AGREEMENT AND DECLARATION OF TRUST
OF
WT MUTUAL FUND II
a Delaware Business Trust
Effective ___________, 2001
TABLE OF CONTENTS
PAGE
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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......................3
Section 3.3 Actions Affecting Portfolios.................................4
Section 3.4 Relative Rights and Preferences..............................4
Section 3.5 Additional Rights and Preferences of Class B Shares..........6
Section 3.6 Ownership of Shares..........................................7
Section 3.7 Investments in the Trust.....................................7
Section 3.8 Status of Shares and Limitation of Personal Liability........8
Section 3.9 Portfolio Established as a Partnership.......................8
ARTICLE IV The Board of Trustees...............................................8
Section 4.1 Number.......................................................8
Section 4.2 Election and Tenure..........................................8
Section 4.3 Effect of Death, Resignation, etc. of a Trustee.............9
Section 4.4 Trustee Compensation.........................................9
ARTICLE V Power of the Trustees................................................9
Section 5.1 Management of the Trust......................................9
Section 5.2 Action by Written Consent...................................10
Section 5.3 Powers of the Trustees......................................10
Section 5.4 Payment of Expenses by the Trust............................13
Section 5.5 Ownership of Assets of the Trust............................13
Section 5.6 Issuance and Repurchase of Shares...........................13
Section 5.7 Power of Board of Trustees to Change Provisions
Relating to Shares..........................................14
ARTICLE VI Service Contracts..................................................14
Section 6.1 Investment Manager..........................................14
Section 6.2 Principal Underwriter.......................................14
Section 6.3 Other Service Contracts.....................................14
Section 6.4 Validity of Contracts.......................................15
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PAGE
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ARTICLE VII Shareholders' Voting Powers and Meetings..........................15
Section 7.1 Voting Powers...............................................15
Section 7.2 Voting Power and Meetings...................................15
Section 7.3 Quorum and Required Vote....................................16
Section 7.4 Action by Written Consent...................................16
Section 7.5 Record Dates................................................16
ARTICLE VIII Net Asset Value, Distributions, and Redemptions..................16
Section 8.1 Determination of Net Asset Value, Net Income,
and Distributions...........................................16
Section 8.2 Redemptions and Repurchases.................................17
Section 8.3 Redemptions at the Option of the Trust......................17
Section 8.4 Transfer of Shares..........................................18
ARTICLE IX Limitation of Liability............................................18
Section 9.1 Indemnification and Limitation of Liability.................18
Section 9.2 Trustee's Good Faith Action, Expert Advice, No Bond
or Surety...................................................18
Section 9.3 Liability of Third Persons Dealing with Trustees............18
Section 9.4 Insurance...................................................18
ARTICLE X Termination and Merger..............................................19
Section 10.1 Termination of Trust or Portfolio...........................19
Section 10.3 Merger and Consolidation....................................19
ARTICLE XI Miscellaneous......................................................19
Section 11.1 Amendments..................................................19
Section 11.2 Filing of Copies............................................20
Section 11.3 References and Headings.....................................20
Section 11.4 Applicable Law..............................................20
Section 11.5 Provisions in Conflict with Law or Regulations..............20
Section 11.6 Business Trust Only.........................................20
Section 11.7 Counterparts................................................21
Schedule A - Schedule of Portfolios and Classes
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AGREEMENT AND DECLARATION OF TRUST
OF
WT MUTUAL FUND II
The Agreement and Declaration of Trust of WT Mutual Fund II (the
"Trust") is entered into as of __________, 2001, 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.
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 II"
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.
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.
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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. 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 Series that are
established by the Trustees to be taxable as a separate partnership for federal
income tax purposes shall have no par value. The Trustees may, from time to
time, (i) authorize the division of Shares into separate series, each of which
constitutes a Portfolio and (ii) the further division of Shares of any Portfolio
into one or more separate and distinct classes of Shares, each of which
constitutes a Class. The different Portfolios shall be established and
designated, and the variations in the relative rights and preferences as among
the different Portfolios shall be fixed and determined, by the Trustees. If only
one 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. 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.
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
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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 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.
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(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 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
5
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 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 six (6) years
after the end of the calendar month in which a Shareholder's order to purchase
such shares was accepted.
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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 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
7
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.
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.
Section 3.9 PORTFOLIO ESTABLISHED AS A PARTNERSHIP. The Trustees
shall have the authority to create a Portfolio intended to be classified as a
partnership for federal income tax purposes. Pursuant to such authority, the
Trustees may provide that (i) Book Capital Accounts (as defined in any
resolution establishing and designating such Portfolio) are to be determined and
maintained for each Shareholder in accordance with Section 704(b) of the
Internal Revenue Code of 1986, as amended (the "Code") (and any successor
provision thereto) and the Treasury Regulations promulgated thereunder; (ii)
upon liquidation of a Portfolio (or any Shareholder's interest therein),
liquidating distributions shall be made in accordance with the positive Book
Capital Account balances of the Shareholders; and, (iii) if any Shareholder in
such Portfolio has a deficit balance in his Book Capital Account following the
liquidation of his interest in the Portfolio, such Shareholder is
unconditionally required to restore the amount of such deficit balance to the
Portfolio, or in lieu thereof, the resolution establishing the Portfolio contain
a "qualified income offset" within the meaning of Treasury Regulation
Section 1.704-1(b)(2)(ii)(d).
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
8
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. 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
9
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.
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
10
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 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 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
11
constitute negligence, whether or not the Trust would have the power to
indemnify such Person against liability;
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 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
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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 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
13
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. 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
14
Portfolios. Every such contract shall comply with such terms as may be required
by the Trustees. The Trustees are 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 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 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
15
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. 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.
16
Section 8.2 REDEMPTIONS AND REPURCHASES. 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.
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 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.
17
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 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
18
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, whether or
not the Trust would have the power to indemnify him or her against such
liability under the provisions of this Article.
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.
Section 10.2 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 10.3 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 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
19
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 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
20
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.
[SIGNATURE PAGE FOLLOWS]
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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 this _____ day of
September, 2001.
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Xxxxxx X. Xxxxxxxxx
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SCHEDULE A
to
Agreement and Declaration of Trust
of
WT Mutual Fund II
Schedule of Portfolios and Classes
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PORTFOLIO CLASS OF SHARES
--------------------------------------------------------------------------------
Wilmington Corporate Bond Portfolio Investor Class
Class B
--------------------------------------------------------------------------------
Wilmington Growth and Income Portfolio Investor Class
Class B
--------------------------------------------------------------------------------
Wilmington International Equity Institutional Class
Portfolio Investor Class
Class B
--------------------------------------------------------------------------------
Wilmington New York Tax-Free Bond Investor Class
Portfolio Class B
--------------------------------------------------------------------------------
Wilmington New York Tax-Free Money Investor Class
Market Portfolio
--------------------------------------------------------------------------------
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