EXHIBIT (23)(a)(i)
EXECUTION COPY
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
of
WT Mutual Fund,
FORMERLY, KIEWIT INSTITUTIONAL FUND
A DELAWARE BUSINESS TRUST
EFFECTIVE MARCH 15, 2002
TABLE OF CONTENTS
PAGE
ARTICLE I Name and Definitions.................................................1
Section 1.1. Name...........................................................1
Section 1.2. Definitions....................................................1
ARTICLE II Purpose of Trust....................................................3
ARTICLE III Shares.............................................................3
Section 3.1. Shares of Beneficial Interest..................................3
Section 3.2. Establishment and Designation of Shares........................4
Section 3.3. Actions Affecting Portfolios...................................5
Section 3.4. Relative Rights and Preferences................................5
Section 3.5. Additional Rights and Preferences of Class B Shares............7
Section 3.6. Ownership of Shares............................................8
Section 3.7. Investments in the Trust.......................................8
Section 3.8. Status of Shares and Limitation of Personal Liability..........9
ARTICLE IV The Board of Trustees...............................................9
Section 4.1. Number.........................................................9
Section 4.2. Election and Tenure............................................9
Section 4.3. Effect of Death, Resignation, etc. of a Trustee................9
Section 4.4. Trustee Compensation..........................................10
ARTICLE V Power of the Trustees...............................................10
Section 5.1. Management of the Trust.......................................10
Section 5.2. Action by Written Consent.....................................10
Section 5.3. Powers of the Trustees........................................11
Section 5.4. Payment of Expenses by the Trust..............................14
Section 5.5. Ownership of Assets of the Trust..............................14
Section 5.6. Issuance and Repurchase of Shares.............................14
Section 5.7. Power of Board of Trustees to Change Provisions
Relating to Shares ...........................................14
ARTICLE VI Service Contracts..................................................15
Section 6.1. Investment Manager............................................15
Section 6.2. Principal Underwriter.........................................15
Section 6.3. Other Service Contracts.......................................15
Section 6.4. Validity of Contracts.........................................16
ARTICLE VII Shareholders' Voting Powers and Meetings..........................16
Section 7.1. Voting Powers.................................................16
Section 7.2. Voting Power and Meetings.....................................16
Section 7.3. Quorum and Required Vote......................................17
Section 7.4. Action by Written Consent.....................................17
Section 7.5. Record Dates..................................................17
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PAGE
ARTICLE VIII Net Asset Value, Distributions, and Redemptions..................17
Section 8.1. Determination of Net Asset Value, Net Income,
and Distributions ............................................17
Section 8.2. Redemptions and Repurchases...................................18
Section 8.3. Redemptions at the Option of the Trust........................18
Section 8.4. Transfer of Shares............................................19
ARTICLE IX Limitation of Liability............................................19
Section 9.1. Indemnification and Limitation of Liability...................19
Section 9.2. Trustee's Good Faith Action, Expert Advice, No Bond or
Surety........................................................19
Section 9.3. Liability of Third Persons Dealing with Trustees..............20
Section 9.4. Insurance.....................................................20
ARTICLE X Termination and Merger..............................................20
Section 10.1. Termination of Trust or Portfolio.............................20
Section 10.2. Merger and Consolidation......................................20
ARTICLE XI Miscellaneous......................................................21
Section 11.1. Amendments....................................................21
Section 11.2. Filing of Copies..............................................21
Section 11.3. References and Headings.......................................21
Section 11.4. Applicable Law................................................21
Section 11.5. Provisions in Conflict with Law or Regulations................22
Section 11.6. Business Trust Only...........................................22
Section 11.7. Counterparts..................................................22
Schedule A -- Schedule of Portfolios and Classes
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AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
OF
WT MUTUAL FUND
FORMERLY, KIEWIT INSTITUTIONAL FUND
The Agreement and Declaration of Trust of Kiewit Institutional Fund
(the "Trust"), dated as of July 19, 1994, is hereby amended and restated as of
March 15, 2002, among the individuals listed on the signatory page attached
hereto (each, a "Trustee") and each person who becomes a Shareholder in
accordance with the terms hereinafter set forth.
WHEREAS, pursuant to Section 1.1, the Trustees are authorized to
conduct the business of the Trust under any name that they may determine;
WHEREAS, the Trustees have determined that the business of the Trust
shall be conducted under the name of "WT Mutual Fund" and that a Certificate of
Amendment was filed with the Secretary of State of the State of Delaware on
October 20, 1998 to change the name of the Trust from "Kiewit Institutional
Fund" to "WT Mutual Fund";
WHEREAS, the Trustees desire to amend and restate the Agreement and
Declaration of Trust;
NOW, THEREFORE, the Trustees do hereby declare that all money and
property contributed to the trust hereunder shall be held and managed in trust
under this Agreement and Declaration of Trust, as amended and restated, for the
benefit of the Shareholders as set forth below.
ARTICLE I
NAME AND DEFINITIONS
Section 1.1. Name.
This trust shall be known as "WT Mutual Fund" and the Trustees shall conduct the
business of the Trust under that name or any other name as they may from time to
time determine.
Section 1.2. Definitions.
Whenever used herein, unless otherwise required by the context or
specifically provided:
1.2.1. "By-Laws" shall mean the By-Laws of the Trust as amended from
time to time.
1.2.2. "Classes" shall mean a portion of Shares of a Portfolio of
the Trust established in accordance with the provisions of Article III hereof.
1.2.3. "Declaration of Trust" shall mean this Agreement and
Declaration of Trust, as amended or restated from time to time.
1.2.4. "Delaware Act" refers to the Delaware Business Trust Act, 12
Del. C. Section 3801 et seq., as such act may be amended from time to time.
1.2.5. "Class Expenses" shall mean expenses incurred by a particular
Class in connection with a shareholder services arrangement or a distribution
plan that is specific to such Class or any other differing share of expenses or
differing fees, in each case, pursuant to a plan adopted by the Trust pursuant
to Rule 18f-3 under the 1940 Act, as such plan or rule may be amended from time
to time.
1.2.6. "Commission" shall mean the Securities and Exchange
Commission.
1.2.7. "General Assets" shall have the meaning set forth in Section
3.4.1 hereof.
1.2.8. "Interested Person" shall have the meaning set forth in
Section 2(a)(19) of the 0000 Xxx.
1.2.9. "Investment Manager" or "Manager" shall mean a party
furnishing services to the Trust pursuant to any contract described in Section
6.1 hereof,
1.2.10. "Person" shall mean and include any of the following:
individuals, corporations, partnerships, trusts, foundations, plans,
associations, joint ventures, estates and other entities, whether or not legal
entities, and governments and agencies and political subdivisions thereof,
whether domestic or foreign.
1.2.11. "Portfolio" refers to each series of Shares established and
designated under or in accordance with the provisions of Article III hereof.
1.2.12. "Principal Underwriter" shall have the meaning set forth in
Section (2)(a)(29) of the 0000 Xxx.
1.2.13. "Proportionate Interest" shall have the meaning set forth in
Section 3.2.2 hereof.
1.2.14. "Shares" means the shares of beneficial interest into which
the beneficial interest in the Trust shall be divided from time to time and
includes fractions of Shares as well as whole Shares.
1.2.15. "Shareholder" means a record owner of outstanding Shares of
the Trust.
1.2.16. "Trust" refers to the Delaware business trust established by
this Declaration of Trust.
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1.2.17. "Trustees" refers to the persons who have signed this
Declaration of Trust, so long as they continue in office in accordance with the
terms hereof, and all other persons who may from time to time be duly elected or
appointed to serve on the Board of Trustees in accordance with the provisions
hereof, and reference herein to a Trustee or the Trustees shall refer to such
person or persons in their capacity as trustees hereunder.
1.2.18. "Trust Property" means any and all property, real or
personal, tangible or intangible, which is owned or held by or for the account
of the Trust.
1.2.19. "1940 Act" refers to the Investment Company Act of 1940, and
the rules and regulations promulgated thereunder, each as amended from time to
time. References herein to specific sections of the 1940 Act shall be deemed to
include such rules and regulations as are applicable to such sections as
determined by the Trustees or their designees.
ARTICLE II
PURPOSE OF TRUST
The purpose of the Trust is to conduct, operate and carry on the
business of an open-end management investment company registered under the 1940
Act through one or more Portfolios investing primarily in securities and to
carry on such other business as the Trustees may from time to time determine
pursuant to authority under this Declaration of Trust.
ARTICLE III
SHARES
Section 3.1. Shares of Beneficial Interest.
3.1.1. The beneficial interest in the Trust shall at all times be
divided into an unlimited number of Shares, with a par value of $.01 per Share
provided that the Shares of a Portfolio that are established by the Trustees to
be taxable as a separate partnership for federal income tax purposes shall have
no par value. Shares shall be validly issued, fully paid and non-assessable when
issued for such consideration as the Trustees shall determine. All Shares issued
in connection with a dividend or other distribution in Shares or a split or
reverse split of Shares shall be fully paid and non-assessable.
3.1.2. Pursuant to Section 3806(b) of the Delaware Act, the Trustees
shall have authority, from time to time, (i) to establish Shares of a Portfolio,
each of which constitutes a Portfolio and shall be separate and distinct from
the Shares in any other Portfolio and (ii) to further divide Shares of any
Portfolio into one or more separate and distinct classes of Shares, each of
which constitutes a Class.
3.1.3. The Portfolios shall include, without limitation, those
Portfolios specifically established and designated in Section 3.2.1 hereof, and
such other Portfolios as the Trustees may deemed necessary or desirable. The
Trustees shall have exclusive power, without the requirement of Shareholder
approval, from time to time, to establish and designate such separate and
distinct Portfolio, and, subject to the provisions of this Declaration and the
1940 Act, to fix and determine the rights of Shareholders of Shares in such
Portfolio. If only one
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Portfolio shall be established, unless provided for otherwise the Shares shall
have the rights and preferences provided for herein and in Section 3.4 hereof to
the extent relevant.
3.1.4. This Trust is a series trust pursuant to Sections 3804(a) and
3806(b) of the Delaware Act, and each Portfolio shall be a separate series of
the Trust within the meaning of Section 3806(b)(2) of the Delaware Act. As such,
separate and distinct records shall be maintained for each Portfolio and the
assets of the Trust associated with each Portfolio shall be held and accounted
for separately from the other assets of the Trust or any other Portfolio. The
debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to each Portfolio shall be enforceable against
the assets of such Portfolio only, and not against the assets of the Trust
generally or the assets of any other Portfolio nor shall the assets of any
Portfolio be charged with the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to another
Portfolio, or, except as otherwise provided herein, the Trust generally.
Section 3.2. Establishment and Designation of Shares.
3.2.1. The Trust shall consist of one or more separate and distinct
Portfolios, each with an unlimited number of Shares unless otherwise specified.
The Trustees may establish one or more Classes of Shares of any Portfolio, each
with an unlimited number of Shares unless otherwise specified.
3.2.2. Each Class so established and designated shall represent a
proportionate undivided interest (as determined by or at the direction of, or
pursuant to authority granted by, the Trustees, consistent with industry
practice) ("Proportionate Interest") in the net assets belonging to that
Portfolio and shall have identical voting, dividend, liquidation and other
rights, preferences, powers, restrictions, limitations and designations and be
subject to the same terms and conditions, except that (i) Class Expenses
allocated to a Class for which such expenses were incurred shall be borne solely
by that Class, (ii) other expenses, costs, charges and reserves allocated to a
Class in accordance with Section 3.4.2 may be borne solely by that Class,
provided that the allocation of such other expenses, costs, charges, and
reserves is not specifically required to be set forth in a plan adopted by the
Trust pursuant to Rule 18f-3 under the 1940 Act; (iii) dividends declared and
payable to a Class pursuant to Section 3.4.3 shall reflect the items separately
allocated thereto pursuant to the preceding clauses, (iv) each Class may have
separate rights to convert to another Class, exchange rights, and similar
rights, each as determined by the Trustees, and (v) subject to Section 7.1
hereof, each Class may have exclusive voting rights with respect to matters
affecting only that Class. Any fractional Share of a Portfolio shall have
proportionately all rights and obligations of a whole share of such Portfolio,
including rights with respect to voting, receipt of dividends and distributions
and redemptions of Shares as set forth in Section 3.4 hereof.
3.2.3. The Trustees hereby establish and designate the Portfolios
and Classes listed on Schedule A attached hereto and made a part hereof. Each
additional Portfolio and the Classes of such additional Portfolio shall be
established by the adoption of a resolution adopted by a majority of the
Trustees. Each such resolution is incorporated herein by reference and made a
part of the Declaration of Trust whether or not expressly stated in such
resolution, and shall be effective upon the occurrence of both (i) the date
stated therein (or, if no such date is
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stated, upon the date of such adoption) and (ii) the execution of an amendment
either to this Declaration of Trust or to Schedule A hereto establishing and
designating such additional Portfolios and Classes.
Section 3.3. Actions Affecting Portfolios.
Subject to the right of Shareholders, if any to vote pursuant to Section 7.1,
the Trustees shall have full power and authority, in their sole discretion
without obtaining any prior authorization or vote of the Shareholders of any
Portfolio, or any Class or Classes thereof, to fix or change such preferences,
voting powers, rights and privileges of any Portfolio, or Classes thereof, as
the Trustees may from time to time determine, including any change that may
adversely affect a Shareholder; to divide or combine the Shares of any
Portfolio, or Classes thereof, into a greater or lesser number; to classify,
reclassify or convert any issued Shares of any Portfolio, or Classes thereof,
into one or more Portfolios or Classes of Shares of a Portfolio; and to take
such other action with respect to the Shares as the Trustees may deem desirable.
A Portfolio may issue any number of shares but need not issue any shares. At any
time that there are no outstanding Shares of any particular Portfolio previously
established and designated, the Trustees may abolish that Portfolio and the
establishment or and designation thereof.
Section 3.4. Relative Rights and Preferences.
Shares of each Portfolio established pursuant to Section 3.2 hereof, unless
otherwise provided in the resolution establishing such Portfolio, shall have the
following relative rights and preferences:
3.4.1. Assets Held with Respect to a Particular Portfolio.
(a) Specific Assets. All consideration received by the Trust
for the issue or sale of Shares of a particular Portfolio, including dividends
and distributions paid by, and reinvested in, such Portfolio, 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 Portfolio for all purposes, subject only to the rights of
creditors, 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 Portfolio.
(b) General Assets. 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 Portfolio
(collectively "General Assets"), the Trustees shall allocate such General Assets
to, between or among any one or more of the Portfolios in such manner and on
such basis as the Trustees, in their sole discretion, deem fair and equitable,
and any General Asset so allocated to a particular Portfolio shall be held with
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respect to that Portfolio. Each such allocation by the Trustees shall be
conclusive and binding upon the Shareholders of all Portfolios for all purposes
in absence of manifest error.
(c) Each Class of a Portfolio shall have a Proportionate
Interest in the net assets belonging to that Portfolio. References herein to
assets, expenses, charges, costs and reserves "allocable" or "allocated" to a
particular Class of a Portfolio shall mean the aggregate amount of such items
multiplied by the Class's Propionate Interest.
3.4.2. Liabilities Held with Respect to a Particular Portfolio.
(a) Specific Liabilities. The assets of the Trust held with
respect to each Portfolio shall be charged with the liabilities of the Trust
with respect to such Portfolio and all expenses, costs, charges and reserves
attributable to such Portfolio. Class Expenses shall, in all cases, be allocated
to the Class for which such Class Expenses were incurred.
(b) General Liabilities. Any general liabilities, expenses,
costs, charges or reserves of the Trust or any Portfolio that are not readily
identifiable as belonging to a particular Portfolio or any particular Class
thereof shall be allocated and charged by the Trustees, between or among any one
or more of the Portfolios or Classes in such manner and on such basis as the
Trustees in their sole discretion deem fair and equitable. Each allocation of
liabilities, expenses, costs, charges and reserves by the Trustees shall be
conclusive and binding upon the Shareholders of all Portfolios for all purposes
in absence of manifest error.
(c) All Persons who have extended credit which has been
allocated to a particular Portfolio, or who have a claim or contract which has
been allocated to a Portfolio, shall look exclusively to the assets held with
respect to such Portfolio for payment of such credit, claim, or contract. None
of the debts, liabilities, obligations and expenses incurred, contracted or
otherwise existing with respect to the Trust generally that have not been
allocated to a specified Portfolio, or with respect to any other Portfolio,
shall be enforceable against the assets of such specified Portfolio. Each
creditor, claimant and contracting party shall be deemed nevertheless to have
agreed to such limitation unless an express provision to the contrary has been
incorporated in the written contract or other document establishing the
contractual relationship.
3.4.3. Dividends, Distributions, Redemptions, and Repurchases.
Shareholders of any Portfolio shall be entitled to receive dividends and
distributions, when, if and as declared with respect thereto in the manner
provided in Section 8.1 hereof. The Trustees shall have full discretion 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 in absence of manifest error. The Trustees may adopt and offer to
Shareholders such dividend reinvestment plans, cash distribution payment plans,
or similar plans as the Trustees deem appropriate.
No Share shall have any priority or preference over any other Share
of the same Portfolio or Class thereof with respect to dividends or
distributions of the Trust or otherwise. All dividends and other distributions
on Shares of a particular Portfolio or Class shall be distributed
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pro rata to the Shareholders of such Portfolio or Class, as the case may be, in
proportion to the number of Shares of such Portfolio or Class they held on the
record date established for such payment, provided that such dividends and other
distributions on Shares of a Class shall appropriately reflect Class Expenses
and other expenses allocated to that Class.
No dividend or distribution including, without limitation, any
distribution paid upon termination of the Trust or of any Portfolio or Class
with respect to, or any redemption or repurchase of, the Shares of any Portfolio
or Class shall be effected by the Trust other than from the assets held with
respect to such Portfolio or Class , nor shall any Shareholder of any Portfolio
or Class otherwise have any right or claim against the assets held with respect
to any other Portfolio or Class except to the extent that such Shareholder has
such a right or claim hereunder as a Shareholder of such other Portfolio or
Class.
3.4.4. Voting. Subject to the provisions of Section 3.5, each Share
shall have voting rights as provided in Article VII hereof. All Shares of the
Trust entitled to vote on a matter shall vote without differentiation among the
separate Portfolios on a one-vote-per-Share basis; provided however, if a matter
to be voted on affects only the interests of certain Portfolios, then only the
Shareholders of such affected Portfolio shall be entitled to vote on the matter.
3.4.5. Exchange Privilege. The Trustees shall have the authority to
provide that the Shareholders of any Portfolio shall have the right to exchange
such Shares for Shares of one or more other Portfolios in accordance with such
requirements and procedures as may be established by the Trustees.
3.4.6. Transferability. The Trustees shall have the authority to
provide that the shares of a Portfolio are non-transferable.
3.4.7. Preemptive Rights. Shareholders shall have no preemptive or
other right to subscribe to any additional Shares or other securities issued by
the Trust or any Portfolio.
Section 3.5. Additional Rights and Preferences of Class B Shares.
In addition to the relative rights and preferences set forth in Section 3.4
hereof and all other provisions of this Agreement relating to the Trust
generally, any Class of any Portfolio designated as Class B Shares shall have
the following rights and preferences:
3.5.1. Subject to the provisions of Section 3.5.3 below, all Class B
Shares other than those purchased through the reinvestment of dividends and
distributions shall automatically convert to Class A Shares eight (8) years
after the end of the calendar month in which a Shareholder's order to purchase
such shares was accepted.
3.5.2. Subject to the provisions of Section 3.5.3 below, Class B
Shares purchased through the reinvestment of dividends and distributions paid in
respect of Class B Shares will be considered held in a separate sub-account and
automatically convert to Class A Shares in the same proportion as any Class B
Shares (other than those in the sub-account) that convert to Class A Shares.
Other than this conversion feature, the Class B Shares purchased through the
reinvestment of dividends and distributions paid in respect of Class B Shares
shall
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have all the rights, preferences restrictions limitations as to dividends,
qualifications and terms and conditions of redemption of Class B Shares
generally.
3.5.3. If (i) the Class A Shareholders of a Portfolio approve any
increase in expenses allocated to the Class A Shares of that Portfolio in
connection with (x) a plan of distribution adopted pursuant to Rule 12b-1 of the
1940 Act, (y) a non-Rule 12b-1 shareholder services plan, or (z) any other plan
or arrangement whereby Classes of that Portfolio pay a different share of other
expenses, not including advisory or custodial fees or other expenses related to
the management of the Trust's assets, then (ii) the Class B Shares of that
Portfolio will stop converting to Class A Shares unless the Class B Shareholders
of that Portfolio, voting separately, approve the increase in expenses. The
Trustees shall have sole discretion in determining whether such increase in
expenses is submitted to a vote of the Class B Shareholders. Should such
increase in expenses not be submitted to a vote of the Class B Shareholders, or
if submitted, should the Class B Shareholders fail to approve such increase in
expenses, the Trustees shall take such action as is necessary to: (1) create a
new class of that Portfolio (the "New Class A Shares") which shall be identical
in all material respects to the Class A Shares of that Portfolio as they existed
prior to the implementation of such increase in expenses; and (2) ensure that
the existing Class B shares of that Portfolio will be exchanged or converted
into New Class A Shares no later than the date such Class B Shares were
scheduled to convert to Class A Shares. If deemed advisable by the Trustees to
implement the foregoing, and at the sole discretion of the Trustees, such action
may include the exchange of all Class B Shares of that Portfolio for a new class
of that Portfolio (the "New Class B Shares"), identical in all material respect
to the Class B Shares of that Portfolio except that the New Class B Shares will
automatically convert to the New Class A Shares. Such exchange or conversions
shall be effected in a manner that the Trustees reasonably believe will not be
subject to federal taxation.
Section 3.6. Ownership of Shares.
The ownership of Shares shall be recorded on the books of the Trust or a
transfer or similar agent for the Trust, which books shall be maintained
separately for the Shares of each Portfolio and Class thereof. No certificates
evidencing the ownership of Shares shall be issued except as the Board of
Trustees may otherwise determine from time to time. The Trustees may make such
rules as they consider appropriate for the transfer of Shares of each Portfolio
and similar matters and, by resolution, may restrict the transfer of Shares of a
Portfolio. The record books of the Trust as kept by the Trust or any transfer or
similar agent, as the case may be, shall be conclusive as to the identity of the
Shareholders of each Portfolio and as to the number of Shares of each Portfolio
and Class thereof held from time to time by each Shareholder.
Section 3.7. Investments in the Trust.
Investments may be accepted by the Trust from such Persons, at such times, on
such terms, and for such consideration as the Trustees from time to time may
authorize. Each investment shall be credited to the Shareholder's account in the
form of full and fractional Shares of the Trust in such Portfolio and Class as
the purchaser shall select, at the net asset value per Share next determined for
such Portfolio and Class after receipt of the investment; provided, however,
that the Trustees may, in their sole discretion, impose a reimbursement fee upon
investments in the Trust.
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Section 3.8. Status of Shares and Limitation of Personal Liability.
Shares shall be deemed to be personal property giving only the rights provided
in this Declaration of Trust, the By-Laws of the Trust and the resolutions of
the Board of Trustees. Every Shareholder by virtue of having become a
Shareholder shall be held to have expressly assented and agreed to the terms
thereof. The death of a Shareholder during the existence of the Trust shall not
operate to terminate the Trust, nor entitle the representative of any deceased
Shareholder to an accounting or to take any action in court or elsewhere against
the Trust or the Trustees, but shall entitle such representative only to the
rights of said deceased Shareholder under this Declaration of Trust. Ownership
of Shares shall not entitle a 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 or joint venturers except as specifically provided for
pursuant to Article III herein or by resolution of the Board of Trustees.
Neither the Trust nor the Trustees, nor any officer, employee or agent of the
Trust shall have any power to bind personally any Shareholder, or to call upon
any Shareholder for the payment of any sum of money or assessment whatsoever
other than such as the Shareholder may at any time agree to pay.
ARTICLE IV
THE BOARD OF TRUSTEES
Section 4.1. Number.
The number of Trustees constituting the Board of Trustees shall be fixed from
time to time by a written instrument signed, or by resolution approved at a duly
constituted meeting, by a majority of the Board of Trustees, provided, however,
that the number of Trustees shall in no event be less than one (1) nor more than
fifteen (15).
Section 4.2. Election and Tenure.
Subject to the requirements of Section 16(a) of the 1940 Act, 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 and remove Trustees with or
without cause. 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 competent jurisdiction, or is removed. Any Trustee may resign at any
time by written instrument signed by him and delivered to any officer of the
Trust or to a meeting of the Trustees. Such resignation shall be effective upon
receipt unless specified to be effective at some other time. Except to the
extent expressly provided in a written agreement with the Trust, no Trustee
resigning and no Trustee removed shall have any right to any compensation for
any period following his or her resignation or removal, or any right to damages
or other payment on account of such removal. Any Trustee may be removed at any
meeting of Shareholders by a vote of two-thirds of the outstanding Shares of the
Trust. A meeting of Shareholders for the purpose of electing or removing one or
more Trustees may be called (i) by the Trustees upon their own vote, or (ii)
upon the demand of Shareholders owning 10% or more of the Shares of the Trust in
the aggregate.
Section 4.3. Effect of Death, Resignation, etc. of a Trustee.
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The death, declination, resignation, retirement, removal, or incapacity of one
or more Trustees, or all of them, shall not operate to annul the Trust or to
revoke any existing agency created pursuant to the terms of this Declaration of
Trust. Whenever a vacancy in the Board of Trustees shall occur, until such
vacancy is filled as provided in Section 4.2, the Trustees in office, regardless
of their number, shall have all the powers granted to the Trustees and shall
discharge all the duties imposed upon the Trustees by this Declaration of Trust.
Section 4.4. Trustee Compensation.
The Trustees as such shall be entitled to reasonable compensation from the
Trust. They may fix the amount of their compensation. Nothing herein shall in
any way prevent the employment of any Trustee for advisory, management,
administrative, legal, accounting, investment banking, underwriting, brokerage,
or investment dealer or other services and the payment for the same by the
Trust.
ARTICLE V
POWER OF THE TRUSTEES
Section 5.1. Management of the Trust.
The Trustees shall have exclusive and absolute control over the Trust Property
and over the business of the Trust to the extent as if the Trustees were the
sole owners of the Trust Property and business in their own right, but with such
powers of delegations as may be permitted by this Declaration of Trust. The
Trustees shall have power to conduct the business of the Trust and carry on its
operations in any and all of its branches and maintain offices both within and
without the State of Delaware, in any and all states of the United States
America, in the District of Columbia, in any and all commonwealths, territories,
dependencies, colonies, or possession of the United Sates of America, and in any
and all foreign jurisdictions and to do all such other things and execute any
and all such instruments that they may consider desirable, necessary or
appropriate in order to promote the interests of the Trust although such things
are not herein specifically mentioned. Any determination as to what is in the
interests of the Trust made by the Trustees in good faith shall be conclusive.
In construing the provisions of this Agreement, the presumption shall be in
favor of a grant of power to the Trustees and unless otherwise specified herein
or required by the 1940 Act or other applicable 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 or a majority of any duly constituted committee of
Trustees. The enumeration of any specific power in this Declaration of Trust
shall not be construed as limiting the aforesaid power. The powers of the
Trustees may be exercised without order of or resort to any court or other
authority.
Section 5.2. Action by Written Consent.
Any action required or permitted to be taken at any meeting of the Board of
Trustees, or any committee thereof, may be taken without a meeting if all
members of the Board of Trustees or committee (as the case may be) consent
thereto in writing, and the writing or writings are filed with the minutes of
the proceedings of the Board of Trustees, or committee, except as otherwise
provided in the 1940 Act.
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Section 5.3. Powers of the Trustees.
Without limiting the provisions of Section 5.1, the Trust shall have power and
authority:
5.3.1. To operate as, and to carry on the business of, an investment
company, and exercise all the powers necessary and appropriate to the conduct of
such operations;
5.3.2. To invest and reinvest cash and cash items, to hold cash
uninvested, and to subscribe for, invest in, reinvest in, purchase or otherwise
acquire, own, hold, pledge, sell, assign, transfer, exchange, distribute, write
options on, lend or otherwise deal in or dispose of contracts for the future
acquisition or delivery of all types of securities, futures contracts and
options thereon, and forward currency contracts 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 organization, 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, futures contracts and options thereon, and forward currency
contracts, to change the investments of the assets of the Trust; and to exercise
any and all rights, powers, and privileges of ownership or interest in respect
of any and all such investments of every kind and description, including,
without limitation, the right to consent and otherwise act with respect thereto,
with power to designate one or more Persons, to exercise any of said rights,
powers, and privileges in respect of any of said instruments;
5.3.3. 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 Portfolio;
5.3.4. 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;
5.3.5. To exercise powers and right of subscription or otherwise
which in any manner arise out of ownership of securities;
5.3.6. To hold any security or property in a form not indicating
that it is Trust Property, whether in bearer, book entry, 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
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or to authorize the custodian or a subcustodian or a nominee or nominees to
deposit the same in a securities depository, subject in each case to the
applicable provisions of the 1940 Act;
5.3.7. 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;
5.3.8. 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;
5.3.9. To litigate, compromise, arbitrate, settle or otherwise
adjust claims in favor of or against the Trust or a Portfolio, or any matter in
controversy, including but not limited to claims for taxes;
5.3.10. To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
5.3.11. To borrow funds or other property in the name of the Trust
or Portfolio exclusively for Trust purposes;
5.3.12. 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;
5.3.13. Subject to Article IX, to purchase and pay for entirely out
of Trust Property such insurance as the Trustees may deem necessary, desirable
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 Manager,
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 Manager, Principal Underwriter, or
independent contractor, including any action taken or omitted that may be
determined to constitute negligence;
5.3.14. Subject to the provisions of Section 3804 of the Delaware
Act, to allocate assets, liabilities and expenses of the Trust to a particular
Portfolio or to apportion the same between or among two or more Portfolio,
provided that any liabilities or expenses incurred by a particular Portfolio
shall be payable solely out of the assets of that Portfolio;
5.3.15. To adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement, incentive and
benefit plans, trusts and
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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;
5.3.16. To 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;
5.3.17. To elect and remove such officers and appoint and terminate
such agents as they consider appropriate;
5.3.18. To appoint from their own and establish and terminate one or
more committees consisting of two or more Trustees who may exercise the powers
and authority of the Board of Trustees to the extent that the Trustees determine
and to adopt a committee charter providing for such responsibilities;
5.3.19. To employ one or more custodians of the assets of the Trust
and may authorize such custodians to employ subcustodians and to deposit all or
any part of such assets in a system or systems for the central handling of
securities or with a Federal Reserve Bank;
5.3.20. To retain a transfer agent or a shareholder servicing agent,
or both;
5.3.21. To provide for the issuance and distribution of Shares by
the Trust directly or through one or more Principal Underwriters or otherwise;
5.3.22. To set record dates for the determination of Shareholders
with respect to various matters; declare and pay dividends and distributions to
Shareholders of each Portfolio from the assets of such Portfolio;
5.3.23. To establish from time to time separate and distinct
Portfolio with separately defined investment objectives and policies and
distinct investment purpose in accordance with Article III hereof;
5.3.24. To interpret the investment policies, practices or
limitations of any Portfolio;
5.3.25. To establish, from time to time, a minimum investment for
Shareholders in the Trust or in one or more Portfolios, or to require the
redemption of the Shares of any Shareholder whose investment is less than such
minimum upon giving notice to such Shareholder or in accordance with Section
8.3;
5.3.26. To delegate such authority as they consider desirable to any
officer of the Trust, to any committee of the Trustees and to any agent or
employee of the Trust or to any such custodian, transfer or servicing agents,
Investment Manager or Principal Underwriter;
5.3.27. In general to carry on any other business in connection with
or incidental to any of the foregoing powers, to do everything necessary,
suitable or proper for the
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accomplishment of any purpose or the attainment of any object or the furtherance
of any power set forth herein, either alone or in association with others, and
to do every other act or thing incidental or appurtenant to or arising from the
businesses, purposes, objects or powers set forth above.
The Trust shall not be limited to investing in obligations maturing
before the possible termination of the Trust or one or more of its Portfolios.
The Trust shall not in any way be bound or limited by any present or future law
or custom in regard to investment by fiduciaries. The Trust shall not be
required to obtain any court order to deal with any assets of the Trust or take
any other action hereunder.
Section 5.4. Payment of Expenses by the Trust.
The Trustees are authorized to pay or cause to be paid out of the principal or
income of the Trust or a Portfolio, or partly out of the principal and partly
out of income, and to charge or allocate the same to, between or among such one
or more of the Portfolio, all expenses, fees, charges, taxes and liabilities
incurred or arising in connection with the Trust or Portfolio, or in connection
with the management thereof, including, but not limited to, the Trustees'
compensation and such expenses and charges for the services of the Trust's
officers, employees, Investment Manager, Principal Underwriter, auditors,
counsel, custodian, transfer agent, servicing agents, and such other agents or
independent contractors and such other expenses and charges as the Trustees may
deem necessary or proper to incur.
Section 5.5. Ownership of Assets of the Trust.
Title to all of the assets of the Trust shall at all times be considered as
vested in the Trust, except that the Trustees shall have power to cause legal
title to any Trust Property to be held by or in the name of one or more of the
Trustees, or in the name of the Trust, or in the name of any other Person as
nominee, on such terms as the Trustees may determine. Upon the resignation,
incompetency, bankruptcy, removal, or death of a Trustee he or she shall
automatically cease to have any such title in any of the Trust Property, and the
title of such Trustee in the Trust Property shall vest automatically in the
remaining Trustees. Such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered. The
Trustees may determine that the Trust or the Trustees, acting for and on behalf
of the Trust, shall be deemed to hold beneficial ownership of any income earned
on the securities owned by the Trust, whether domestic or foreign.
Section 5.6. Issuance and Repurchase of Shares.
The Trustees shall have the power to issue, sell, transfer, repurchase, redeem,
retire, cancel, acquire, hold, resell, reissue, dispose of, or other wise deal
in Shares and, subject to applicable law and the provisions set forth in Section
3.3 hereof, to apply to any such repurchase, redemption, retirement,
cancellation or acquisition of Shares any funds or property of the Trust, or any
assets belonging to the particular Portfolio, with respect to which such shares
are issued.
Section 5.7. Power of Board of Trustees to Change Provisions Relating
to Shares.
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Notwithstanding any other provision of this Declaration of Trust to the
contrary, and without limiting the power of the Board of Trustees to amend the
Declaration of Trust, the Board of Trustees shall have the power to amend this
Declaration of Trust, at any time and from time to time, in such manner as the
Board of Trustees may determine in their sole discretion, without the need for
action by any Shareholder, so as to add to, delete, replace or otherwise modify
any provisions relating to the Shares contained in this Declaration of Trust,
provided that before adopting any such amendment without approval of the
Shareholders, the Board of Trustees shall determine that it is consistent with
the fair and equitable treatment of all Shareholders or that approval of the
Shareholders is not required by the 1940 Act or other applicable law. If Shares
have been issued, approval of the Shareholders shall be required to adopt any
amendments to this Declaration of Trust which would adversely affect to a
material degree the rights and preferences of the Shares of any Portfolio or to
increase or decrease the par value of the Shares of any Portfolio.
ARTICLE VI
SERVICE CONTRACTS
Section 6.1. Investment Manager.
The Trustees may, at any time and from time to time, contract for exclusive or
nonexclusive advisory, management and/or administrative services for the Trust
or for any Portfolio with any Person; and any such contract may contain such
other terms as the Trustees may determine, including without limitation,
authority for the Investment Manager to determine from time to time without
prior consultation with the Trustees what investments shall be purchased, held,
sold or exchanged and what portion, if any, of the assets of the Trust shall be
held uninvested and to make changes in the Trust's investments, and such other
responsibilities as may specifically be delegated to such Person.
The Trustees may authorize the Investment Manager to employ, from
time to time, one or more sub-advisers to perform such of the acts and services
of the Investment Manager, and upon such terms and conditions, as may be agreed
among the Trustees, the Investment Manager and sub-adviser. Any reference in
this Declaration of Trust to the Investment Manager shall be deemed to include
such sub-advisers, unless the context otherwise requires.
Section 6.2. Principal Underwriter.
The Trustees may also, at any time and from time to time, contract with any
Persons, appointing such Persons exclusive or nonexclusive distributor or
Principal Underwriter for the Shares of one or more of the Portfolios or other
securities to be issued by the Trust. Every such contract may contain such other
terms as the Trustees may determine.
Section 6.3. Other Service Contracts.
The Trustees are also empowered, at any time and from time to time, to contract
with any Persons, appointing such Person(s) to serve as custodian(s), transfer
agent and/or shareholder servicing agent for the Trust or one or more of its
Portfolios. Every such contract shall comply with such terms as may be required
by the Trustees. The Trustees are further empowered, at any
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time and from time to time, to contract with any Persons to provide such other
services to the Trust or one or more of the Portfolios, as the Trustees
determine to be in the best interests of the Trust and the applicable
Portfolios.
Section 6.4. Validity of Contracts.
The fact that:
(a) any of the Shareholders, Trustees, 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
Person with which an advisory, management or administration contract, or
Principal Underwriter's or distributor's contract, or transfer, shareholder
servicing or other type of service contract may be made, or
(b) any Person with which an advisory, management or
administration contract or Principal Underwriter's or distributor's contract, or
transfer, shareholder servicing or other type of service contract may be made
also has an advisory, management or administration contract, or Principal
Underwriter's or distributor's contract, or transfer, shareholder servicing or
other service contract, or has other business or interests with any other
Person,
shall not affect the validity of any such contract or disqualify any
Shareholder, Trustee or officer of the Trust from voting upon or executing the
same, or create any liability or accountability to the Trust or its
Shareholders, provided approval of each such contract is made pursuant to the
applicable requirements of the 1940 Act.
ARTICLE VII
SHAREHOLDERS' VOTING POWERS AND MEETINGS
Section 7.1. Voting Powers.
Subject to Section 3.4.4 and Section 3.5, the Shareholders shall have right to
vote only (i) for removal of Trustees as provided in Section 4.2 hereof, (ii)
with respect to such additional matters relating to the Trust as may be required
by the applicable provisions of the 1940 Act, including Section 16(a) thereof,
(iii) with respect to matters specified in Section 10.3 and (iv) on such other
matters as the Trustees may consider necessary or desirable. Each whole Share
shall be entitled to one vote as to any matter on which it is entitled to vote
and each fractional Share shall be entitled to a proportionate fractional vote.
There shall be no cumulative voting in the election of Trustees. Shares may be
voted in person or by proxy. A proxy purporting to be executed by or on behalf
of a Shareholder shall be deemed valid unless challenged at or prior to its
exercise and the burden of proving invalidity shall rest on the challenger.
Section 7.2. Voting Power and Meetings.
Meetings of the Shareholders may be called by the Trustees for the purposes
described in Section 7.1 hereof. A meeting of Shareholders may be held at any
place designated by the Trustees. Written notice of any meeting of Shareholders
shall be given or caused to be given by the Trustees by delivering personally or
mailing such notice at least seven (7) days before such
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meeting, postage prepaid, stating the time and place of the meeting, to each
Shareholder at the Shareholder's address as it appears on the records of the
Trust. Whenever notice of a meeting is required to be given to a Shareholder
under this Declaration of Trust, a written waiver thereof, executed before or
after the meeting by such Shareholder or his or her attorney thereunto
authorized and filed with the records of the meeting, or actual attendance at
the meeting of Shareholders in person or by proxy, shall be deemed equivalent to
such notice.
Section 7.3. Quorum and Required Vote.
Except when a larger quorum is required by the applicable provisions of the 1940
Act, forty percent (40%) of the Shares entitled to vote on a matter shall
constitute a quorum at a meeting of the Shareholders. Any meeting of
Shareholders may be adjourned from time to time by a majority of the votes
properly cast upon the question of adjourning a meeting to another date and
time, whether or not a quorum is present, and the meeting may be held as
adjourned within a reasonable time after the date set for the original meeting
without further notice. Subject to Section 3.4.4 and the applicable provisions
of the 1940 Act, when a quorum is present at any meeting, a majority of the
Shares voted shall decide any questions except only a plurality vote shall be
necessary to elect Trustees.
Section 7.4. Action by Written Consent.
Any action taken by Shareholders may be taken without a meeting if Shareholders
holding a majority of the Shares entitled to vote on the matter (or such larger
proportion thereof as shall be required by any express provision of this
Declaration of Trust or by the By-Laws) and holding a majority (or such larger
proportion as aforesaid) of the Shares of any Portfolio (or class) entitled to
vote separately on the matter consent to the action in writing and such written
consents are filed with the records of the meetings of Shareholders. Such
consent shall be treated for all purposes as a vote taken at a meeting of
Shareholders.
Section 7.5. Record Dates.
For the purpose of determining the Shareholders who are entitled to vote or act
at any meeting or any adjournment thereof, the Trustees may fix a time, which
shall be not more than ninety (90) days before the date of any meeting of
Shareholders, as the record date for determining the Shareholders having the
right to notice of and to vote at such meeting and any adjournment thereof, and
in such case only Shareholders of record on such record date shall have such
right, notwithstanding any transfer of shares on the books of the Trust after
the record date. For the purpose of determining the Shareholders who are
entitled to receive payment of any dividend or of any other distribution, the
Trustees may fix a date, which shall be before the date for the payment of such
dividend or distribution, as the record date for determining the Shareholders
having the right to receive such dividend or distribution. Nothing in this
Section shall be construed as precluding the Trustees from setting different
record dates for different Portfolios.
ARTICLE VIII
NET ASSET VALUE, DISTRIBUTIONS, AND REDEMPTIONS
Section 8.1. Determination of Net Asset Value, Net Income, and
Distributions.
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The Trustees, in their absolute discretion, may prescribe and shall set forth in
the By-laws or in a duly adopted resolution of the Trustees such bases and time
for determining the per Share net asset value of the Shares of any Portfolio and
the net income attributable to the Shares of any Portfolio and the declaration
and payment of dividends and distributions on the Shares of any Portfolio, as
they may deem necessary or desirable.
Section 8.2. Redemptions and Repurchases.
8.2.1. 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 redeem such Shares or in accordance with such
procedures for redemption as the Trustees may from time to time authorize; and
the Trust will pay therefor the net asset value thereof, in accordance with the
By-Laws, the applicable provisions of the 1940 Act or as further provided by
resolution of the Trustees. Payment for said Shares shall be made by the Trust
to the Shareholder within seven days after the date on which the request for
redemption is received in proper form. The obligation set forth in this Section
8.2 is subject to the provision that in the event that any time the New York
Stock Exchange (the "Exchange") is closed for other than weekends or holidays,
or if permitted by the rules of the Commission during periods when trading on
the Exchange is restricted or during any emergency which makes it impracticable
for the Trust to dispose of the investments of the applicable Portfolio or to
determine fairly the value of the net assets held with respect to such Portfolio
or during any other period permitted by order of the Commission for the
protection of investors, such obligations may be suspended or postponed by the
Trustees.
8.2.2. The redemption price may in any case or cases be paid in cash
or wholly or partly in kind in accordance with Rule l8f-1 under the 1940 Act if
the Trustees determine that such payment is advisable in the interest of the
remaining Shareholders of the Portfolio of which the Shares are being redeemed.
Subject to the foregoing, the selection and quantity of securities or other
property so paid or delivered as all or part of the redemption price shall be
determined by or under authority of the Trustees. 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.
Section 8.3. Redemptions at the Option of the Trust.
The Trust shall have the right, at its option, upon sixty (60) days notice to
the affected Shareholder at any time to redeem Shares of such Shareholder at the
net asset value thereof as described in Section 8.1 herein or as further
provided by resolution of Trustees: (i) if at such time such Shareholder owns
Shares of any Portfolio having an aggregate net asset value of less than a
minimum value determined from time to time by the Trustees; (ii) to the extent
that such Shareholder owns Shares of a Portfolio equal to or in excess of a
maximum percentage of the outstanding Shares of such Portfolio determined from
time to time by the Trustees; (iii) to the extent that such Shareholder owns
Shares equal to or in excess of a maximum percentage, determined from time to
time by the Trustees, of the outstanding Shares of the Trust. The Trustees may
also, at their option, call for the redemption of Shares of any Shareholder or
may refuse to transfer or issue Shares to any Person to the extent that the same
is necessary to comply with applicable law or advisable to further the purpose
for which the Trust was established. In
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furtherance of the purposes of the Trust, if an executive officer of the Trust
has determined that a Shareholder has engaged in excessive trading in Shares of
a Portfolio, the Trust may require such Shareholder to redeem such Shareholder's
Shares at the net asset value thereof as described in Section 8.1.
To the extent permitted by law, the Trustees may retain the proceeds
of any redemption of Shares required by them for payments of amounts due and
owing by a Shareholder to the Trust or any Portfolio.
Section 8.4. Transfer of Shares.
Except to the extent that the Trustees have provided by resolution that the
Shares of a Portfolio are non-transferable, the Trust shall transfer shares held
of record by any Person to any other Person upon receipt by the Trust or a
Person designated by the Trust of a written request therefore in such form and
pursuant to such procedures as may be approved by the Trustees.
ARTICLE IX
LIMITATION OF LIABILITY
Section 9.1. Indemnification and Limitation of Liability.
The Trustees shall not be responsible or liable in any event for any neglect or
wrong-doing of any officer, agent, employee, Manager or Principal Underwriter of
the Trust, nor shall any Trustee be responsible for the act or omission of any
other Trustee, and, subject to the provisions of the Bylaws, the Trust out of
its assets may indemnify and hold harmless each and every Trustee and officer of
the Trust from and against any and all claims, demands, costs, losses, expenses,
and damages whatsoever arising out of or related to such Trustee's performance
of his or her duties as a Trustee or officer of the Trust; provided that nothing
herein contained shall indemnify, hold harmless or protect any Trustee or
officer from or against any liability to the Trust or any Shareholder to which
he or she 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 or her office.
Every note, bond, contract, instrument, certificate or undertaking
and every other act or thing whatsoever issued, executed or done by or on behalf
of the Trust or the Trustees or any of them in connection with the Trust shall
be conclusively deemed to have been issued, executed or done only in or with
respect to their or his or her capacity as Trustees or Trustee, and such
Trustees or Trustee shall not be personally liable thereon.
Section 9.2. Trustee's Good Faith Action, Expert Advice, No Bond or
Surety.
The exercise by the Trustees of their powers hereunder shall be binding upon
everyone interested in or dealing with the Trust. A Trustee shall be liable to
the Trust and to any Shareholder solely for his or her own willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of Trustee, and shall not be liable for errors of judgment
or mistakes of fact or law. The Trustees may take advice of counsel or other
experts with respect to the meaning and operation of this Declaration of Trust,
and shall be under no liability for any act or omission in accordance with such
advice nor for failing to follow such
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advice. The Trustees shall not be required to give any bond as such, nor any
surety if a bond is required.
Section 9.3. Liability of Third Persons Dealing with Trustees.
No Person dealing with the Trustees shall be bound to make any inquiry
concerning the validity of any transaction made or to be made by the Trustees or
to see to the application of any payments made or property transferred to the
Trust or upon its order.
Section 9.4. Insurance.
The Trustees shall be entitled and empowered to the fullest extent permitted by
law to purchase with Trust assets insurance for liability and for all expenses
reasonably incurred or paid or expected to be paid by a Trustee or officer in
connection with any claim, action, suit or proceeding in which he or she becomes
involved by virtue of his or her capacity or former capacity with the Trust.
ARTICLE X
TERMINATION AND MERGER
Section 10.1. Termination of Trust or Portfolio.
Unless terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be terminated at any time by the Trustees upon
sixty (60) days prior written notice to the Shareholders. Any Portfolio may be
terminated at any time by the Trustees upon sixty (60) days prior written notice
to the Shareholders of that Portfolio.
Upon termination of the Trust (or any Portfolio, as the case may
be), after paying or otherwise providing for all charges, taxes, expenses and
liabilities held, severally, with respect to each Portfolio (or the applicable
Portfolio, as the case may be), whether due or accrued or anticipated as may be
determined by the Trustees, the Trust shall, in accordance with such procedures
as the Trustees consider appropriate, reduce the remaining assets held,
severally, with respect to each Portfolio (or the applicable Portfolio, as the
case may be), to distributable form in cash or shares or other securities, and
any combination thereof, and distribute the proceeds held with respect to each
Portfolio (or the applicable Portfolio, as the case may be), (i) to the
Shareholders of a Portfolio not taxable as partnerships for federal income tax
purposes, as a Portfolio], pro rata according to the number of Shares of that
Portfolio held by the several Shareholders on the date of termination and, (ii)
to the Shareholders of a Portfolio, as a Portfolio, in accordance with the
positive Book Capital Account balances of the Shareholders.
Section 10.2. Merger and Consolidation.
The Trustees may cause (i) the Trust or one or more of its Portfolio to the
extent consistent with applicable law to be merged into or consolidated with
another Trust, Portfolio or Person, (ii) the Shares of the Trust or any
Portfolio to be converted into beneficial interests in another business trust
(or Portfolio thereof), (iii) the Shares to be exchanged for assets or property
under or pursuant to any state or federal statute to the extent permitted by law
or (iv) a sale of assets of the Trust or one or more of its Portfolio. Such
merger or consolidation, Share conversion, Share
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exchange or sale of assets must be authorized by vote as provided in Article VII
herein; provided that in all respects not governed by statute or applicable law,
the Trustees shall have power to prescribe the procedure necessary or
appropriate to accomplish a sale of assets, Share exchange, merger or
consolidation including the power to create one or more separate business 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 Portfolio into beneficial interests in such separate business trust
or trusts (or Portfolio thereof).
ARTICLE XI
MISCELLANEOUS
Section 11.1. Amendments.
The Trustees may amend this Declaration of Trust by making an amendment to this
Agreement or to Schedule A hereto, an agreement supplemental hereto, or an
amended and restated trust instrument. Any such amendment, having been approved
by a majority of the Trustees then holding office, shall become effective,
unless otherwise provided by such Trustees, upon execution by a duly authorized
officer of the Trust. The Certificate of Trust of the Trust may be restated
and/or amended by a similar procedure, and any such restatement and/or amendment
shall be effective immediately upon filing with the Office of the Secretary of
State of the State of Delaware or upon such future date as may be stated
therein.
Section 11.2. Filing of Copies.
The original or a copy of this instrument and of each restatement and/or
amendment hereto shall be kept at the office of the Trust where it may be
inspected by any Shareholder. Anyone dealing with the Trust may rely on a
certificate by an officer of the Trust as to whether or not any such
restatements and/or amendments have been made and as to any matters in
connection with the Trust hereunder; and, with the same effect as if it were the
original, may rely on a copy certified by an officer of the Trust to be a copy
of this instrument or of any such restatements and/or amendments.
Section 11.3. References and Headings.
In this instrument and in any such restatements and/or amendment, references to
this instrument, and all expressions like "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.
Section 11.4. Applicable Law.
This Agreement and 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 Delaware Act. The Trust shall be a Delaware business trust pursuant to
the Delaware Act, and without limiting the
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provisions hereof, the Trust may exercise all powers which are ordinarily
exercised by such a business trust.
Section 11.5. Provisions in Conflict with Law or Regulations.
11.5.1. The provisions of the Declaration of Trust are severable,
and if the Trustees shall determine, with the advice of counsel, that any of
such provisions is in conflict with the 1940 Act, the regulated investment
company provisions of the Internal Revenue Code or with other applicable laws
and regulations, the conflicting provision shall be deemed never to have
constituted a part of the Declaration of Trust; provided, however, that such
determination shall not affect any of the remaining provisions of the
Declaration of Trust or render invalid or improper any action taken or omitted
prior to such determination.
11.5.2. If any provision of the Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such jurisdiction and
shall not in any manner affect such provision in any other jurisdiction or any
other provision of the Declaration of Trust in any jurisdiction.
Section 11.6. Business Trust Only.
It is the intention of the Trustees to create a business trust pursuant to the
Delaware Act, and thereby to create only the relationship of trustee and
beneficial owners within the meaning of such act between the Trustees and each
Shareholder. Except to the extent provided by resolution of the Trustees
establishing a Portfolio intended to be classified as a partnership for federal
income tax purposes, it is not the intention of the Trustees to create a general
partnership, limited partnership, joint stock association, corporation,
bailment, joint venture, or any form of legal relationship other than a business
trust pursuant to such act, and except as so provided in such resolution,
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 11.7. Counterparts.
This instrument may be executed in any number of counterparts, each of which
shall be deemed an original and all of which, when taken together, shall be
deemed to constitute a single document.
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IN WITNESS WHEREOF, the Trustees named below do hereby make and
enter into this Declaration of Trust of WT Mutual Fund as of March 15, 2002.
/s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxx Xxxxxxx
----------------------------------
Xxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxxxx X. Xxxxxxxx
/s/ Xxxxx Xxxxx, Xx.
----------------------------------
Xxxxx Xxxxx, Xx.
/s/ Xxxxxxx X. Xxxxx, XX
----------------------------------
Xxxxxxx X. Xxxxx, XX
/s/ Xxxx X. Xxxxxxxx
----------------------------------
Xxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxxx
----------------------------------
Xxxx X. Xxxxxxx
SCHEDULE A
TO
AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST
OF
WT MUTUAL FUND
SCHEDULE OF PORTFOLIOS AND CLASSES
PORTFOLIO CLASS OF SHARES
CRM Large Cap Value Fund Institutional Class
Investor Class
Retail Class
CRM Mid Cap Value Fund Institutional Class
Investor Class
Retail Class
CRM Small Cap Value Fund Institutional Class
Investor Class
Retail Class
Roxbury Balanced Fund Class A Shares
Class B Shares
Class C Shares
Roxbury Large Cap Growth Fund Class A Shares
Class B Shares
Class C Shares
Roxbury Mid Cap Fund Class A Shares
Class B Shares
Class C Shares
Roxbury Science and Technology Fund Class A Shares
Class B Shares
Class C Shares
Roxbury Socially Responsible Fund Class A Shares
Class B Shares
Class C Shares
Wilmington Balanced Portfolio Institutional Class
Investor Class
Service Class
Wilmington Intermediate Bond Portfolio Institutional Class
Investor Class
Wilmington International Multi-Manger Institutional Class
Portfolio Investor Class
S-1
PORTFOLIO CLASS OF SHARES
Wilmington Large Cap Core Portfolio Institutional Class
Investor Class
Wilmington Large Cap Growth Portfolio Institutional Class
Investor Class
Wilmington Mid Cap Value Portfolio Institutional Class
Investor Class
Wilmington Municipal Bond Portfolio Institutional Class
Investor Class
Wilmington Premier Money Market Institutional Class
Portfolio Service Class
Wilmington Prime Money Market Portfolio Investor Class
Service Class
Wilmington Short/Intermediate Bond Institutional Class
Portfolio Investor Class
Wilmington Small Cap Core Portfolio Institutional Class
Investor Class
Wilmington Small Cap Growth Portfolio Institutional Class
Investor Class
Wilmington Tax-Exempt Portfolio Investor Class
Service Class
Wilmington U.S. Government Portfolio Investor Class
Service Class
S-2
