otherwise provided in the resolution establishing such Series,
shall have the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series. 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 from whatever source derived, including, without limitation, any
proceeds derived from the sale, exchange or liquidation of such assets,
and any funds or payments derived from any reinvestment of such proceeds
in whatever form the same may be, shall irrevocably be held with respect
to that Series for all purposes, subject only to the rights of creditors
with respect to that Series, and shall be so recorded upon the books of
account of the Trust. Such consideration, assets, income, earnings,
profits and proceeds thereof, from whatever source derived, including,
without limitation, any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds, in whatever form the same may be, are
herein referred to as "assets held with respect to" that Series. In the
event that there are any assets, income, earnings, profits and proceeds
thereof, funds or payments which are not readily identifiable as assets
held with respect to any particular Series (collectively "General
Assets"), the Board of Trustees shall allocate such General Assets to,
between or among any one or more of the Series in such manner and on such
basis as the Board of Trustees, in its sole discretion, deems fair and
equitable, and any General Asset so allocated to a particular Series shall
be held with respect to that Series. Each such allocation by the Board of
Trustees shall be conclusive and binding upon the Shareholders of all
Series for all purposes.
(b) Liabilities Held with Respect to a Particular Series or
Class. The assets of the Trust held with respect to each particular
Series shall be charged against the liabilities of the Trust held with
respect to that Series and all expenses, costs, charges and reserves
attributable to that Series, and any liabilities, expenses, costs, charges
and reserves of the Trust which are not readily identifiable as being held
with respect to any particular Series (collectively "General Liabilities")
shall be allocated and charged by the Board of Trustees to and among any
one or more of the Series in such manner and on such basis as the Board of
Trustees, in its sole discretion, deems fair and equitable. The
liabilities, expenses, costs, charges, and reserves so charged to a Series
are herein referred to as "liabilities held with respect to" that Series.
Each allocation of liabilities, expenses, costs, charges and reserves by
the Board of Trustees shall be conclusive and binding upon the
Shareholders of all Series for all purposes. All Persons who have
extended credit which has been allocated to a particular Series, or who
have a claim or contract which has been allocated to any particular
Series, shall look, and shall be required by contract to look exclusively,
to the assets of that particular Series for payment of such credit, claim,
or contract. In the absence of an express contractual agreement so
limiting the claims of such creditors, claimants and contract providers,
each creditor, claimant and contract provider will be deemed nevertheless
to have impliedly agreed to such limitation.
Subject to the right of the Board of Trustees in its discretion to
allocate General Liabilities as provided herein, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing
with respect to a particular Series, whether such Series is now authorized
and existing pursuant to this Declaration of Trust or is hereafter
authorized and existing pursuant to this Declaration of Trust, shall be
enforceable against the assets held with respect to that Series only, and
not against the assets of any other Series or the Trust generally and 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 held with respect
to such Series. Notice of this limitation on liabilities between and
among Series 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 DSTA,
and upon the giving of such notice in the Certificate of Trust, the
statutory provisions of Section 3804 of the DSTA relating to limitations
on liabilities between and among Series (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.
Liabilities, debts, obligations, costs, charges, reserves and
expenses related to the distribution of, and other identified expenses
that should properly be allocated to, the Shares of a particular class may
be charged to and borne solely by such class. The bearing of expenses
solely by a particular class of Shares may be appropriately reflected (in
a manner determined by the Board of Trustees) and may affect the net asset
value attributable to, and the dividend, redemption and liquidation rights
of, such class. Each allocation of liabilities, debts, obligations,
costs, charges, reserves and expenses by or under the direction of the
Board of Trustees shall be conclusive and binding upon the Shareholders of
all classes for all purposes. All Persons who have extended credit that
has been allocated to a particular class, or who have a claim or contract
that has been allocated to any particular class, shall look, and may be
required by contract to look exclusively, to that particular class for
payment of such credit, claim, or contract.
(c) Dividends, Distributions, Redemptions and Repurchases.
Notwithstanding any other provisions of this Declaration of Trust,
including, without limitation, Article VI, no dividend or distribution
including, without limitation, any distribution paid upon dissolution of
the Trust or of any Series or class with respect to, nor any redemption or
repurchase of, the Shares of any Series or class shall be effected by the
Trust other than from the assets held with respect to such Series or
class, nor, except as specifically provided in Section 4 of Article VII or
Section 5 of Article IV, shall any Shareholder of any particular Series or
class otherwise have any right or claim against the assets held with
respect to any other Series or class or the Trust generally except to the
extent that such Shareholder has such a right or claim hereunder as a
Shareholder of such other Series or class. The Board of Trustees shall
have full discretion, to the extent not inconsistent with the 1940 Act, to
determine which items shall be treated as income and which items as
capital; and each such determination and allocation shall be conclusive
and binding upon the Shareholders.
(d) Voting. All Shares of the Trust entitled to vote on a matter
shall vote on the matter in the aggregate without differentiation between
the separate Series or classes. Notwithstanding the foregoing, (i) if any
matter affects only the interests of some but not all Series or classes,
then only the Shareholders of such affected Series or classes shall be
entitled to vote on the matter; and (ii) with respect to matters which
would otherwise be voted on by two or more Series or classes as a single
class, the Trustees may, in their sole discretion, submit such matters to
the Shareholders of any or all such Series or classes, separately.
(e) Equality. All Shares of each particular Series shall
represent an equal proportionate undivided beneficial interest in the
assets held with respect to that Series (subject to the liabilities held
with respect to that Series and such rights and preferences as may have
been established and designated with respect to classes of Shares within
such Series), and each Share of any particular Series shall be equal to
each other Share of that Series (subject to the rights and preferences
with respect to separate classes of such Series).
(f) Fractions. Any fractional Share of a Series shall carry
proportionately all the rights and obligations of a whole Share of that
Series, including rights with respect to voting, receipt of dividends and
distributions, redemption of Shares and dissolution of the Trust or that
Series.
(g) Exchange Privilege. The Board of Trustees shall have the
authority to provide that the holders of Shares of any Series or class
shall have the right to exchange said Shares for Shares of one or more
other Series or classes in accordance with such requirements and
procedures as may be established by the Board of Trustees, and in
accordance with the 1940 Act and the rules and regulations thereunder.
(h) Combination of Series or Class. The Board of Trustees shall
have the authority, without the approval of the Shareholders of any Series
or class, unless otherwise required by applicable law, to combine the
assets and liabilities held with respect to any two or more Series or two
or more classes into assets and liabilities held with respect to a single
Series or class, respectively.
(i) Elimination of Series or Class. At any time that there are no
Shares outstanding of any particular Series or class previously
established and designated, the Board of Trustees may by resolution of a
majority of the then Board of Trustees abolish that Series or class and
rescind the establishment and designation thereof.
ARTICLE IV.
The Board of Trustees
Section 1. Number, Election and Tenure. The number of Trustees
constituting the Board of Trustees may be fixed from time to time by a
written instrument signed, or by resolution approved at a duly constituted
meeting, by a majority of the Board of Trustees, provided, however, that
the number of Trustees shall in no event be less than one (1) nor more
than twenty (20). The Board of Trustees, by action of a majority of the
then Trustees at a duly constituted meeting, may fill vacancies in the
Board of Trustees. The Board of Trustees, by action of a two-thirds of the
then Trustees at a duly constituted meeting, may remove any trustee with
or without cause. The Shareholders may elect Trustees, including filling
any vacancies in the Board of Trustees, at any meeting of Shareholders
called by the Board of Trustees for that purpose. A meeting of
Shareholders for the purpose of electing one or more Trustees may be
called by the Board of Trustees or, to the extent provided by the 1940 Act
and the rules and regulations thereunder, by the Shareholders.
Shareholders shall have the power to remove a Trustee only to the extent
provided by the 1940 Act and the rules and regulations thereunder.
Each Trustee shall serve during the continued lifetime of the Trust
until he or she dies, resigns, is declared bankrupt or incompetent by a
court of appropriate jurisdiction, or is removed, or, if sooner than any
of such events, until the next meeting of Shareholders called for the
purpose of electing Trustees and until the election and qualification of
his or her successor. Any Trustee may resign at any time by written
instrument signed by him or her and delivered to any officer of the Trust
or to a meeting of the Board of Trustees. Such resignation shall be
effective upon receipt unless specified to be effective at some later
time. Except to the extent expressly provided in a written agreement with
the Trust, no Trustee resigning and no Trustee removed shall have any
right to any compensation for any period following any such event or any
right to damages on account of such events or any actions taken in
connection therewith following his or her resignation or removal.
Section 2. Effect of Death, Resignation, Removal, etc. of a
Trustee. The death, declination, resignation, retirement, removal,
declaration as bankrupt or incapacity of one or more Trustees, but not all
of them, shall not operate to dissolve the Trust or any Series or to
revoke any existing agency created pursuant to the terms of this
Declaration of Trust. Whenever a vacancy in the Board of Trustees shall
occur, until such vacancy is filled as provided in the By-Laws, the
Trustee(s) in office, regardless of the number, shall have all the powers
granted to the Board of Trustees and shall discharge all the duties
imposed upon the Board of Trustees by this Declaration of Trust.
Section 3. Powers. Subject to the provisions of this Declaration
of Trust, the business of the Trust shall be managed by the Board of
Trustees, and such Board of Trustees shall have all powers necessary or
convenient to carry out that responsibility, including, without
limitation, the power to engage in securities or other transactions of all
kinds on behalf of the Trust. The Board of Trustees shall have full power
and authority to do any and all acts and to make and execute any and all
contracts and instruments that it may consider necessary or appropriate in
connection with the administration of the Trust. The Trustees shall not
be bound or limited by present or future laws or customs with regard to
investment by trustees or fiduciaries, but, subject to the other
provisions of the Declaration of Trust and By-Laws, shall have full
authority and absolute power and control over the assets of the Trust and
the business of the Trust to the same extent as if the Trustees were the
sole owners of the assets of the Trust and the business in their own
right, including such authority, power and control to do all acts and
things as they, in their sole discretion, shall deem proper to accomplish
the purposes of this Trust. Without limiting the foregoing, the Trustees
may: (1) adopt, amend and repeal By-Laws not inconsistent with this
Declaration of Trust providing for the regulation and management of the
affairs of the Trust; (2) fill vacancies in or remove from their number in
accordance with this Declaration of Trust or the By-Laws, and may elect
and remove such officers and appoint and terminate such agents as they
consider appropriate; (3) to delegate such authority as they consider
desirable to a committee or committees comprised of Trustees or any
officers or agents of the Trust including, without limitation, an
Executive Committee; (4) employ one or more custodians of the Trust
Property and may authorize such custodians to employ subcustodians and to
deposit all or any part of such Trust Property in a system or systems for
the central handling of securities or with a Federal Reserve Bank; (5)
retain a transfer agent, dividend disbursing agent, a shareholder
servicing agent or administrative services agent, fund accountant, or all
of them; (6) provide for the issuance and distribution of Shares by the
Trust directly or through one or more Principal Underwriters or otherwise;
(7) retain one or more Investment Adviser(s); (8) redeem, repurchase and
transfer Shares pursuant to applicable law; (9) set record dates for the
determination of Shareholders with respect to various matters, in the
manner provided in Article V, Section 5 of this Declaration of Trust; (10)
declare and pay dividends and distributions to Shareholders from the Trust
Property; (11) establish from time to time, in accordance with the
provisions of Article III, Section 6 hereof, any Series or class of
Shares, each such Series to operate as a separate and distinct investment
medium and with separately defined investment objectives and policies and
distinct investment purposes; and (12) in general delegate such authority
as they consider desirable to any officer of the Trust, to any committee
of the Board of Trustees and to any agent or employee of the Trust or to
any such custodian, transfer, dividend disbursing or shareholder servicing
agent, fund accountant, legal counsel, independent auditors for the Trust,
Principal Underwriter or Investment Adviser. The powers of the Board of
Trustees set forth in the Section 3 are without prejudice to any other
powers of the Board of Trustees set forth in this Declaration of Trust and
By-Laws. Any determination as to what is in the best interests of the
Trust made by the Board of Trustees in good faith shall be conclusive.
In construing the provisions of this Declaration of Trust, the
presumption shall be in favor of a grant of power to the Trustees. Unless
otherwise specified herein or required by law, any action by the Board of
Trustees shall be deemed effective if approved or taken by a majority of
the Trustees then in office.
The Trustees shall devote to the affairs of the Trust such time as
may be necessary for the proper performance of their duties hereunder, but
neither the Trustees nor the officers, directors, shareholders or partners
of the Trustees, shall be expected to devote their full time to the
performance of such duties. The Trustees, or any Affiliate shareholder,
officer, director, partner or employee thereof, or any Person owning a
legal or beneficial interest therein, may engage in or possess an interest
in any other business or venture of any nature and description,
independently or with or for the account of others.
Section 4. Payment of Fees and Expenses by the Trust. The Board of
Trustees is authorized to pay or cause to be paid out of the principal or
income of the Trust or any particular Series or class, or partly out of
the principal and partly out of the income of the Trust or any particular
Series or class, and to charge or allocate the same to, between or among
such one or more of the Series or classes that may be established or
designated pursuant to Article III, Section 6, as it deems fair, all
expenses, fees, charges, taxes and liabilities incurred by or arising in
connection with the maintenance or operation of the Trust or a particular
Series or class, or in connection with the management thereof, including,
but not limited to, the Trustees' compensation and such expenses, fees,
charges, taxes and liabilities for the services of the Trust's officers,
employees, Investment Adviser, Principal Underwriter, fund accountant,
auditors, counsel, custodian, sub-custodian (if any), transfer agent,
dividend disbursing agent, shareholder servicing agent, and such other
agents or independent contractors and such other expenses, fees, charges,
taxes and liabilities as the Board of Trustees may deem necessary or
proper to incur.
Section 5. Payment of Fees and Expenses by Shareholders. The Board
of Trustees shall have the power, as frequently as it may determine, to
cause each Shareholder of the Trust, or each Shareholder of any particular
Series, to pay directly, in advance or arrears, for charges of the Trust's
custodian or transfer, dividend disbursing, fund accounting, shareholder
servicing or similar agent, an amount fixed from time to time by the Board
of Trustees, 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 6. Ownership of Trust Property. Legal title to all of the
Trust Property shall at all times be considered to be vested in the Trust,
except that the Board of Trustees shall have the power to cause legal
title to any Trust Property to be held by or in the name of any Person as
nominee, on such terms as the Board of Trustees may determine, in
accordance with applicable law.
Section 7. Service Contracts
(a) Subject to such requirements and restrictions as may be set
forth in the By-Laws and/or the 1940 Act, the Board of Trustees may, at
any time and from time to time, contract for exclusive or nonexclusive
advisory, management and/or administrative services for the Trust or for
any Series with any corporation, trust, association or other organization,
including any Affiliate; and any such contract may contain such other
terms as the Board of Trustees may determine, including without
limitation, authority for the Investment Adviser or administrator to
determine from time to time without prior consultation with the Board of
Trustees what securities and other instruments or property shall be
purchased or otherwise acquired, owned, held, invested or reinvested in,
sold, exchanged, transferred, mortgaged, pledged, assigned, negotiated, or
otherwise dealt with or disposed of, and what portion, if any, of the
Trust Property shall be held uninvested and to make changes in the Trust's
or a particular Series' investments, or such other activities as may
specifically be delegated to such party.
(b) The Board of Trustees may also, at any time and from time to
time, contract with any corporation, trust, association or other
organization, including any Affiliate, appointing it or them as the
exclusive or nonexclusive distributor or Principal Underwriter for the
Shares of the Trust or one or more of the Series or classes thereof or for
other securities to be issued by the Trust, or appointing it or them to
act as the custodian, transfer agent, dividend disbursing agent, fund
accountant, and/or shareholder servicing agent for the Trust or one or
more of the Series or classes thereof.
(c) The Board of Trustees is further empowered, at any time and
from time to time, to contract with any Persons to provide such other
services to the Trust or one or more of its Series, as the Board of
Trustees determines to be in the best interests of the Trust or one or
more of its Series.
(d) The fact that:
(i) any of the Shareholders, Trustees, employees or officers
of the Trust is a shareholder, director, officer, partner,
trustee, employee, manager, Adviser, Principal Underwriter,
distributor, or Affiliate or agent of or for any corporation,
trust, association, or other organization, or for any parent
or Affiliate of any organization with which an Adviser's,
management or administration contract, or Principal
Underwriter's or distributor's contract, or custodian,
transfer, dividend disbursing, fund accounting, shareholder
servicing or other type of service contract may have been or
may hereafter be made, or that any such organization, or any
parent or Affiliate thereof, is a Shareholder or has an
interest in the Trust, or that
(ii) any corporation, trust, association or other organization
with which an Adviser's, management or administration contract
or Principal Underwriter's or distributor's contract, or
custodian, transfer, dividend disbursing, fund accounting,
shareholder servicing or other type of service contract may
have been or may hereafter be made also has an Adviser's,
management or administration contract, or Principal
Underwriter's or distributor's contract, or custodian,
transfer, dividend disbursing, shareholder servicing or other
service contract with one or more other corporations, trusts,
associations, or other organizations, or has other business or
interests,
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee, employee or officer of the Trust from voting upon or
executing the same, or create any liability or accountability to the Trust
or its Shareholders, provided that the establishment of and performance
under each such contract is permissible under the provisions of the 1940
Act.
Section 8. Compensation. Except as set forth in the last sentence
of this Section 8, the Board of Trustees may, from time to time, fix a
reasonable amount of compensation to be paid by the Trust to the Trustees
and officers of the Trust. Nothing herein shall in any way prevent the
employment of any Trustee for advisory, management, legal, accounting,
investment banking or other services and payment for the same by the Trust.
ARTICLE V.
Shareholders' Voting Powers and Meetings
Section 1. Voting Powers. Subject to the provisions of Article
III, Section 6(d), the Shareholders shall have power to vote only (i) for
the election of Trustees, including the filling of any vacancies in the
Board of Trustees, as provided in Article IV, Section 1; (ii) with respect
to such additional matters relating to the Trust as may be required by
this Declaration of Trust, the By-Laws, the 1940 Act or any registration
statement of the Trust filed with the Commission; and (iii) on such other
matters as the Board of Trustees may consider necessary or desirable. The
Shareholder of record (as of the record date established pursuant to
Section 5 of this Article V) of each Share shall be entitled to one vote
for each full Share, and a fractional vote for each fractional Share.
Shareholders shall not be entitled to cumulative voting in the election of
Trustees or on any other matter. Shares may be voted in person or by
proxy.
Section 2. Meetings. Meetings of the Shareholders may be called by
the Board of Trustees for the purpose of electing Trustees as provided in
Article IV, Section 1 and for such other purposes as may be prescribed by
law, by this Declaration of Trust or by the By-Laws. Meetings of the
Shareholders may also be called by the Board of Trustees from time to time
for the purpose of taking action upon any other matter deemed by the Board
of Trustees to be necessary or desirable.
Section 3. Quorum and Required Vote. Except when a larger quorum
is required by applicable law, by the By-Laws or by this Declaration of
Trust, thirty-three and one-third percent (33-1/3%) of the Shares present
in person or represented by proxy and entitled to vote at a Shareholders'
meeting shall constitute a quorum at such meeting. When a separate vote
by one or more Series or classes is required, thirty-three and one-third
percent (33-1/3%) of the Shares of each such Series or class present in
person or represented by proxy and entitled to vote shall constitute a
quorum at a Shareholders' meeting of such Series or class. Subject to the
provisions of Article III, Section 6(d), Article VIII, Section 3 and any
other provision of this Declaration of Trust, the By-Laws or applicable
law which requires a different vote: (1) in all matters other than the
election of Trustees, the affirmative vote of the majority of votes cast
at a Shareholders' meeting at which a quorum is present shall be the act
of the Shareholders; (2) Trustees shall be elected by a plurality of the
votes cast at a Shareholders' meeting at which a quorum is present.
Section 4. Shareholder Action by Written Consent without a Meeting.
Any action which may be taken at any meeting of Shareholders may be taken
without a meeting and without prior notice if a consent in writing setting
forth the action so taken is signed by the holders of Shares having not
less than the minimum number of votes that would be necessary to authorize
or take that action at a meeting at which all Shares entitled to vote on
that action were present and voted. All such consents shall be filed with
the secretary of the Trust and shall be maintained in the Trust's records.
Any Shareholder giving a written consent or the Shareholder's proxy
holders or a transferee of the Shares or a personal representative of the
Shareholder or its respective proxy-holder may revoke the consent by a
writing received by the secretary of the Trust before written consents of
the number of Shares required to authorize the proposed action have been
filed with the secretary.
If the consents of all Shareholders entitled to vote have not been
solicited in writing and if the unanimous written consent of all such
Shareholders shall not have been received, the secretary shall give prompt
notice of the action taken without a meeting to such Shareholders. This
notice shall be given in the manner specified in the By-Laws.
Section 5. Record Dates. For purposes of determining the
Shareholders entitled to notice of any meeting or to vote or entitled to
give consent to action without a meeting, the Board of Trustees may fix in
advance a record date which shall not be more than one hundred eighty
(180) days nor less than seven (7) days before the date of any such
meeting.
If the Board of Trustees does not so fix a record date:
(a) The record date for determining Shareholders entitled to
notice of or to vote at a meeting of Shareholders shall be at the close of
business on the business day before the notice is given or, if notice is
waived, at the close of business on the business day which is five (5)
business days before the day on which the meeting is held.
(b) The record date for determining Shareholders entitled to give
consent to action in writing without a meeting, (i) when no prior action
by the Board of Trustees has been taken, shall be the day on which the
first written consent is given, or (ii) when prior action of the Board of
Trustees has been taken, shall be at the close of business on the day on
which the Board of Trustees adopts the resolution taking such prior action.
For the purpose of determining the Shareholders of any Series or
class who are entitled to receive payment of any dividend or of any other
distribution, the Board of Trustees may from time to time fix a date,
which shall be before the date for the payment of such dividend or such
other distribution, as the record date for determining the Shareholders of
such Series or class having the right to receive such dividend or
distribution. Nothing in this Section shall be construed as precluding
the Board of Trustees from setting different record dates for different
Series or classes.
Section 6. Additional Provisions. The By-Laws may include further
provisions for Shareholders' votes, meetings and related matters.
ARTICLE VI.
Net Asset Value, Distributions and Redemptions
Section 1. Determination of Net Asset Value, Net Income and
Distributions. Subject to Article III, Section 6 hereof, the Board of
Trustees shall have the power to fix an initial offering price for the
Shares of any Series or class thereof which shall result in such Series or
class being valued at not less than the net asset value thereof, at which
price the Shares of such Series or class shall be offered initially for
sale, and to determine from time to time thereafter the offering price
which shall result in such Series or class being valued at not less than
the net asset value thereof from sales of the Shares of such Series or
class; provided, however, that no Shares of a Series or class thereof
shall be issued or sold for consideration which shall result in such
Series or class being valued at less than the net asset value of the
Shares of such Series or class next determined after the receipt of the
order (or at such other times set by the Board of Trustees), except in the
case of Shares of such Series or class issued in payment of a dividend
properly declared and payable.
Subject to Article III, Section 6 hereof, the Board of Trustees, in
its absolute discretion, may prescribe and shall set forth in the By-laws
or in a duly adopted vote of the Board of Trustees such bases and time for
determining the per Share or net asset value of the Shares of any Series
or net income attributable to the Shares of any Series, or the declaration
and payment of dividends and distributions on the Shares of any Series, as
they may deem necessary or desirable.
Section 2. Redemptions at the Option of a Shareholder. Unless
otherwise provided in the prospectus of the Trust relating to the Shares,
as such prospectus may be amended from time to time ("Prospectus"):
(a) The Trust shall purchase such Shares as are offered by any
Shareholder for redemption, upon the presentation of a proper instrument
of transfer together with a request directed to the Trust or a Person
designated by the Trust that the Trust purchase such Shares or in
accordance with such other procedures for redemption as the Board of
Trustees may from time to time authorize; and the Trust will pay therefore
the net asset value thereof, in accordance with the By-Laws and applicable
law. The payment of redemption proceeds may be reduced by any applicable
sales charges or fees described in the Prospectus. Payment for said
Shares shall be made by the Trust to the Shareholder within seven days
after the date on which the request is received in proper form. The
obligation set forth in this Section 2 may be suspended or postponed in
accordance with Section 22(e) of the 1940 Act and the rules and
regulations thereunder or as otherwise permitted by the Commission. If
certificates have been issued to a Shareholder, any such request by such
Shareholder must be accompanied by surrender of any outstanding
certificate or certificates for such Shares in form for transfer, together
with such proof of the authenticity of signatures as may reasonably be
required on such Shares and accompanied by proper stock transfer stamps,
if applicable.
(b) Payments for Shares so redeemed by the Trust shall be made in
cash, except payment for such Shares may, at the option of the Board of
Trustees, or such officer or officers as it may duly authorize in its
complete discretion, be made in kind or partially in cash and partially in
kind. In case of any payment in kind, the Board of Trustees, or its
delegate, shall have absolute discretion as to what security or securities
of the Trust shall be distributed in kind and the amount of the same; and
the securities shall be valued for purposes of distribution at the value
at which they were appraised in computing the then current net asset value
of the Shares, provided that any Shareholder who cannot legally acquire
securities so distributed in kind by reason of the prohibitions of the
1940 Act or the provisions of the Employee Retirement Income Security Act
("ERISA") shall receive cash. Shareholders shall bear the expenses of
in-kind transactions, including, but not limited to, transfer agency fees,
custodian fees and costs of disposition of such securities.
(c) If payment for Shares shall be made other than exclusively in
cash, any securities to be delivered as part of such payment shall be
delivered as promptly as any necessary transfers of such securities on the
books of the several corporations whose securities are to be delivered
practicably can be made, which may not necessarily occur within such seven
day period. In no case shall the Trust be liable for any delay of any
corporation or other Person in transferring securities selected for
delivery as all or part of any payment in kind.
(d) The right of Shareholders to receive dividends or other
distributions on Shares may be set forth in a Plan adopted by the Board of
Trustees and amended from time to time pursuant to Rule 18f-3 of the 1940
Act. The right of any Shareholder of the Trust to receive dividends or
other distributions on Shares redeemed and all other rights of such
Shareholder with respect to the Shares so redeemed by the Trust, except
the right of such Shareholder to receive payment for such Shares, shall
cease at the time as of which the purchase price of such Shares shall have
been fixed, as provided above.
Section 3. Redemptions at the Option of the Trust. The Board of
Trustees may, from time to time, without the vote or consent of the
Shareholders, and subject to the 1940 Act, redeem Shares or authorize the
closing of any Shareholder account, subject to such conditions as may be
established by the Board of Trustees.
ARTICLE VII.
Limitation of Liability; Indemnification
Section 1. Trustees, Shareholders, etc. Not Personally Liable. The
Trustees, officers, employees and agents of the Trust, in incurring any
debts, liabilities or obligations, or in limiting or omitting any other
actions for or in connection with the Trust, are or shall be deemed to be
acting as Trustees, officers, employees or agents of the Trust and not in
their own capacities. No Shareholder shall be subject to any personal
liability whatsoever in tort, contract or otherwise to any other Person or
Persons in connection with the assets or the affairs of the Trust or of
any Series or class, and subject to Sections 3 and 5 of this Article VII,
no Trustee, officer, employee or agent of the Trust shall be subject to
any personal liability whatsoever in tort, contract, or otherwise, to any
other Person or Persons in connection with the assets or affairs of the
Trust or of any Series or class, save only that arising from his or her
own willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his or her office or the
discharge of his or her duties. The Trust (or if the matter relates only
to a particular Series or class, that Series or class) shall be solely
liable for any and all debts, claims, demands, judgments, decrees,
liabilities or obligations of any and every kind, against or with respect
to the Trust or such Series or class in tort, contract or otherwise in
connection with the assets or the affairs of the Trust or such Series or
class, and all Persons dealing with the Trust or any Series or class shall
be deemed to have agreed that resort shall be had solely to the Trust
Property of the Trust (or if the matter relates only to a particular
Series or class, that of such Series or class), for the payment or
performance thereof.
The Trustees may provide that every note, bond, contract, instrument,
certificate or undertaking made or issued by the Trustees or by any
officer or officers shall give notice that a Certificate of Trust in
respect of the Trust is on file with the Secretary of State of the State
of Delaware and may recite to the effect that the same was executed or
made by or on behalf of the Trust or by them as Trustee or Trustees or as
officer or officers, and not individually, and that the obligations of any
instrument made or issued by the Trustees or by any officer or officers of
the Trust are not binding upon any of them or the Shareholders
individually but are binding only upon the assets and property of the
Trust, or the particular Series in question, as the case may be. The
omission of any statement to such effect from such instrument shall not
operate to bind any Trustee or Trustees or officer or officers or
Shareholder or Shareholders individually, or to subject the assets of any
Series or class to the obligations of any other Series or class.
Section 2. Officers and Trustees' Good Faith Action, Expert Advice,
No Bond or Surety. The exercise by the Trustees of their powers and
discretion hereunder shall be binding upon everyone interested. An
officer or Trustee shall be liable to the Trust and to any Shareholder
solely for such officer's or Trustee's own willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the
conduct of the office of such officer or Trustee, and for nothing else,
and shall not be liable for errors of judgment or mistakes of fact or
law. Subject to the foregoing, the Trustees shall not be responsible or
liable in any event for any neglect or wrongdoing of any officer, agent,
employee, consultant, investment adviser, administrator, distributor,
underwriter, custodian or transfer agent, dividend disbursing agent,
shareholder servicing agent or accounting agent of the trust, nor shall
any Trustee be responsible for the act or omission of any other Trustee.
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 an officer appointed by them, any
independent public accountant or auditor, and (with respect to the subject
matter of the relevant contract involved) any officer, partner or
responsible employee of a contracting party employed by the Trust. The
officers and Trustees may obtain the advice of counsel or other experts
with respect to the meaning and operation of this Declaration of Trust and
their duties as officers or Trustees. No such officer or Trustee shall be
liable for any act or omission in accordance with such advice and no
inference concerning liability shall arise from a failure to follow such
advice. The officers and Trustees shall not be required to give any bond
as such, nor any surety if a bond is required.
Section 3. Indemnification of Shareholders. If any Shareholder (or
former Shareholder) of the Trust shall be charged or held to be personally
liable for any obligation or liability of the Trust solely by reason of
being or having been a Shareholder and not because of such Shareholder's
acts or omissions or for some other reason, the Trust (upon proper and
timely request by the Shareholder) may assume the defense against such
charge and satisfy any judgment thereon or may reimburse the Shareholder
or former Shareholder for expenses, and the Shareholder or former
Shareholder (or the heirs, executors, administrators or other legal
representatives thereof, or in the case of a corporation or other entity,
its corporate or other general successor) shall be entitled (but solely
out of the assets of the Series of which such Shareholder or former
Shareholder is or was the holder of Shares) to be held harmless from and
indemnified against all loss and expense arising from such liability.
Section 4. Indemnification of Trustees, Officers, etc. Subject to
the limitations, if applicable, hereinafter set forth in this Section 4,
the Trust shall indemnify (from the assets of one or more Series to which
the conduct in question relates) each of its Trustees, officers, employees
and agents (including Persons who serve at the Trust's request as
directors, officers or trustees of another organization in which the Trust
has any interest as a shareholder, creditor or otherwise (hereinafter,
together with such Person's heirs, executors, administrators or personal
representatives, referred to as a "Covered Person")) against all
liabilities, including but not limited to amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and expenses,
including reasonable accountants' and counsel fees, incurred by any
Covered Person in connection with the defense or disposition of any
action, suit or other proceeding, whether civil or criminal, before any
court or administrative or legislative body, in which such Covered Person
may be or may have been involved as a party or otherwise or with which
such Covered Person may be or may have been threatened, while in office or
thereafter, by reason of being or having been such a Trustee or officer,
director or trustee, except with respect to any matter as to which it has
been determined that such Covered Person (i) did not act in good faith in
the reasonable belief that such Covered Person's action was in or not
opposed to the best interests of the Trust; or (ii) had acted with willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of such Covered Person's office; and
(iii) for a criminal proceeding, had reasonable cause to believe that his
or her conduct was unlawful (the conduct described in (i), (ii) and (iii)
being referred to hereafter as "Disabling Conduct"). A determination that
the Covered Person is entitled to indemnification may be made by (i) a
final decision on the merits by a court or other body before whom the
proceeding was brought that the Covered Person to be indemnified was not
liable by reason of Disabling Conduct, (ii) dismissal of a court action or
an administrative proceeding against a Covered Person for insufficiency of
evidence of Disabling Conduct, or (iii) a reasonable determination, based
upon a review of the facts, that the indemnitee was not liable by reason
of Disabling Conduct by (a) a vote of a majority of a quorum of the
Trustees who are neither Interested Persons of the Trust nor parties to
the proceeding (the "Disinterested Trustees"), or (b) an independent legal
counsel in a written opinion. Expenses, including accountants' and
counsel fees so incurred by any such Covered Person (but excluding amounts
paid in satisfaction of judgments, in compromise or as fines or
penalties), may be paid from time to time by one or more Series to which
the conduct in question related in advance of the final disposition of any
such action, suit or proceeding; provided that the Covered Person shall
have undertaken to repay the amounts so paid to such Series if it is
ultimately determined that indemnification of such expenses is not
authorized under this Article VII and (i) the Covered Person shall have
provided security for such undertaking, (ii) the Trust shall be insured
against losses arising by reason of any lawful advances, or (iii) a
majority of a quorum of the Disinterested Trustees, or an independent
legal counsel in a written opinion, shall have determined, based on a
review of readily available facts (as opposed to a full trial type
inquiry), that there is reason to believe that the Covered Person
ultimately will be found entitled to indemnification.
Section 5. Compromise Payment. As to any matter disposed of by a
compromise payment by any such Covered Person referred to in Section 4 of
this Article VII, pursuant to a consent decree or otherwise, no such
indemnification either for said payment or for any other expenses shall be
provided unless such indemnification shall be approved (i) by a majority
of a quorum of the Disinterested Trustees or (ii) by an independent legal
counsel in a written opinion. Approval by the Trustees pursuant to clause
(i) or by independent legal counsel pursuant to clause (ii) shall not
prevent the recovery from any Covered Person of any amount paid to such
Covered Person in accordance with either of such clauses as
indemnification if such Covered Person is subsequently adjudicated by a
court of competent jurisdiction not to have acted in good faith in the
reasonable belief that such Covered Person's action was in or not opposed
to the best interests of the Trust or to have been 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 Covered Person's office.
Section 6. Indemnification Not Exclusive, etc. The right of
indemnification provided by this Article VII shall not be exclusive of or
affect any other rights to which any such Covered Person or shareholder
may be entitled. As used in this Article VII, a "disinterested" Person is
one against whom none of the actions, suits or other proceedings in
question, and no other action, suit or other proceeding on the same or
similar grounds is then or has been pending or threatened. Nothing
contained in this Article VII shall affect any rights to indemnification
to which personnel of the Trust, other than Trustees and officers, and
other Persons may be entitled by contract or otherwise under law, nor the
power of the Trust to purchase and maintain liability insurance on behalf
of any such Person.
Section 7. Insurance. To the fullest extent permitted by
applicable law, the officers and Trustees shall be entitled and have the
authority to purchase with Trust Property, insurance for liability and for
all expenses reasonably incurred or paid or expected to be paid by a
Trustee or officer in connection with any claim, action, suit or
proceeding in which such Person becomes involved by virtue of such
Person's capacity or former capacity with the Trust, whether or not the
Trust would have the power to indemnify such Person against such liability
under the provisions of this Article.
Section 8. Liability of Third Persons Dealing with Trustees. No
person dealing with the Trustees shall be bound to make any inquiry
concerning the validity of any actions made or to be made by the Trustees.
Section 9. Derivative Actions. Subject to the requirements set
forth in Section Section 3816 of the DSTA, a Shareholder or Shareholders
may bring a derivative action on behalf of the Trust only if the
Shareholder or Shareholders first make a pre-suit demand upon the Board of
Trustees to bring the subject action unless an effort to cause the Board
of Trustees to bring such action is excused. A demand on the Board of
Trustees shall only be excused if a majority of the Board of Trustees, or
a majority of any committee established to consider the merits of such
action, has a material personal financial interest in the action at
issue. A Trustee shall not be deemed to have a material personal
financial interest in an action or otherwise be disqualified from ruling
on a Shareholder demand by virtue of the fact that such Trustee receives
remuneration from his service on the Board of Trustees of the Trust or on
the boards of one or more investment companies with the same or an
affiliated investment advisor or underwriter.
ARTICLE VIII.
Miscellaneous
Section 1. Dissolution and Liquidation of Trust, Series, or Class.
Unless dissolved as provided herein, the Trust shall have perpetual
existence. The Trust may be dissolved at any time by vote of a majority
of the Shares of the Trust entitled to vote or by the Board of Trustees by
written notice to the Shareholders. Any Series or class may be dissolved
or liquidated at any time by vote of a majority of the Shares of that
Series or class or by the Board of Trustees by written notice to the
Shareholders of that Series or class.
Upon dissolution of the Trust (or a particular Series or class, as
the case may be), the Trustees shall (in accordance with Section 3808 of
the DSTA) pay or make reasonable provision to pay all claims and
obligations of each Series or class (or the particular Series or class, as
the case may be), including all contingent, conditional or unmatured
claims and obligations known to the Trust, and all claims and obligations
which are known to the Trust but for which the identity of the claimant is
unknown. If there are sufficient assets held with respect to each Series
or class of the Trust (or the particular Series or class, as the case may
be), such claims and obligations shall be paid in full and any such
provisions for payment shall be made in full. If there are insufficient
assets held with respect to each Series or class of the Trust (or the
particular Series or class, as the case may be), such claims and
obligations shall be paid or provided for according to their priority and,
among claims and obligations of equal priority, ratably to the extent of
assets available therefor. Any remaining assets (including without
limitation, cash, securities or any combination thereof) held with respect
to each Series or class of the Trust (or the particular Series or class,
as the case may be) shall be distributed to the Shareholders of such
Series or class, ratably according to the number of Shares of such Series
or class held by the several Shareholders on the record date for such
dissolution distribution. Upon the winding up of the Trust in accordance
with Section 3808 of the DSTA and its termination, any one (1) Trustee
shall execute, and cause to be filed, a certificate of cancellation, with
the office of the Secretary of State of the State of Delaware in
accordance with the provisions of Section 3810 of the DSTA
Section 2. Merger and Consolidation; Conversion.
(a) Merger and Consolidation. Pursuant to an agreement of merger
or consolidation, the Trust, or any one or more Series or classes, may, by
act of a majority of the Board of Trustees, merge or consolidate with or
into one or more statutory trusts or other business entities formed or
organized or existing under the laws of the State of Delaware or any other
state or the United States or any foreign country or other foreign
jurisdiction. Any such merger or consolidation shall not require the vote
of the Shareholders affected thereby, unless such vote is required by the
1940 Act, or unless such merger or consolidation would result in an
amendment of this Declaration of Trust which would otherwise require the
approval of such Shareholders. In accordance with Section 3815(f) of the
DSTA, an agreement of merger or consolidation may effect any amendment to
this Declaration of Trust or the By-Laws or effect the adoption of a new
declaration of trust or by-laws of the Trust if the Trust is the surviving
or resulting statutory trust. Upon completion of the merger or
consolidation, any one (1) Trustee shall execute and cause to be filed a
certificate of merger or consolidation in accordance with Section 3815 of
the DSTA.
(b) Conversion. A majority of the Board of Trustees may, without
the vote or consent of the Shareholders, cause (i) the Trust to convert to
an "other business entity" as defined in Section 3801 of the DSTA
organized, formed or created under the laws of the State of Delaware as
permitted pursuant to Section 3821 of the DSTA; (ii) the Shares of the
Trust or any Series or class to be converted into beneficial interests in
another statutory trust (or series or class thereof) created pursuant to
this Section 2 of this Article VIII, or (iii) the Shares to be exchanged
under or pursuant to any state or federal statute to the extent permitted
by law; provided, however, that if required by the 1940 Act, no such
statutory conversion, Share conversion or Share exchange shall be
effective unless the terms of such transaction shall first have been
approved at a meeting called for that purpose by the "vote of a majority
of the outstanding voting securities," as such phrase is defined in the
1940 Act, of the Trust or Series or class, as applicable; provided,
further, that in all respects not governed by statute or applicable law,
the Board of Trustees shall have the power to prescribe the procedure
necessary or appropriate to accomplish a sale of assets, merger or
consolidation including the power to create one or more separate statutory
trusts to which all or any part of the assets, liabilities, profits or
losses of the Trust may be transferred and to provide for the conversion
of Shares of the Trust or any Series or class into beneficial interests in
such separate statutory trust or trusts (or series or class thereof).
Section 3. Reorganization.
A majority of the Board of Trustees may cause the Trust to sell,
convey and transfer all or substantially all of the assets of the Trust,
or all or substantially all of the assets associated with any one or more
Series or class, to another trust, statutory trust, partnership, limited
partnership, limited liability company, association or corporation
organized under the laws of any state, or to one or more separate series
or classes thereof, or to the Trust to be held as assets associated with
one or more other Series or class of the Trust, in exchange for cash,
shares or other securities (including, without limitation, in the case of
a transfer to another Series or class of the Trust, Shares of such other
Series or class) with such transfer either (a) being made subject to, or
with the assumption by the transferee of, the liabilities associated with
each Series or class the assets of which are so transferred, or (b) not
being made subject to, or not with the assumption of, such liabilities;
provided, however, that, if required by the 1940 Act, no assets associated
with any particular Series or class shall be so sold, conveyed or
transferred unless the terms of such transaction shall first have been
approved at a meeting called for that purpose by the "vote of a majority
of the outstanding voting securities," as such phrase is defined in the
1940 Act, of that Series or class. Following such sale, conveyance and
transfer, the Board of Trustees shall distribute such cash, shares or
other securities (giving due effect to the assets and liabilities
associated with and any other differences among the various Series or
classes the assets associated with which have so been sold, conveyed and
transferred) ratably among the Shareholders of the Series or class the
assets associated with which have been so sold, conveyed and transferred
(giving due effect to the differences among the various classes within
each such Series or class); and if all of the assets of the Trust have
been so sold, conveyed and transferred, the Trust shall be dissolved.
Section 4. Amendments. Subject to the provisions of the second
paragraph of this Section 4 of this Article VIII, this Declaration of
Trust may be restated and/or amended at any time by an instrument in
writing signed by a majority of the then Board of Trustees and, if
required, by approval of such amendment by Shareholders in accordance with
Article V, Section 3 hereof. Any such restatement and/or amendment hereto
shall be effective immediately upon execution and approval or upon such
future date and time as may be stated therein. The Certificate of Trust
of the Trust may be restated and/or amended at any time by the Board of
Trustees, without Shareholder approval, to correct any inaccuracy
contained therein. Any such restatement and/or amendment of the
Certificate of Trust shall be executed by at least one (1) Trustee and
shall be effective immediately upon its filing with the office of the
Secretary of State of the State of Delaware or upon such future date as
may be stated therein.
Notwithstanding the above, the Board of Trustees expressly reserves
the right to amend or repeal any provisions contained in this Declaration
of Trust or the Certificate of Trust, in accordance with the provisions of
Section 5 of Article III hereof, and all rights, contractual and
otherwise, conferred upon Shareholders are granted subject to such
reservation. The Board of Trustees further expressly reserves the right
to amend or repeal any provision of the By-Laws pursuant to Article IX of
the By-Laws.
Section 5. Filing of Copies, References, Headings. The original or
a copy of this Declaration of Trust and of each restatement and/or
amendment hereto shall be kept at the principal executive office of the
Trust or at the principal offices of any administrator where the Trust's
records are maintained so that it may be inspected by any Shareholder.
Anyone dealing with the Trust may rely on a certificate by an officer of
the Trust as to whether or not any such restatements and/or amendments
have been made and as to any matters in connection with the Trust
hereunder; and, with the same effect as if it were the original, may rely
on a copy certified by an officer of the Trust to be a copy of this
instrument or of any such restatements and/or amendments. In this
Declaration of Trust and in any such restatements and/or amendments,
references to this instrument, and all expressions of similar effect to
"herein," "hereof" and "hereunder," shall be deemed to refer to this
instrument as amended or affected by any such restatements and/or
amendments. Headings are placed herein for convenience of reference only
and shall not be taken as a part hereof or control or affect the meaning,
construction or effect of this instrument. Whenever the singular number
is used herein, the same shall include the plural; and the neuter,
masculine and feminine genders shall include each other, as applicable.
This instrument may be executed in any number of counterparts, each of
which shall be deemed an original.
Section 6. Applicable Law. This Declaration of Trust is created
under and is to be governed by and construed and administered according to
the laws of the State of Delaware and the applicable provisions of the
1940 Act and the Code. The Trust shall be a Delaware statutory trust
pursuant to the DSTA, and without limiting the provisions hereof, the
Trust may exercise all powers which are ordinarily exercised by such a
statutory trust.
Section 7. Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are severable, and
if the Board of Trustees shall determine, with the advice of counsel, that
any of such provisions is in conflict with the 1940 Act, the Code, the
DSTA, or with other applicable laws and regulations, the conflicting
provision shall be deemed not to have constituted a part of this
Declaration of Trust from the time when such provisions became
inconsistent with such laws or regulations; provided, however, that such
determination shall not affect any of the remaining provisions of this
Declaration of Trust or render invalid or improper any action taken or
omitted prior to such determination.
(b) If any provision of this Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction
and shall not in any manner affect such provision in any other
jurisdiction or any other provision of this Declaration of Trust in any
jurisdiction.
Section 8. Statutory Trust Only. It is the intention of the
Trustees to create a statutory trust pursuant to the DSTA, and thereby to
create the relationship of trustee and beneficial owners within the
meaning of the DSTA between the Trustees and each Shareholder. It is not
the intention of the Trustees to create a general or limited partnership,
limited liability company, joint stock association, corporation, bailment,
or any form of legal relationship other than a statutory trust pursuant to
the DSTA. Nothing in this Declaration of Trust shall be construed to make
the Shareholders, either by themselves or with the Trustees, partners or
members of a joint stock association.
Section 9. Use of the Trademark "MTB". The Trust expressly agrees
and acknowledges that the trademark "MTB" is the sole property of
Manufacturers and Traders Trust Company (the "Bank"). Pursuant to the
terms of a Trademark License Agreement (the "Agreement"), Bank has
consented to the use by the Trust of the identifying xxxx "MTB" with the
name "MTB Group of Funds" and has granted to the Trust a non-exclusive
license to use such xxxx as part of the name of the Trust and the name of
any Series of its Shares. The Trust further expressly agrees and
acknowledges that the non-exclusive license granted under the Agreement
may be terminated by Bank if the Trust ceases to use Bank or one of its
Affiliates as Investment Adviser or to use other Affiliates or successors
of Bank for such purposes. In such event, the non-exclusive license
granted under the Agreement may be revoked by Bank and the Trust shall
cease using the xxxx "MTB" as part of its name or the name of any Series
of Shares, unless otherwise consented to by Bank or any successor to its
interests in such name.
The Trust further understands and agrees that other mutual funds as
may be sponsored or advised by Bank or its Affiliates shall have the right
to adopt and to use the xxxx "MTB" in their names and in the names of any
Series or class of Shares of such funds.
IN WITNESS WHEREOF, the Trustees named below do hereby make and
enter into this Declaration of Trust as of the 15th day of August, 2003.
/s/ Xxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx Xxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxxxxx, Xx.
Xxxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxxx, Xx.
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxx, Xx.
