TOUCHSTONE VARIABLE SERIES TRUST
AMENDED AND RESTATED
AGREEMENT AND DECLARATION OF TRUST
WHEREAS, Touchstone Variable Series Trust was established pursuant to a
Declaration of Trust dated as of February 7, 1994, as heretofore amended (the
"Original Declaration"), for the investment and reinvestment of funds
contributed thereto;
WHEREAS, the Trustees desire that the beneficial interest in the Trust
assets continue to be divided into transferable Shares of Beneficial Interest
issued in one or more series, as hereinafter provided;
WHEREAS, the Trustees wish to amend and restate the Original Declaration
in its entirety, and hereby certify that this Amended and Restated Declaration
of Trust has been amended and restated in accordance with the provisions of the
Original Declaration;
NOW THEREFORE, the Trustees hereby confirm that all money and property
contributed to the Trust hereunder shall be held and managed in trust for the
benefit of holders, from time to time, of the Shares of Beneficial Interest
issued hereunder and subject to the provisions hereof, and that the Original
Declaration, including all appendices, is amended and restated in its entirety
as follows.
ARTICLE I
NAME AND DEFINITIONS
Section 1.1. Name. The name of the Trust is "Touchstone Variable Series
Trust".
Section 1.2. Definitions. Wherever they are used herein, the following
terms have the following respective meanings:
(a) "By-Laws" means the By-laws referred to in Section 3.9 hereof, as from
time to time amended.
(b) "Commission" has the meaning given that term in the 1940 Act.
(c) "Declaration" means this Amended and Restated Declaration of Trust as
amended from time to time. Reference in this Declaration of Trust to
"Declaration", "hereof", "herein", and "hereunder" shall be deemed to refer to
this Declaration rather than the article or section in which such words appear.
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(d) "Interested Person" has the meaning given that term in the 1940 Act.
(e) "Majority Shareholder Vote" has the same meaning as the phrase "vote
of a majority of the-outstanding voting securities" as defined in the 1940 Act,
except that such term may be used herein with respect to the Shares of the Trust
as a whole or the Shares of any particular series or class, as the context may
require, and except that each Share shall have one vote for each dollar of net
asset value as provided in Article V hereof.
(f) "1940 Act" means the Investment Company Act of 1940 and the Rules and
Regulations thereunder, as amended from time to time, and as such Act or the
Rules and Regulations thereunder may apply to the Trust or any series or class
pursuant to any exemptive order or similar relief or interpretation issued by
the Commission under such Act.
(g) "Person" means and includes individuals, corporations, limited
liability companies, partnerships, trusts, associations, joint ventures and
other entities, whether or not legal entities, and governments and agencies and
political subdivisions thereof, whether domestic or foreign.
(h) "Shareholder" means a record owner of outstanding Shares.
(i) "Shares" means the Shares of Beneficial Interest into which the
beneficial interest in the Trust shall be divided from time to time or, when
used in relation to any particular series or class of Shares established by the
Trustees pursuant to Article V hereof, transferable units into which such series
or class of Shares shall be divided from time to time in accordance with the
terms hereof. The term "Shares" includes fractions of Shares as well as whole
Shares.
(j) "Trust" means the trust created hereby.
(k) "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 or the Trustees, including, without limitation, any and all property
allocated or belonging to any series or class of Shares pursuant to Article V
hereof.
(l) "Trustees" means the persons who have signed the Declaration, so long
as they shall continue in office in accordance with the terms hereof, and all
other persons who may from time to time be duly elected or appointed, qualified
and serving as 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.
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ARTICLE II
TRUSTEES
Section 2.1. Number of Trustees. The number of Trustees shall be such
number as shall be fixed from time to time by a majority of the Trustees,
provided, however that the number of Trustees shall in no event be less than
two.
Section 2.2. Term of Office of Trustees. A Trustee may be elected either,
at the discretion of the Trustees, by the Shareholders of the Trust or, as
provided in the Declaration and subject to the limitations of the 1940 Act, by
the Trustees. Subject to all applicable provisions of the 1940 Act, a Trustee
shall hold office during the lifetime of this Trust and until its termination as
hereinafter provided or, if sooner, until his or her death or the election and
qualification of his or her successor; except that:
(a) any Trustee may resign his or her trust by an instrument in writing
signed by that Trustee and delivered to the other Trustees or to any officer of
the Trust, which shall take effect upon such delivery or upon such later date as
is specified therein; except to the extent required by the 1940 Act or under
circumstances which would justify his or her removal for cause, no person
ceasing to be a Trustee as a result of his or her death, resignation,
retirement, removal or incapacity (nor the estate of any such person) shall be
required to make an accounting to the Shareholders or remaining Trustees upon
such cessation;
(b) any Trustee may be removed, at any time, with or without cause, by
written instrument signed by at least two-thirds of the remaining Trustees,
specifying the date when such removal shall become effective;
(c) any Trustee who has attained a mandatory retirement age or who has
served to the end of his or her term of office, in each case established
pursuant to any written policy adopted from time to time by at least two-thirds
of the Trustees, shall, automatically and without action of such Trustee or the
remaining Trustees, be deemed to have retired in accordance with the terms of
such policy, effective as of the date determined in accordance with such policy;
(d) any Trustee who has become incapacitated by illness or injury, as
determined by a majority of the other Trustees in their reasonable judgment, may
be retired by written instrument signed by a majority of the other Trustees,
specifying the date of his or her retirement; and
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(e) a Trustee may be removed at any time, with or without cause, by a vote
of two-thirds of the voting power of the outstanding Shares of the Trust.
Upon the resignation, retirement or removal of a Trustee, or his or her
otherwise ceasing to be a Trustee, that individual shall execute and deliver
such documents as the remaining Trustees shall require for the purpose of
conveying to the Trust or the remaining Trustees any Trust Property held in the
name of the resigning, retiring or removed Trustee. Upon the incapacity or death
of any Trustee, that Trustee's legal representative shall execute and deliver on
his or her behalf such documents as the remaining Trustees shall require as
provided in the preceding sentence.
Notwithstanding the foregoing, upon the resignation, retirement, removal
or death of a Trustee, such Trustee shall automatically cease to have any right,
title or interest in any of the Trust Property, and the right, title and
interest 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.
Section 2.3. Resignation and Appointment of Trustees. In case of the
declination, death, resignation, retirement or removal of any of the Trustees,
or in case a vacancy shall, by reason of an increase in number of Trustees, or
for any other reason, exist, a majority of the remaining Trustees may fill such
vacancy by appointing such other individual as they in their discretion shall
see fit. Any such appointment shall not become effective, however, until the
person appointed shall have accepted in writing such appointment and agreed in
writing to be bound by the terms of the Declaration. An appointment of a Trustee
may be made by the Trustees then in office in anticipation of a vacancy to occur
by reason of retirement, resignation, removal or increase in number of Trustees
effective at a later date, provided that said appointment shall become effective
only at or after the effective date of said retirement, resignation, removal or
increase in number of Trustees. The power of appointment is subject to all
applicable provisions of the 1940 Act.
Section 2.4. Vacancies. The death, declination, resignation, retirement,
removal or incapacity of the Trustees, or any of them, shall not operate to
annul the Trust or to revoke any existing agency created pursuant to the terms
of the Declaration. Whenever a vacancy in the number of Trustees shall occur,
until such vacancy is filled as provided in Section 2.3, or while any Trustee is
incapacitated, the other 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 the Declaration, and only such other Trustees shall
be counted for the purposes of the existence of a quorum or the taking of any
action to be taken by the Trustees. A written instrument certifying the
existence of such vacancy or incapacity signed by a majority of the Trustees
shall be conclusive evidence of the existence thereof.
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Section 2.5. Delegation of Power to Other Trustees. Any Trustee may, by
power of attorney, delegate his power for a period not exceeding six months at
any one time to any other Trustee or Trustees; provided that in no case shall
fewer than two Trustees personally exercise the powers granted to the Trustees
under the Declaration except as otherwise expressly provided herein.
ARTICLE III
POWERS OF TRUSTEES
Section 3.1. General. The Trustees shall have exclusive and absolute
control over the Trust Property and over the business of the Trust to the same
extent as if the Trustees were the sole owners of the Trust Property and
business in their own right, but with such powers of delegation as may be
permitted by the Declaration. 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 Commonwealth of Massachusetts,
in any and all states of the United States of America, in the District of
Columbia, and in any and all commonwealths, territories, dependencies, colonies,
possessions, agencies or instrumentalities of the United States of America and
of foreign governments, and to do all such other things and execute all such
instruments as the Trustees deem necessary, proper or desirable 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 the Declaration, the presumption shall be in favor of a grant of
power to the Trustees.
The Trust shall be of the type commonly called a Massachusetts business
trust, and, without limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a trust.
The enumeration of any specific power herein shall not be construed as
limiting the aforesaid power or any other power of the Trustees hereunder. Such
powers of the Trustees may be exercised without order of or resort to any court.
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Section 3.2. Investments.
(a) The Trustees shall have the power:
(i) to conduct, operate and carry on the business of an investment
company;
(ii) to subscribe for, or invest and reinvest cash and other
property in, securities of every nature and kind, U.S. and foreign
currencies, any form of gold or other precious metal, commodity contracts,
any form of option contract, contracts for the future acquisition or
delivery of fixed income or other securities, derivative instruments of
every kind, "when-issued" or standby contracts, and all types of
obligations or financial instruments of any kind and to hold cash or other
property uninvested;
(iii) from time to time, to change the investments in which the
assets of the Trust are invested;
(iv) to exercise any and all rights, powers and privileges of
ownership or interest in respect of any and all of the Trust's 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 investments;
(v) to definitively interpret the investment objective, policies and
limitations of the Trust or any series;
(vi) 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; and
(vii) to carry on any other business in connection with or
incidental to any of the foregoing powers, to do everything necessary,
proper or desirable for the accomplishment of any purpose or the
attainment of any object or the furtherance of any power hereinbefore set
forth, and to do every other act or thing incidental or appurtenant to or
connected with the aforesaid purposes, objects or powers.
(b) The Trustees shall not be limited to investing in securities or
obligations maturing before the possible termination of the Trust, nor shall the
Trustees be limited by any law limiting the investments which may be made by
fiduciaries.
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(c) Notwithstanding any other provision of the Declaration to the
contrary, the Trustees shall have the power in their discretion without any
requirement of approval by Shareholders to either invest all or a portion of the
Trust Property of the Trust or, as applicable, the Trust Property of any series
of the Trust, or sell all or a portion of such Trust Property and invest the
proceeds of such sales, in one or more other investment companies to the extent
not prohibited by the 1940 Act.
Section 3.3. Legal Title. Legal title to all Trust Property shall be
vested in the Trustees as joint tenants 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 or nominee, on such terms as the Trustees may determine. The right,
title and interest of the Trustees in the Trust Property shall vest
automatically in each Person who may hereafter become a Trustee. The Trustees
shall have the power to hold any security or property in a form not indicating
any trust, whether in bearer, unregistered or other negotiable form; or either
in its own name or in the name of a custodian or a nominee or nominees, subject
in either case to proper safeguards according to the usual practice of
Massachusetts trust companies or investment companies.
Section 3.4. Issuance and Repurchase of Securities. The Trustees shall
have the power to issue, sell, repurchase, redeem, retire, cancel, acquire,
hold, resell, reissue, dispose of, transfer, and otherwise deal in Shares and,
subject to the provisions set forth in Articles VI, VII and VIII and Section 5.9
hereof, to apply to any such repurchase, redemption, retirement, cancellation or
acquisition of Shares any funds of the Trust or other Trust Property, whether
capital or surplus or otherwise.
Section 3.5. Borrowing Money; Lending Trust Property. The Trustees shall
have power to borrow money or otherwise obtain credit and to issue notes or
other instruments in connection therewith and to secure the same by mortgaging,
pledging or otherwise subjecting as security the Trust Property, to endorse,
guarantee, or undertake the performance of any obligation, contract or
engagement of any other Person and to lend Trust Property.
Section 3.6. Delegation. The Trustees shall have power to delegate from
time to time to such of their number or to officers, employees, any investment
adviser, distributor, custodian, agent or independent contractor of the Trust
the doing of such things and the execution of such instruments either in the
name of the Trust or the names of the Trustees or otherwise as the Trustees may
deem appropriate or expedient.
Section 3.7. Collection and Payment. Subject to Section 5.9 hereof, the
Trustees shall have power to collect all property due to the Trust; to pay all
claims, including taxes, against the Trust Property; to pay, prosecute, defend,
compromise, arbitrate or abandon or otherwise adjust any claims relating to the
Trust Property; to foreclose any security interest securing any obligations, by
virtue of which any property is owed to the Trust; and to enter into releases,
agreements and other instruments.
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Section 3.8. Expenses. Subject to Section 5.9 hereof, the Trustees shall
have the power to incur and pay any expenses which in the opinion of the
Trustees are necessary or incidental to carry out any of the purposes of the
Declaration, and to pay reasonable compensation from the funds of the Trust to
themselves as Trustees. The Trustees shall fix the compensation of all officers,
employees and Trustees. The Trustees shall be reimbursed from the Trust estate
or the assets belonging to the appropriate series for their expenses and
disbursements and for all losses and liabilities by them incurred in
administering the Trust; and for the payment of such expenses, disbursements,
losses and liabilities, the Trustees shall have a lien on the assets belonging
to the appropriate series prior to any rights of interests of the Shareholders
thereto.
Section 3.9. Manner of Acting; By-Laws. Except as otherwise provided
herein, in the 1940 Act or in the By-Laws, any action to be taken by the
Trustees may be taken by a majority of the Trustees present at a meeting of
Trustees at which a quorum is present, including any meeting held by means of a
conference telephone circuit or similar communications equipment by means of
which all persons participating in the meeting can hear each other, or by
written consents of a majority of the Trustees. The Trustees may adopt By-Laws
not inconsistent with the Declaration to provide for the conduct of the business
of the Trust and may amend or repeal such By-Laws at any time to the extent that
such By-Laws do not reserve that right to the Shareholders.
Section 3.10. Certain Contracts. Subject to compliance with the provisions
of the 1940 Act, but notwithstanding any limitations of present and future law
or custom in regard to delegation of powers by trustees generally, the Trustees
may, at any time and from time to time and without limiting the generality of
their powers and authority otherwise set forth herein, enter into one or more
contracts with any one or more corporations, trusts, associations, partnerships,
limited partnerships, other type of organizations, or individuals ("Contracting
Party") to provide for the performance and assumption of some or all of any
services, duties and responsibilities to, for or of the Trust or any series or
class thereof and/or the Trustees, and to provide for the performance and
assumption of such other services, duties and responsibilities.
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The same person may be the Contracting Party for some or all of the
services, duties and responsibilities to, for and of the Trust or any series or
class thereof and/or the Trustees, and the contracts with respect thereto may
contain such terms that are not inconsistent with the 1940 Act as the Trustees
may determine. Nothing herein shall preclude, prevent or limit the Trust or, at
the discretion of the Trustees, a Contracting Party, from entering into
subcontractual arrangements with respect to services to be rendered hereunder.
Subject to the provisions of the 1940 Act, the fact that:
(i) any of the Shareholders, Trustees or officers of the Trust is a
shareholder, director, officer, partner, trustee, employee, manager,
adviser, principal underwriter or distributor or agent of or for any
Contracting Party, or of or for any parent or affiliate of any Contracting
Party or that the Contracting Party or any parent or affiliate thereof is
a Shareholder or has an interest in the Trust, or that
(ii) any Contracting Party may have a contract providing for the
rendering of any similar services to one or more other corporations,
trusts, associations, partnerships, limited partnerships or other
organizations, or has other business or interests,
shall not affect the validity of any contract for the performance and assumption
of services, duties and responsibilities to, for or of the Trust or any series
or class thereof and/or the Trustees and, subject to applicable laws, shall not
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.
Section 3.11. Miscellaneous Powers. Without limiting the foregoing, the
Trustees shall have the power to:
(a) employ or contract with such Persons as the Trustees may deem
desirable for the transaction of the business of the Trust;
(b) enter into joint ventures, partnerships and any other combinations or
associations;
(c) elect and remove such officers and appoint and terminate such agents
or employees as they consider appropriate, in each case with or without cause,
and appoint and terminate any one or more committees which may exercise some or
all of the power and authority of the Trustees as the Trustees may determine;
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(d) purchase, and pay for out of Trust Property, such insurance as they
may deem necessary, advisable or appropriate for the conduct of the business of
the Trust, including, without limitation, insurance policies insuring the assets
of the Trust and payment of distributions and principal on its portfolio
investments, and insurance policies insuring present and former Shareholders,
administrators, Trustees, officers, employees, agents, investment advisers,
distributors, selected dealers or independent contractors of the Trust against
possible tort liability and against all claims arising by reason of holding any
such position or by reason of any action taken or omitted by any such Person in
such capacity, whether or not constituting negligence, or whether or not the
Trust would have the power to indemnify such Person against such liability;
(e) establish pension, profit-sharing, Share purchase, deferred
compensation, 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;
(f) to the extent permitted by law, indemnify any Person with whom the
Trust has dealings, including any investment adviser, administrator, custodian,
distributor, transfer agent, shareholder servicing agent and dealer, and any
other agent or independent contractor to such extent as the Trustees shall
determine;
(g) guarantee indebtedness or contractual obligations of others;
(h) determine and change the fiscal year of the Trust or any series
thereof and the method by which its accounts shall be kept; and
(i) adopt a seal for the Trust, provided, that the absence of such seal
shall not impair the validity of any instrument executed on behalf of the Trust.
ARTICLE IV
LIMITATIONS OF LIABILITY OF SHAREHOLDERS,
TRUSTEES AND OTHERS
Section 4.1. No Personal Liability of Shareholders. No Shareholder or
former Shareholder shall be subject to any personal liability whatsoever to any
Person in connection with Trust Property or the acts, obligations or affairs of
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the Trust. No Trustee, officer or employee of the Trust shall be subject to any
personal liability whatsoever to any Person, other than the Trust or its
Shareholders, in connection with Trust Property or the affairs of the Trust and
all such Persons shall look solely to the Trust Property for satisfaction of
claims of any nature arising in connection with the affairs of the Trust. If any
Shareholder, former Shareholder, Trustee, officer or employee, as such, of the
Trust, is made a party to any suit or proceeding to enforce any such liability,
he shall not, on account thereof, be held to any personal liability. The Trust
shall indemnify and hold each Shareholder and former Shareholder harmless from
and against all claims and liabilities to which such Shareholder may become
subject by reason of his or her being or having been a Shareholder, and shall
reimburse such Shareholder for all legal and other expenses reasonably incurred
by him or her in connection with any such claim or liability. The rights
accruing to a Shareholder or former Shareholder under this Section 4.1 shall not
exclude any other right to which such Shareholder may be lawfully entitled, nor
shall anything herein contained restrict the right of the Trust to indemnify or
reimburse a Shareholder or former Shareholder in any appropriate situation even
though not specifically provided herein. The Trust shall, upon request by a
Shareholder or former Shareholder, assume the defense of any claim made against
such Shareholder for any act or obligation of the Trust and satisfy any judgment
thereon from the assets of the Trust. Notwithstanding any other provision of the
Declaration to the contrary, no Trust Property shall be used to indemnify or
reimburse any Shareholder or former Shareholder of any Shares of any series
other than Trust Property allocated or belonging to such series.
Section 4.2. Non-Liability of Trustees and Others. No Trustee, officer or
employee of the Trust shall be liable to the Trust or to any Shareholder,
Trustee, officer, employee, or agent thereof for any action or failure to act
(including without limitation the failure to compel in any way any former or
acting Trustee to redress any breach of trust), or for any error of judgment or
mistake of fact or law, except for his own bad faith, willful misfeasance, gross
negligence or reckless disregard of his duties.
Section 4.3. Mandatory Indemnification.
(a) Subject to the exceptions and limitations contained in paragraph (b)
below:
(i) every person who is or has been a Trustee or officer of the
Trust (hereinafter referred to as a "Covered Person") shall be indemnified
by the Trust, to the fullest extent permitted by law (including the 0000
Xxx) as currently in effect or as hereafter amended, against all liability
and against all expenses reasonably incurred or paid by him or her in
connection with any claim, action, suit or proceeding in which that
individual becomes involved as a party or otherwise by virtue of being or
having been a Trustee or officer and against amounts paid or incurred by
that individual in the settlement thereof;
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(ii) the words "claim," "action," "suit" or "proceeding" shall apply
to all claims, actions, suits or proceedings (civil, criminal,
administrative or other, including appeals), actual or threatened; and the
words "liability" and "expenses" shall include, without limitation,
attorneys' fees, costs, judgments, amounts paid in settlement or
compromise, fines, penalties and other liabilities.
(b) No indemnification shall be provided hereunder to a Covered Person:
(i) against any liability to the Trust or the Shareholders by reason
of a final adjudication by the court or other body before which the
proceeding was brought that the Covered Person engaged in willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of that individual's office;
(ii) with respect to any matter as to which the Covered Person shall
have been finally adjudicated not to have acted in good faith in the
reasonable belief that that individual's action was in the best interest
of the Trust; or
(iii) in the event of a settlement involving a payment by a Trustee
or officer or other disposition not involving a final adjudication as
provided in paragraph (b)(i) or (b)(ii) above resulting in a payment by a
Covered Person, unless there has been either a determination that such
Covered Person did not engage in willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of
that individual's office by the court or other body approving the
settlement or other disposition or a reasonable determination, based upon
a review of readily available facts (as opposed to a full trial-type
inquiry) that that individual did not engage in such conduct:
(A) by vote of a majority of the Disinterested Trustees (as
defined below) acting on the matter (provided that a majority of the
Disinterested Trustees then in office act on the matter); or
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(B) by written opinion of legal counsel chosen by the Trustees
and determined by them in their reasonable judgment to be
independent.
(c) Subject to the provisions of the 1940 Act, the Trust may maintain
insurance for the protection of the Trust Property, its present or former
Shareholders, Trustees, officers, employees, independent contractors and agents
in such amount as the Trustees shall deem adequate to cover possible tort
liability (whether or not the Trust would have the power to indemnify such
Persons against such liability), and such other insurance as the Trustees in
their sole judgment shall deem advisable.
(d) The rights of indemnification herein provided shall be severable,
shall not affect any other rights to which any Covered Person may now or
hereafter be entitled, shall continue as to a person who has ceased to be a
Covered Person and shall inure to the benefit of the heirs, executors and
administrators of such person. Nothing contained herein shall affect any rights
to indemnification to which personnel, including Covered Persons, may be
entitled by contract or otherwise under law.
(e) Expenses of preparation and presentation of a defense to any claim,
action, suit, or proceeding of the character described in paragraph (a) of this
Section 4.3 shall be advanced by the Trust prior to final disposition thereof
upon receipt of an undertaking by or on behalf of the Covered Person to repay
such amount if it is ultimately determined that the Covered Person is not
entitled to indemnification under this Section 4.3, provided that either:
(i) such undertaking is secured by a surety bond or some other
appropriate security or the Trust shall be insured against losses arising
out of any such advances; or
(ii) a majority of the Disinterested Trustees acting on the matter
(provided that a majority of the Disinterested Trustees then in office act
on the matter) or legal counsel selected as provided in Section
4.3(b)(iii)(B) above in a written opinion, shall determine, based upon a
review of readily available facts (as opposed to a full trial-type
inquiry), that there is reason to believe that the Covered Person
ultimately will be found entitled to indemnification.
As used in this Section 4.3 a "Disinterested Trustee" is one (i) who is
not an "Interested Person" of the Trust (including anyone who has been exempted
from being an "Interested Person" by any rule, regulation or order of the
Commission), and (ii) against whom none of such actions, suits or other
proceedings or another action, suit or other proceeding on the same or similar
grounds is then or had been pending.
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Section 4.4. No Bond Required. No Trustee or officer shall be obligated to
give any bond or other security for the performance of any of his or her duties
hereunder.
Section 4.5. No Duty of Investigation; Notice in Trust Instruments. No
purchaser, lender, shareholder servicing agent, transfer agent or other Person
dealing with the Trustees or any officer, employee or agent of the Trust shall
be bound to make any inquiry concerning the validity of any transaction
purporting to be made by the Trustees or by said officer, employee or agent or
be liable for the application of money or property paid, loaned, or delivered to
or on the order of the Trustees or of said officer, employee or agent. Every
obligation, contract, instrument, certificate, Share, other security of the
Trust or undertaking, and every other act or thing whatsoever executed in
connection with the Trust shall be conclusively presumed to have been executed
or done by the executors thereof only in their capacity as Trustees under the
Declaration or in their capacity as officers, employees or agents of the Trust.
Every written obligation, contract, instrument, certificate, Share, other
security of the Trust or undertaking made or issued by the Trustees or officers
shall recite that the same is executed or made by them not individually, but as
or on behalf of Trustees under the Declaration, and that the obligations of any
such instrument are not binding upon any of the Trustees, officers or
Shareholders individually, but bind only the Trust estate, and may contain any
further recital deemed appropriate, but the omission of such recital shall not
operate to bind any of the Trustees, officers or Shareholders individually.
Section 4.6. Binding Action; Reliance on Experts. The exercise in good
faith by the Trustees or the officers of the Trust of their powers and
discretions hereunder shall be binding upon everyone interested. The Trustees or
the officers of the Trust shall not be liable for errors of judgment or mistakes
of fact or law. Each Trustee and officer or employee of the Trust shall, in the
performance of his or her duties, be under no liability and fully and completely
justified and protected with regard to any act or any failure to act resulting
from reliance in good faith upon the books of account or other records of the
Trust, upon advice of counsel, or upon reports made to the Trust by any of its
officers or employees or by any investment adviser, distributor, transfer agent,
custodian, shareholder servicing agent, selected dealers, accountants,
appraisers or other experts or consultants selected with reasonable care by the
Trustees, officers or employees of the Trust, regardless of whether such counsel
or expert may also be a Trustee.
Section 4.7. Derivative Actions. No Shareholder shall have the right to
bring or maintain any court action, proceeding or claim on behalf of the Trust
or any series or class thereof without first making demand on the Trustees
requesting the Trustees to bring or maintain such action, proceeding or claim.
Such demand shall be excused only when the plaintiff makes a specific showing
that irreparable injury to the Trust or any series or class thereof would
otherwise result, or if a majority of the Trustees, or a majority of any
committee established to consider the merits of such action, has a personal
financial interest in the action at issue. A Trustee shall not be deemed to have
a personal financial interest in an action or otherwise be disqualified from
ruling on a Shareholder demand by virtue of the fact that such Trustee receives
remuneration from his or her service on the Board of Trustees of the Trust or on
the boards of one or more investment companies with the same or an affiliated
investment adviser or underwriter, or the amount of such remuneration.
15
Such demand shall be mailed to the Secretary of the Trust at the Trust's
principal office and shall set forth in reasonable detail the nature of the
proposed court action, proceeding or claim and the essential facts relied upon
by the Shareholder to support the allegations made in the demand. The Trustees
shall consider such demand within 45 days of its receipt by the Trust. In their
sole discretion, the Trustees may submit the matter to a vote of Shareholders of
the Trust or any series or class thereof, as appropriate. Any decision by the
Trustees to bring, maintain or settle (or not to bring, maintain or settle) such
court action, proceeding or claim, or to submit the matter to a vote of
Shareholders, shall be made by the Trustees in their business judgment and shall
be binding upon the Shareholders. Any decision by the Trustees to bring or
maintain a court action, proceeding or suit on behalf of the Trust or any series
or class thereof shall be subject to the right of the Shareholders under Article
V of the Declaration to vote on whether or not such court action, proceeding or
suit should or should not be brought or maintained.
ARTICLE V
SHARES OF BENEFICIAL INTEREST
Section 5.1. Beneficial Interest. The interest of the beneficiaries
hereunder may be divided into transferable Shares of Beneficial Interest (with
or without par value), which may be divided into one or more series and classes
as provided herein. The number of Shares authorized hereunder is unlimited. All
Shares issued hereunder including, without limitation, Shares issued in
connection with a dividend in Shares or a split of Shares, shall be fully paid
and non-assessable.
Section 5.2. Rights of Shareholders. The ownership of the Trust Property
of every description and the right to conduct any business hereinbefore
described are vested exclusively in the Trustees, and the Shareholders shall
have no interest therein other than the beneficial interest conferred by their
Shares, and they shall have no right to call for any partition or division of
any property, profits, rights or interests of the Trust nor can they be called
upon to assume any losses of the Trust or suffer an assessment of any kind by
virtue of their ownership of Shares. The Shares shall be personal property
giving only the rights specifically set forth in the Declaration. The Shares
shall not entitle the holder to preference, preemptive, appraisal, conversion or
exchange rights, except as the Trustees may determine with respect to any series
or class of Shares. Every Shareholder by virtue of having become a Shareholder
shall be held to have expressly assented and agreed to the terms hereof and to
have become a party hereto. The death of a Shareholder during the continuance of
the Trust shall not operate to terminate the Trust nor entitle the
representative of any deceased Shareholder to an accounting or to take any
action in court or elsewhere against the Trust or the Trustees, but only to the
rights of said decedent under this Trust.
16
Section 5.3. Trust Only. It is not the intention of the Trustees to create
a general partnership, limited partnership, joint stock association,
corporation, bailment or any form of legal relationship other than a trust.
Nothing in the Declaration shall be construed to make the Shareholders, either
by themselves or with the Trustees, partners or members of a joint stock
association.
Section 5.4. Issuance of Shares. The Trustees, in their discretion may,
from time to time without vote of the Shareholders, issue Shares (including
fractional shares), in addition to the then issued and outstanding Shares and
Shares held in the treasury, to such party or parties and for such amount and
type of consideration (or for no consideration if pursuant to a share dividend
or a share split), including cash or property, at such time or times, and on
such terms as the Trustees may deem best, and may in such manner acquire other
assets (including the acquisition of assets subject to, and in connection with,
the assumption of liabilities) and businesses, and may accept or reject or
authorize its distributor or other agents to accept or reject any purchase
order. The Trustees may from time to time divide or combine the Shares of the
Trust or of any series or class into a greater or lesser number without thereby
changing their proportionate beneficial interests in Trust Property allocated or
belonging to such series or class.
Section 5.5. Register of Shares. A register or registers shall be kept at
the principal office of the Trust or at an office of the transfer agent, which
shall contain the names and addresses (which may be addresses for electronic
delivery) of the Shareholders and the number of Shares held by them respectively
and a record of all transfers thereof. Such register or registers shall be
conclusive as to who are the holders of the Shares and who shall be entitled to
receive dividends or distributions or otherwise to exercise or enjoy the rights
of Shareholders. No Shareholder shall be entitled to receive payment of any
dividend or distribution, nor to have notice given to that Shareholder as
provided herein or in the By-Laws, until the Shareholder has given his or her
address to the transfer agent or such other officer or agent of the Trustees as
shall keep the said register for entry thereon. It is not contemplated that
certificates will be issued for the Shares; however, the Trustees, in their
discretion, may authorize, or direct the Trust's officers or agents to
authorize, the issuance of Share certificates, and, if so issued, may be retired
by the Trustees at any time. The Trustees may make, or authorize the Trust's
officers or agents to make, such rules as they consider appropriate for the
issuance of Share certificates, the use of facsimile signatures, the transfer of
Shares, account maintenance and transfer fees and similar matters.
17
Section 5.6. Transfer of Shares. Shares shall be transferable on the
records of the Trust in accordance with policies established by or at the
direction of the Trustees from time to time. Until so transferred, the
Shareholder of record shall be deemed to be the holder of such Shares for all
purposes hereunder.
Section 5.7. Notices. Any and all notices to which any Shareholder may be
entitled and any and all communications shall be deemed duly served or given (i)
if mailed, postage prepaid, addressed to any Shareholder of record at the
Shareholder's last known address as recorded on the register of the Trust, (ii)
if sent by electronic transmission to the Shareholder of record at the
Shareholder's last known address for electronic delivery as recorded on the
register of the Trust, (iii) if mailed or sent by electronic delivery to one or
more members of the Shareholder's household in accordance with applicable law or
regulation, or (iv) if otherwise sent in accordance with applicable law or
regulation.
Section 5.8. Voting Powers. The Shareholders shall have power to vote only
(i) for the election of Trustees when that issue is submitted to Shareholders,
and for the removal of Trustees as provided in Section 2.2 hereof, (ii) with
respect to any action on a contract as to which shareholder approval is required
by the 1940 Act, (iii) with respect to termination of the Trust or any series or
class to the extent and as provided in Section 8.2 hereof, (iv) with respect to
any amendment of the Declaration to the extent and as provided in Section 8.3
hereof, (v) with respect to any merger, reorganization, consolidation or sale of
assets to the extent and as provided in Section 8.4 hereof, (vi) to the same
extent as the stockholders of a Massachusetts business corporation as to whether
or not a court action, proceeding or claim should or should not be brought or
maintained derivatively or as a class action on behalf of the Trust or the
Shareholders, and (vii) with respect to such additional matters relating to the
Trust as may be required by the Declaration, the By-Laws or any registration of
the Trust with the Commission (or any successor agency) or any other regulator
having jurisdiction over the Trust, or as the Trustees may consider necessary or
desirable.
18
A Shareholder of each series or class shall be entitled to one vote for
each dollar of net asset value (number of Shares owned times net asset value per
Share) of such series or class owned by such Shareholder, on each matter on
which such Shareholder is entitled to vote and each fractional dollar amount
shall be entitled to a proportionate fractional vote, except that the Trustees
may, in conjunction with the establishment of any series or class of Shares (but
subject to applicable law), establish conditions under which the several series
or classes shall have separate or no voting rights. Shares held in the treasury
of the Trust shall not be voted.
Except when a larger vote is required by applicable law or by any
provision of the Declaration or the By-Laws, if any, Shares entitled to vote and
representing a majority of the voting power of the Shares voted on the matter in
person or by proxy shall decide any matter and a plurality shall elect a
Trustee, provided that where any provision of law or of the Declaration requires
that the holders of any series or class shall vote as a series or class, then
Shares representing a majority of the voting power of the Shares of that series
or class entitled to vote and voted on the matter shall decide that matter
insofar as that series or class is concerned.
Shares of all series shall be voted in the aggregate on any matter
submitted to a vote of the Shareholders of the Trust except as otherwise
provided in this Declaration or by applicable law. There shall be no cumulative
voting in the election of Trustees. Until Shares are issued and during any
period when no Shares are outstanding, the Trustees may exercise all rights of
Shareholders and may take any action required by law, the Declaration or the
By-Laws to be taken by Shareholders. At any meeting of Shareholders of the Trust
or any series or class of the Trust, a shareholder servicing agent may vote any
shares as to which such shareholder servicing agent is the agent of record and
which are not otherwise represented in person or by proxy at the meeting,
proportionately in accordance with the votes cast by holders of all shares
otherwise represented at the meeting in person or by proxy as to which such
shareholder servicing agent is the agent of record. Any shares so voted by a
shareholder servicing agent will be deemed represented at the meeting for quorum
purposes. The By-Laws may include further provisions for Shareholder votes and
meetings and related matters.
19
Section 5.9. Series of Shares. Shares of the Trust may be divided into
series, the number and relative rights, privileges and preferences of which
shall be established and designated by the Trustees, in their discretion, in
accordance with the terms of this Section 5.9. The Trustees may from time to
time exercise their power to authorize the division of Shares into one or more
series by establishing and designating one or more series of Shares upon and
subject to the following provisions:
(a) All Shares of the different series shall be identical (subject to such
variations between classes of Shares as may be permitted hereunder) except that
there may be such variations between different series as are approved by the
Trustees and as are consistent with applicable law.
(b) The number of authorized Shares and the number of Shares of each
series that may be issued shall be unlimited. The Trustees may classify or
reclassify any Shares of any series, including outstanding Shares, unissued
Shares and Shares previously issued and reacquired, into one or more series that
may be established and designated from time to time. The Trustees may hold as
treasury shares, reissue for such consideration and on such terms as they may
determine, or cancel any Shares of any series reacquired by the Trust at their
discretion from time to time.
(c) All consideration received by the Trust for the issue or sale of
Shares of a particular series, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits, and
proceeds thereof, including any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall
irrevocably belong to that series for all purposes, subject only to the rights
of creditors of such series, and shall be so recorded upon the books of account
of the Trust. In the event that there are any assets, income, earnings, profits
and proceeds thereof, funds, or payments which are not readily identifiable as
belonging to any particular series, the Trustees shall allocate them among any
one or more of the series established and designated from time to time in such
manner and on such basis as they, in their sole discretion, deem fair and
equitable. Each such allocation by the Trustees shall be conclusive and binding
upon the Shareholders of all series for all purposes. No holder of Shares of any
particular series shall have any claim on or right to any assets allocated or
belonging to any other series of Shares. No holder of Shares of any particular
series shall be entitled to participate in a derivative or class action on
behalf of any other series or the Shareholders of any other series.
20
(d) The assets belonging to each particular series shall be charged with
the liabilities of the Trust in respect of that series and all expenses, costs,
charges and reserves attributable to that series, and any general liabilities,
expenses, costs, charges or reserves of the Trust which are not readily
identifiable as belonging to any particular series shall be allocated and
charged by the Trustees to and among any one or more of the series established
and designated from time to time 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 holders of all series for all purposes. Under no
circumstances shall the assets allocated or belonging to any particular series
be charged with liabilities attributable to any other series. All Persons who
have extended credit which has been allocated to a particular series, or who
have a claim or contract which has been allocated to any particular series,
shall look only to the assets of that particular series for payment of such
credit, claim or contract.
(e) The power of the Trustees to invest and reinvest the Trust Property
allocated or belonging to any particular series shall be governed by Section 3.2
hereof unless otherwise provided in the instrument of the Trustees establishing
such series.
(f) Each Share of a series shall represent a beneficial interest in the
net assets allocated or belonging to such series only, and such interest shall
not extend to the assets of the Trust generally. Dividends and distributions on
Shares of a particular series may be paid with such frequency as the Trustees
may determine, which may be monthly or otherwise, pursuant to a standing
resolution or resolutions adopted only once or with such frequency as the
Trustees may determine, to the holders of Shares of that series only, from such
of the income and capital gains, accrued or realized, from the assets belonging
to that series, as the Trustees may determine, after providing for actual and
accrued liabilities belonging to that series. Subject to differences among
classes, all dividends and distributions on Shares of a particular series shall
be distributed pro rata to the holders of that series in proportion to the
number and value of Shares of that series held by such holders at the date and
time of record established for the payment of such dividends or distributions.
Shares of any particular series of the Trust may be redeemed solely out of Trust
Property allocated or belonging to that series. Upon liquidation or termination
of a series of the Trust, Shareholders of such series shall be entitled to
receive a pro rata share of the net assets of such series only.
(g) Notwithstanding any provision hereof to the contrary, on any matter
submitted to a vote of the Shareholders of the Trust, all Shares of all series
and classes then entitled to vote shall be voted in the aggregate, except that
(i) when required by the 1940 Act to be voted by individual series or class,
Shares shall not be voted in the aggregate, and (ii) when the Trustees have
determined that a matter affects only the interests of Shareholders of
particular series or classes of Shares, only Shareholders of such series or
classes of Shares, as applicable, shall be entitled to vote thereon.
21
Section 5.10. Classes of Shares. The Trustees may, in their discretion,
authorize the division of Shares of the Trust (or any series of the Trust) into
one or more classes, the number and relative rights, privileges and preferences
of which shall be established and designated by the Trustees, in their
discretion, in accordance with the terms of the 1940 Act. The number of Shares
of each class that may be issued is unlimited, and the Trustees may classify or
reclassify any Shares of any class, including outstanding Shares, into one or
more classes that may be established and designated from time to time. All
Shares of a class shall be identical with each other and with the Shares of each
other class of the Trust or the same series of the Trust (as applicable), except
for such variations between classes as may be approved by the Trustees and not
prohibited by the 1940 Act.
Section 5.11 Series and Class Designations. The establishment and
designation of any series or class of Shares shall be effective (a) upon the
execution by a majority of the then Trustees of an instrument setting forth such
establishment and designation and the relative rights and preferences of such
series or class, (b) upon the vote of a majority of the Trustees as set forth in
an instrument executed by an officer of the Trust, or (c) at such other time as
the instrument referred to in the foregoing clause (a) or the vote referred to
in the foregoing clause (b) may provide. The Trustees may at any time by an
instrument executed by a majority of their number abolish any series or class
and the establishment and designation thereof. Each instrument referred to in
this paragraph shall have the status of an amendment to the Declaration.
The instrument designating the series of Shares existing as of the date
hereof is attached as Appendix A hereto.
The instrument designating the classes, if any, of Shares of each series
existing as of the date hereof is attached as Appendix B hereto.
22
ARTICLE VI
REDEMPTIONS
Section 6.1. Redemptions. All Shares properly tendered for redemption
shall be redeemable based on a redemption price determined in accordance with
this Section 6.1 and Article VII of the Declaration, less any applicable
redemption fee or sales charge. Redeemed Shares may be resold by the Trust. The
Trustees may from time to time, or may authorize the Trust's officers or agents
to, specify procedures and conditions, not inconsistent with the 1940 Act, in
the Trust's registration statement regarding the redemption of Shares. Shares
shall be redeemed at the net asset value thereof next determined after
acceptance of such request, less any applicable redemption fee or sales charge.
Subject to Section 6.2 hereof, payment for said Shares shall be made to
the Shareholder in cash or in property at such time and in such manner not
inconsistent with the 1940 Act or other applicable law. Except as expressly
determined by the Trustees, Shareholders shall not have the right to have Shares
redeemed in-kind.
Section 6.2. Suspension of Right of Redemption. The Trust may declare a
suspension of the right of redemption or postpone the date of payment of the
redemption proceeds of any series or class as permitted under the 1940 Act. Such
suspension shall take effect at such time as the Trust shall specify, and
thereafter there shall be no right of redemption or payment of the redemption
proceeds until the Trust shall declare the suspension at an end. In the case of
a suspension of the right of redemption, a Shareholder may either withdraw the
Shareholder's request for redemption or receive payment based on the net asset
value existing after the termination of the suspension.
Section 6.3. Redemption of Shares; Disclosure of Holding. The Trustees
may, in their discretion, require the Trust to redeem Shares held by any
Shareholder at any time and for any reason under terms set by the Trustees,
including, but not limited to, (i) the determination of the Trustees that direct
or indirect ownership of Shares of any series has or may become concentrated in
a Shareholder to an extent that would disqualify that series as a regulated
investment company under the Internal Revenue Code of 1986, as amended (or any
successor statute thereto), (ii) the failure of a Shareholder to supply a tax
identification number if required to do so, (iii) the failure of a Shareholder
to pay when due for the purchase of Shares issued to that Shareholder, (iv) the
value of a Shareholder's Shares being less than a minimum amount established
from time to time by the Trustees, (v) failure of a Shareholder to meet or
maintain the qualifications for ownership of a particular class of Shares, or
(vi) the determination by the Trustees or pursuant to policies adopted by the
Trustees that ownership of Shares by a particular Shareholder is not in the best
interests of the remaining Shareholders of the Trust or applicable series or
class. The redemption shall be effected at the redemption price and in the
manner provided in Section 6.1 hereof.
23
The holders of Shares or other securities of the Trust shall upon demand
disclose to the Trust in writing such information with respect to direct and
indirect ownership of Shares or other securities of the Trust as the Trustees
deem necessary to comply with the provisions of the Internal Revenue Code of
1986, as amended (or any successor statute), or to comply with the requirements
of any other law or regulation, and ownership of Shares may be disclosed by the
Trust if so required by law or regulation.
ARTICLE VII
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 vote of the Trustees such bases and
times for determining the per Share net asset value of the Shares or net income,
or the declaration and payment of dividends and distributions, as they may deem
necessary or desirable. The Trustees may determine to maintain the net asset
value per Share of any series at a designated constant dollar amount and in
connection therewith may reduce the number of outstanding Shares of the series
by reducing the number of Shares in the account of each Shareholder on a pro
rata basis, so as to maintain the net asset value per Share of such series at a
constant dollar amount.
ARTICLE VIII
DURATION; TERMINATION OF TRUST;
AMENDMENT; MERGERS, ETC.
Section 8.1. Duration. The Trust shall continue without limitation of time
but subject to the provisions of this Article VIII.
Section 8.2. Termination of Trust.
(a) The Trust may be terminated at any time (i) by a Majority Shareholder
Vote of the holders of its Shares, or (ii) by a majority of the Trustees then in
office. Any series of the Trust, or any class of any series, may be terminated
at any time (i) by a Majority Shareholder Vote of the holders of Shares of that
series or class, or (ii) by a majority of the Trustees then in office. Upon the
termination of the Trust or any series of the Trust:
24
(i) The Trust or series of the Trust shall carry on no business
except for the purpose of winding up its affairs;
(ii) The Trustees shall proceed to wind up the affairs of the Trust
or series of the Trust and all the powers of the Trustees under the
Declaration shall continue until the affairs of the Trust or series of the
Trust shall have been wound up, including the power to fulfill or
discharge the contracts of the Trust or series of the Trust, collect its
assets, sell, convey, assign, exchange, transfer or otherwise dispose of
all or any part of the remaining Trust Property or Trust Property of the
series to one or more Persons at public or private sale for consideration
which may consist in whole or in part of cash, securities or other
property of any kind, discharge or pay its liabilities, and do all other
acts appropriate to liquidate its business; and
(iii) After paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities and refunding
agreements as they deem necessary for their protection, the Trustees may
distribute the remaining Trust Property or Trust Property of the series,
in cash or in kind or partly in cash and partly in kind, among the
Shareholders of the Trust or the series according to their respective
rights.
The foregoing provisions shall also apply mutatis mutandis to the termination of
any class.
(b) After termination of the Trust or series or class and distribution to
the Shareholders of the Trust or series or class as herein provided, a majority
of the Trustees shall execute and lodge among the records of the Trust an
instrument in writing setting forth the fact of such termination, and the
Trustees shall thereupon be discharged from all further liabilities and duties
hereunder with respect to the Trust or series or class, and the rights and
interests of all Shareholders of the Trust or series or class shall thereupon
cease.
Section 8.3. Amendment Procedure.
(a) Except as specifically provided herein, the Trustees may, without any
Shareholder vote, amend or otherwise supplement the Declaration by making an
amendment, a Declaration of Trust supplemental hereto or an amended and restated
Declaration. Without limiting the foregoing power reserved to the Trustees, the
Trustees may, without any Shareholder vote, amend the Declaration to designate
or redesignate series or classes, to change the name or principal office or
agent of the Trust, to supply any omission, to cure any ambiguity, or to cure,
correct or supplement any provision which is internally inconsistent with any
other provision hereof, or if they deem it necessary or advisable, to conform
the Declaration to the requirements of applicable law, including the 1940 Act
and the Internal Revenue Code of 1986, as amended, and applicable regulations,
in order that the Trust may obtain the most favorable treatment thereunder
available to regulated investment companies, but the Trustees shall not be
liable for failing to do so. Shareholders shall have the right to vote on (i)
any amendment that would affect their right to vote granted hereunder; (ii) any
amendment to this Section; (iii) any amendment as may be required by law, or by
the Trust's registration statement, to be approved by Shareholders; and (iv) any
amendment submitted to them by the Trustees. Any amendment on which Shareholders
have the right to vote shall require a Majority Shareholder Vote of the
Shareholders of the Trust, or the written consent, without a meeting, of the
holders of not less than a majority of the voting power of the Shares of the
Trust. Notwithstanding the foregoing, if the Trustees shall determine that any
amendment required or permitted to be submitted to Shareholders would affect
only the interest of Shareholders of particular series or classes of Shares,
then only Shareholders of such series or classes, as applicable, shall be
entitled to vote thereon, and no vote of Shareholders of any other series or
classes shall be required.
25
(b) Nothing contained in the Declaration shall permit the amendment of the
Declaration to impair the exemption from personal liability of the present or
former Shareholders, Trustees, officers, employees and agents of the Trust or to
permit assessments upon Shareholders or former Shareholders. Notwithstanding
anything else herein, any amendment to Section 4.3 shall not limit the rights to
indemnification or insurance provided therein with respect to actions or
omissions of persons entitled to indemnification under such Section prior to
such amendment.
(c) A certificate signed by a majority of the Trustees setting forth an
amendment and reciting that it was duly adopted by the Shareholders (if
applicable) or by the Trustees as aforesaid or a copy of the Declaration, as
amended, and executed by a majority of the Trustees, shall be conclusive
evidence of such amendment when lodged among the records of the Trust.
(d) Notwithstanding any other provision hereof, until such time as Shares
of a particular series or class are first issued the Declaration may be
terminated or amended in any respect as to that series or class, and as to any
series or class in which Shares are not outstanding, by the affirmative vote of
a majority of the Trustees or by an instrument signed by a majority of the
Trustees.
26
Section 8.4. Merger, Consolidation and Sale of Assets. (a) Subject to
applicable law hereof, the Trust or any series or class thereof may merge or
consolidate with any other corporation, association, trust or other
organization, including a series or class of such other organization or of this
Trust (called an acquiring fund), or may sell, lease or exchange all or
substantially all of the Trust Property (or all or substantially all of the
Trust Property allocated or belonging to a particular series or class of the
Trust) including its good will to an acquiring fund, upon such terms and
conditions and for such consideration when and as authorized (i) at any meeting
of Shareholders called for such purpose by a Majority Shareholder Vote of all
series of the Trust voting as a single class if the entire Trust is merging,
consolidating or disposing of assets, by a Majority Shareholder Vote of the
particular series if the entire series is merging, consolidating or disposing of
assets, or by a Majority Shareholder Vote of a class if only that class is
merging, consolidating or disposing of assets, or (ii) by the written consent,
without a meeting, of the Shares representing a majority of the voting power of
the outstanding Shares of all series of the Trust voting as a single class, or
of the particular series or class as described above. Any such merger,
consolidation, sale, lease or exchange shall be deemed for all purposes to have
been accomplished under and pursuant to the statutes of the Commonwealth of
Massachusetts. Such transactions may be effected through share-for-share
exchanges, transfers or sales of assets, in-kind redemptions and purchases,
exchange offers, or any other method approved by the Trustees. Nothing contained
herein shall be construed as requiring approval of Shareholders for any sale of
assets in the ordinary course of the business of the Trust, for any sale of
assets in connection with the termination of the Trust or any series or class
thereof in accordance with Section 8.2 hereof, or for any transaction, whether
deemed a merger, consolidation, reorganization or exchange of shares or
otherwise, whereby the Trust issues shares of one or more series or classes in
connection with the acquisition of assets (including those subject to
liabilities) from any other investment company or similar entity.
(b) Notwithstanding anything in this Section 8.4 to the contrary, the
Trustees may, without the vote or consent of Shareholders, authorize any merger,
consolidation, reorganization or sale of assets otherwise permitted with the
consent of Shareholders pursuant to this Section 8.4, if, immediately prior
thereto, the acquiring fund is not an operating entity. The Trustees shall
provide written notice to affected Shareholders of each transaction pursuant to
this Section 8.4(b).
27
Section 8.5. Incorporation, Reorganization. The Trustees may, without the
vote or consent of Shareholders, cause to be organized or assist in organizing a
corporation or corporations under the laws of any jurisdiction, or any other
trust, unit investment trust, partnership, association or other organization, or
a series or class thereof (called, a new entity) to take over all or a portion
of the Trust Property or the property belonging to any series or class of the
Trust, to carry on any business in which the Trust shall directly or indirectly
have any interest, and to sell, convey and transfer all or a portion of the
Trust Property or all or a portion of the Trust Property allocated or belonging
to a particular series or class of the Trust to any such new entity in exchange
for the shares or securities thereof or otherwise, and to lend money to,
subscribe for the shares or securities of, and enter into any contracts with any
such new entity in which the Trust holds or is about to acquire shares or any
other interest. Subject to the provisions of Section 8.4 hereof, the Trustees
may also cause a reorganization, merger, consolidation or sale of assets between
the Trust or any successor thereto and any such new entity if and to the extent
permitted by law.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Filing. The Declaration and any subsequent amendment hereto
shall be filed in the office of the Secretary of the Commonwealth of
Massachusetts and in such other place or places as may be required under the
laws of the Commonwealth of Massachusetts and may also be filed or recorded in
such other places as the Trustees deem appropriate, provided that the failure to
so file shall not invalidate this instrument or any properly authorized
amendment hereto. Each amendment so filed shall be accompanied by a certificate
signed and acknowledged by an officer or Trustee stating that such action was
duly taken in a manner provided herein, and unless such amendment or such
certificate sets forth some other time for the effectiveness of such amendment,
such amendment shall be effective upon its filing. A restated Declaration,
integrating into a single instrument all of the provisions of the Declaration
which are then in effect and operative, may be executed from time to time by a
majority of the Trustees and shall, upon filing with the Secretary of the
Commonwealth of Massachusetts, be conclusive evidence of all amendments
contained therein and may thereafter be referred to in lieu of the original
Declaration and the various amendments thereto.
Section 9.2. Governing Law. The Declaration is executed by the Trustees
and delivered in the Commonwealth of Massachusetts and with reference to the
laws thereof, and the rights of all parties and the validity and construction of
every provision hereof shall be subject to and construed according to the laws
of said Commonwealth.
28
Section 9.3. Counterparts. The Declaration may be simultaneously executed
in several counterparts, each of which shall be deemed to be an original, and
such counterparts, together, shall constitute one and the same instrument, which
shall be sufficiently evidenced by any such original counterpart.
Section 9.4. Reliance by Third Parties. Any certificate executed by an
individual who, according to the records of the Trust, appears to be an officer
or Trustee hereunder certifying to: (i) the number or identity of Trustees or
Shareholders, (ii) the due authorization of the execution of any instrument or
writing, (iii) the form of any vote passed at a meeting of Trustees or
Shareholders, (iv) the fact that the number of Trustees or Shareholders present
at any meeting or executing any written instrument satisfies the requirements of
the Declaration, (v) the form of any By-Laws adopted by or the identity of any
officers elected by the Trustees, or (vi) the existence of any fact or facts
which in any manner relates to the affairs of the Trust, shall be conclusive
evidence as to the matters so certified in favor of any Person dealing with the
Trustees and their successors.
Section 9.5. Provisions in Conflict with Law or Regulations.
(a) The provisions of the Declaration 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 or other provisions
of the Internal Revenue Code of 1986, as amended, or with other applicable laws
and regulations, the conflicting provision shall be deemed never to have
constituted a part of the Declaration; provided however, that such determination
shall not affect any of the remaining provisions of the Declaration or render
invalid or improper any action taken or omitted prior to such determination.
(b) If any provision of the Declaration 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 in any jurisdiction.
Section 9.6. Principal Office. The principal office of the Trust is 000
Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000. The agent for service of process in
the Commonwealth of Massachusetts is CT Corporation System, 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000. The Trustees, without a vote of Shareholders, may
change the principal office or registered agent of the Trust.
IN WITNESS WHEREOF, the undersigned have executed this instrument as of
the 21st day of November, 2002.
/s/ Xxxx X. Xxxxxxx
--------------------------
Xxxx X. Xxxxxxx
/s/ J. Xxxxxx Xxxxxxxx XX
-------------------------
J. Xxxxxx Xxxxxxxx XX
/s/ Xxxxxxx X. Xxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxx
--------------------------
Xxxxxxx X. Xxx
/s/ H. Xxxxxx Xxxxxx
--------------------------
H. Xxxxxx Xxxxxx
/s/ Xxxx X. XxXxxxxx
--------------------------
Xxxx X. XxXxxxxx
/s/ Xxxxx X. Xxxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxxxxx
--------------------------
Xxxx X. Xxxxxxx
APPENDIX A
FORM OF
ESTABLISHMENT AND
DESIGNATION OF SERIES OF SHARES OF
BENEFICIAL INTEREST
The Trustees of the Trust, acting pursuant to the Trust's Declaration,
have previously established and designated the series (each, a "Fund") of Shares
of Beneficial Interest listed below.
1. The Funds are:
Touchstone International Equity Fund
Touchstone Emerging Growth Fund
Touchstone Small Cap Value Fund
Touchstone Growth/Value Fund
Touchstone Large Cap Growth Fund
Touchstone Enhanced 30 Fund
Touchstone Value Plus Fund
Touchstone Growth & Income Fund
Touchstone Balanced Fund
Touchstone High Yield Fund
Touchstone Bond Fund
Touchstone Standby Income Fund
Touchstone Money Market Fund
2. Each Fund shall be authorized to hold cash, invest in securities,
instruments and other property and use investment techniques as from time to
time described in the Trust's then currently effective registration statement
under the Securities Act of 1933 to the extent pertaining to the offering of
Shares of the Fund. Each Share of each Fund shall be redeemable as provided in
the Declaration. Subject to differences among classes, each Share of each Fund
shall be entitled to vote on matters on which Shares of the Fund shall be
entitled to vote as provided in Article V of the Trust's Declaration, shall
represent a pro rata beneficial interest in the assets allocated or belonging to
the Fund, and shall be entitled to receive its pro rata share of the net assets
of the Fund upon liquidation of the Fund, all as provided in Section 5.9 of the
Declaration. The proceeds of sales of Shares of each Fund, together with any
income and gain thereon, less any diminution or expenses thereof, shall
irrevocably belong to the Fund, unless otherwise required by law.
3. Shareholders of each Fund shall vote separately as a class on any
matter to the extent required by, and any matter shall have been deemed
effectively acted upon with respect to the Fund as provided in, Rule 18f-2, as
from time to time in effect, under the 1940 Act or any successor rule, and the
Declaration.
2
4. The assets and liabilities of the Trust shall be allocated among each
Fund and any series of the Trust designated in the future as set forth in
Section 5.9 of the Declaration.
5. Subject to the provisions of Section 5.9 and Article VIII of the
Declaration, the Trustees (including any successor Trustees) shall have the
right at any time and from time to time to reallocate assets and expenses or to
change the designation of each Fund, or otherwise to change the special and
relative rights of each Fund.
6. Any Fund may be terminated by the Trustees at any time by written
notice to the Shareholders of the Fund.
IN WITNESS WHEREOF, the undersigned have executed this instrument as of
the 21st day of November, 2002.
/s/ Xxxx X. Xxxxxxx
--------------------------
Xxxx X. Xxxxxxx
/s/ J. Xxxxxx Xxxxxxxx XX
-------------------------
J. Xxxxxx Xxxxxxxx XX
/s/Xxxxxxx X. Xxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxx
--------------------------
Xxxxxxx X. Xxx
/s/ H. Xxxxxx Xxxxxx
--------------------------
H. Xxxxxx Xxxxxx
/s/ Xxxx X. XxXxxxxx
--------------------------
Xxxx X. XxXxxxxx
/s/ Xxxxx X. Xxxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxxxxx
--------------------------
Xxxx X. Xxxxxxx
APPENDIX B
ESTABLISHMENT AND
DESIGNATION OF CLASSES
No classes are designated as of the date of the Declaration.
